DATABASE OF CASES UNDER THE HUMAN RIGHTS ACT 1998

Claire O'Brien & Janet Arkinstall *

Please note that the Human Rights Act Research Project concluded its work in September 2002. Although correct at the time of writing, some of the information on these webpages (for example the database of cases under HRA 1998) is therefore historical and should not be considered as representing the present state of the law.

R v Williams
TLR 30/3/2001

14 March 2001

Court of Appeal

Sachs J ,  Dyson LJ ,  Stanley Burnton J

Appeal

Crime - procedure

Article 6

Test for safety of conviction

Omission of an element of an offence from direction to jury would only involve a breach of Art 6(1) and Art 6(2) if the omission was significant. The court applied the test in Davis, Rowe & Johnson (CA 17.07.00) that a legal misdirection or non-direction is not significant unless it was possible that, but for the error of law, the jury would have acquitted. On the facts here, the omission was not significant; appeal therefore dismissed

R v Mercer
2001 EWCA Crim 638

15 March 2001

Court of Appeal

Garland J ,  Keene LJ ,  Sachs J

Appeal against conviction

Crime - procedure

Article 6

Court Procedure; Whether there is Art 6(3)(a) breach if Crown does not in pretrial summary specify defendant’s role in “joint enterprise” robbery

Sufficient for Art 6 purposes that defendant knows he is charged with taking part in “joint enterprise” robbery; precise actions a matter of evidence at trial

R v Bailey and Others

15 March 2001

Court of Appeal

Judge LJ ,  Cresswell J ,  Ousley J

Appeals against conviction and sentence

Crime - evidence

Article 6,  Article 8

Police procedure; Whether undercover police officers recording conversation with defendant once they were invited into defendant’s flat violates Art 8 rights

(i) Conversations only private in the narrow sense that took place in defendant’s home and that defendant expected confidentiality; (ii) entry in these circumstances does not violate private and family life

R (Balbo B & C Auto Transporti Internationali) v Secretary of State for the Home Department
TLR 22/3/2001 (2001) 1 WLR 1556 (2001) 4 All ER 423

15 March 2001

High Court (Queen's Bench Division (Divisional Court))

Brooke LJ ,  Potts J

Judicial review (substantive hearing)

Asylum,  Immigration

Article 6

Immigration & Asylum Act 1999, ss32, 34 (penalty notices for carriage of clandestine entrants)

As a preliminary issue i) Art 6(1) would be violated if penalty notices were to be challenged by judicial review (of Home Secretary’s decision as to whether party served with notice had viable defence) ii) therefore IAA 1999 to be interpreted as requiring any defence to notice to be raised during Home Secretary’s proceedings to recover penalty

R v Smethurst
TLR 13/4/2001 (2001) Crim LR 657 (2002) 1 CAR 50 (2002) 1 CAR 6

20 March 2001

Court of Appeal

Lord Woolf CJ ,  Astill J ,  Douglas Brown J

Appeal against conviction

Crime,  Freedom of expression

Article 10,  Article 8

s1(1) Protection of Children Act 1978

R v GrahamKerr (1989) 88 CR app R 302

HRA did not change pre-Oct 2000 interpretation of s1(1)(a) Protection of Children Act 1978 (offence of making indecent photographs of children) under decision in R v GrahamKerr

R (MacNeil) v Discretionary Lifer Panel
2001 EWCA Crim 448 TLR 18/4/2001

21 March 2001

Court of Appeal

Peter Gibson LJ ,  Latham LJ ,  Lord Phillips MR

Judicial review (appeal)

Prisoners

Article 5

Whether Parole Board’s decision not to review applicant’s case till two years have passed from previous review violates Art 5(4); Oldham v UK (2000) Crim LR 1011

(i) ECtHR in Oldham explicitly abstained from ruling on maximum period between reviews, as it depends on particular facts; (ii) on facts, Parole Board’s decision not disproportionate or irrational

R (on the application of DPP) v Redbridge Youth Court: R (on the application of L) v Bicester Youth Court
(2001) 1 WLR 2403 (2001) 1Crim LR 473

22 March 2001

High Court (QBD)

Latham LJ ,  Astill J

Judicial review (substantive hearing)

Crime - evidence

Article 6

ss 32, 32A Criminal Justice Act 1988

Procedures in ss 32 & 32A Criminal Justice Act 1988 on use of video interviews / links provide adequate opportunity for courts to strike balance between i) child witnesses’ rights to give evidence without appearing in court, and ii) defendants’ rights under Art 6

R (AP, MD and JS) v Leeds Youth Court
2001 EWHC Admin 215

23 March 2001

High Court (Administrative)

Kennedy LJ ,  Astill J

Judicial Review

Crime - procedure

Article 6

s 24 Magistrates’ Courts Act 1980 s 53 Children and Young Persons Act 1933

Magistrates’ Courts (Advanced Information) Rules 1985

Art. 6 does not empower magistrate to dismiss proceedings for abuse of process due to late service by prosecution: i) the sanction for failure to comply with r4 was set out in r 7, and allowed adjournment; ii) there could be no legitimate expectation of dismissal where dismissal would be unlawful

Attorney-General v (1) Steen & (2) Punch Ltd
2001 EWCA civ 403 TLR13/03/01 (2001) 2 WLR 1713

23 March 2001

Court of Appeal

Phillips MR ,  Longmore LJ ,  Simon Brown LJ

Appeal (against conviction)

Crime

Article 10

Common law of contempt of court

Widening scope of third party contempt jurisdiction so as to enable prosecution of publisher where no proof of damage to national security (from publication of former MI5 employee’s disclosures which were subject of injunction) would be i) disproportionate restriction on press freedom under Art. 10 and ii) inconsistent with court’s duty under s12(3) HRA 1998. Appeal allowed on basis of traditional legal principle - HRA confirmed that result.

R (Ponting) v Governor of HM Prison Whitemoor and Another
2001 EWHC Admin 241

26 March 2001

High Court (QBD (Admin))

Newman J

Judicial review (substantive hearing)

Access to justice,  Disability,  Prisoners

Art 6(1)

Right of access to court; whether as a result of litigation by prisoner suffering from dyslexia, prison policy on IT access violates right of access to court

(i) There can be circumstances where provision of IT facilities required for meaningful access to court; (ii) in the course of application new policy on IT access devised; (iii) however, applicant wanted access to his own computer: Art 6 therefore not engaged

R v Everson
2001 EWCA Crim 896

27 March 2001

Court of Appeal

Dyson LJ ,  Dyer J ,  Steel J

Appeal (against conviction)

Crime - evidence

Article 6,  Article 8

s. 34 Criminal Justice and Public Order Act 1994 Police Act 1997

Intrusive Surveillance Code of Procedure

1) On the facts, applying Condron v UK, and notwithstanding new Condron specimen directions that conviction cannot be based wholly or mainly on silence, adverse inference direction (police station silence) adequate for purposed Art 6; 2) admission of video evidence obtained in breach of Art. 8 (because guidelines were not published and ‘in accordance with law’) did not result in unfair trial: Khan v UK; Shenk v Switzerland

R(H) v Home Secretary
(2001) HRLR 752 (2001) UKHRR 717 (2001) ACD 432 (2001) 3 WLR 512 (2002) QBD 1 LTL 28/3/2001

28 March 2001

Court of Appeal

Dyson LJ ,  Kennedy LJ ,  Lord Phillips MR

Judicial review (appeal)

Mental health

Article 5

Discharge criteria under Mental Health Act 1983 ss72 &73; HRA 1998, ss 3 & 4

MHA 1983 ss72 & 73 incompatible with Art 5 in so far as they put burden of proof on patient to show detention not justified; declaration of incompatibility issued under s4 HRA 1998

Secretary of State for Defence v (1) Times Newspapers Ltd and (2) John Witherow; Secretary of State for Defence v R

28 March 2001

High Court (QBD)

Blofeld J

Applications for variations of orders restraining publication

Confidence,  Privacy

Article 10,  Article 2,  Article 3,  Article 6

n/a

Overriding principle of open justice did not apply in every case but great care had to be exercised before it was departed from exceptionally in interests of (1) national security (2) right to life and (3) right not to be subjected to torture/inhuman treatment

R (Pamplin) v Law Society
ILR 9/7/2001 LTL 13/7/2001

30 March 2001

High Court (Administrative Court)

Newman J

Judicial review (substantive hearing)

Professions

Article 6,  Article 8

Disclosure of confidential information; Art 8

Whether disclosure of confidential material was in breach of Art 8 turns on nature of particular matters concerned; principle of Woolgar v Chief Constable of Sussex & Another (2000) 1 WLR 25 re reasonable disclosure of confidential information by police to professional body in public interest remains applicable, subject to justification under Art 8(2)

R (Professional Contractors Group Ltd & Others) v IRC
TLR 05.04.01

02 April 2001

High Court (Queen's Bench Division)

Burton J

Judicial review (substantive hearing)

Taxation

Protocol 1 Article 1

sIR 35 (contained in s75 & s76 Welfare Reform & Pensions Act 1999 and s60 & Sch. 12 Finance Act 2000)

Impact of measures to counter tax and NI avoidance not arguably so severe to amount to de facto confiscation of property; fundamental interference with applicants’ financial position; or abuse of UK’s right to levy taxes. Subjecting contractors to common law of employment did not interfere with rights under Art 1 Prot 1 or fundamental rights under EC law

R (Pearson & Martinez) v Home Secretary and Others
TLR 17/4/2001 ILR 21/5/2001 (2001) HRLR 39

04 April 2001

High Court (QBD (Divisional Court))

Kennedy LJ ,  Garland J

Judicial review (substantive hearing); application for declaration of incompatibility

Prisoners

Article 14,  Protocol 1 Article 3

s3(1) Representation of the People Act 1983

(i) Court did not identify specific legitimate aim served by interference with right to vote; (ii) in assessing proportionality of interference, court deferred to Parliament; (iii) no breach of Prot 1 Art 3, no separate Art 14 issue

R (Sunder) v Home Secretary

05 April 2001

High Court (QBD)

Stanley Burnton J

Judicial review (substantive hearing

Prisoners

Article 5,  Article 6

Whether Arts 5/ 6 apply to decision to recategorise prisoner

R v Secretary of State for the Home Department ex p McAvoy [1998] 1 WLR 790 (CA)

Arts 5 and 6 not engaged: (i) since continued detention justified under Art 5(1)(a), the fact that categorisation can prolong detention does not bring decision within Art 5; (ii) even if matters constituting criminal offences were taken into account in reaching decision, categorisation did not determine a) civil rights/ obligations or b) criminal charge

R (Sayania) v Immigration Appeal Tribunal & Another
LTL 6/4/2001

05 April 2001

High Court (Queen's Bench Division)

Stanley Burnton J

Judicial review (substantive hearing)

Asylum,  Immigration

Article 8

Rule 317(1)(f) Immigration Rules

i) Policy of Rule 317(i)(f) lawful as regards compatibility with Art 8 ECHR and otherwise, following approach of ex parte Mahmood ([2001] 1 WLR 840), and ex parte Isiko ([2001] 1 FLR 930); ii) the “most exceptional compassionate circumstances” under the rule requires considerably more than applicant’s financial dependency on relatives within UK

R (Tucker) v Secretary of State for Social Security
2001 EWHC Admin 260

06 April 2001

High Court (Administrative)

Maurice Kay J

Judicial review (substantive hearing)

Social/welfare benefits

Article 14,  Article 8

S 130 Social Security Contributions and Benefits Act 1992

Reg. 7 (1) (d) Housing Benefit (General) Regulations 1997

Regulation disentitling claimant to housing benefit as a tenant liable to pay rent to the father of her child lawful: i) no breach Arts. 8/14, as any discrimination (in comparison with person not responsible for child of landlord) was legitimate and proportionate in prevention of abuse ii) no breach of principle of legality because words of regulation not ambiguous (R v Worcester County Council ex p. SW, unreported QBD 28.07.01)

P v (1) National Union of School Masters (2) Union of Women Teachers
TLR 25/05/01

09 April 2001

High Court (Commercial)

Morison J

Action against union

Education

Protocol 1 Article 2

s 235A Trade Union & Labour Relations (Consolidation) Act 1992

Student had no claim for breach of right to education under HRA, where, following his return after exclusion order, one-to-one tuition was provided instead of classroom attendance

Austin Hall Building Ltd v Buckland Securities Ltd

11 April 2001

High Court (Technology and Construction Court)

Bowsher J

Application for summary judgment

Construction

Article 6

S108 Housing Grants, Construction and Regeneration Act 1996

i) Adjudicator under s108 not a “public authority” under HRA 1998, because adjudication outside ECHR definition of “legal proceedings”, and not decisive of civil rights and obligations (Bryan v UK (1995) 21 EHRR 342), so that adjudicator not a “court or tribunal” under ss6 & 21 HRA 1998; ii) if s6 did apply, no breach Art 6(1) requirements of publicity or, on the facts, of determination “within a reasonable time,” therefore adjudication secure under s6(2)(a) HRA

Nasser v United Bank of Kuwait
(2002) 1 All ER 401

11 April 2001

Court of Appeal

Mance LJ ,  Simon Brown LJ

Application to discharge order to pay security for costs

Access to justice

Article 14,  Article 6

CPR Pts 25.15 & 25.13(2)(a)

i) According to CPR objectives and to Art 6 requirements, CPR had introduced same rule on security for costs in appellate proceedings as previously applied at first instance; ii) discretion to award security on grounds of residence outside Brussels & Lugano jurisdictions to be exercised compatibly with Arts 6 and 14 (i.e. on basis of objectively justified grounds as to likely difficulty of enforcing judgment)

Secretary of State for Industry v Crane & another
LTL 18/4/2001 TLR 4/6/2001

11 April 2001

High Court (Chancery Division)

Ferris J

Appeal (Registrar in Bankruptcy)

Civil procedure,  Company law - directors

Article 6

s 20(2) Company Directors’ Disqualification Act 1996

Court’s common law duty of fairness

Not objectionable, either under general law or Art 6 ECHR, for a prosecuting authority to obtain “helpful ideas” from other proceedings (here, disqualification proceedings) based on same facts, given CDDA 1986 s20(2)’s prohibition on any actual use of statements made during such proceedings

R v Loveridge and Others
2001 EWCA Crim 1034 TLR 3/5/2001 (2001) 2 CAR 591 (2001) 2 CAR 29

14 April 2001

Court of Appeal

Lord Woolf CJ ,  Astill J ,  Douglas Brown J

Applications for leave to appeal against conviction and sentence

Crime - evidence

Article 6,  Article 8

S41 Criminal Justice Act 1925;

Defendants filmed whilst in magistrates’ court and film used for face mapping

(i) Secret filming in court by police contrary to law, so that Art 8 breached; (ii) on facts, Art 8 breach did not interfere with fairness of proceedings

R v H (Reasonable chastisement)
2001 EWCA Crim 1024 (2002) 1 Cr. App.R. 7 TLR 17/05/2001

25 April 2001

Court of Appeal

Leveson J ,  Mitting J ,  Rose LJ V-P

Appeal by Crown

Crime - procedure

Article 3,  Article 6,  Article 7

1) Whether need to modify jury direction on reasonable chastisement defence in light of HRA/ A v UK 1998 27 EHRR 611; 2) whether modification breaches Art 7

Jury direction that took into consideration factors which determined whether chastisement was reasonable according to ECtHR in A v UK (i) is appropriate and (ii) does not violate Art 7