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 (Assisted Reproduction and Gynaecology Centre & Another) v Human Fertilisation and Embryology Authority
LTL 31/1/2002 ILR 6/2/2000 TLR 2/3/2002

25 April 2001

High Court (Queen's Bench Division)

Ouseley J

Judicial review (renewed application for permission to apply)

Health - fertility rights

Article 12,  Article 8

Human Fertilisation & Embryology Authority Code of Practice, para.7.9

Even employing anxious scrutiny test required where Arts 8 & 12 ECHR engaged, respondent’s decision (as one taken by expert scientific body) not to permit certain treatment was not outside range of responses open to it, and therefore unassailable on grounds of rationality

Goldsmith v Her Majesty's Commissioners for Customs and Excise
2001 EWHC Admin 285 TLR 12/6/01 (2001) 1 WLR 1673

25 April 2001

High Court (Administrative)

Woolf LCJ ,  Poole J

Appeal (case stated)

Crime - procedure

Art 6(2)

Customs and Excise Management Act 1979

Excise Duties (Personal Reliefs) Act 1992

1) Condemnation of goods proceedings are not “criminal” nor, therefore, subject to Art.6 (2) presumption of innocence; 2) even if Art. 6 (2) applicable, reverse onus on defendant to show imported goods not held for commercial purposes is proportionate

R (Fleurose) v Securities and Futures Authority Ltd
TLR 15/1/2002 (2002) IRLR 297

26 April 2001

High Court (Queen's Bench Division)

Morison J

Judicial review (substantive hearing)

Professions

Article 6,  Article 7

Financial Services Act 1986

Securities and Futures Authority Rules (Sched. 2) and Statement of Principles (s47A)

i) SFA disciplinary proceedings to be classified as civil rather than criminal for purposes of Art 6; ii) even so, certain requirements under Art 6(2) & (3) might apply; however iii) in circumstances no breach Art 6 requirements in respect of privilege against self-incrimination, equality of arms (legal assistance), or certainty of charges

Donoghue v Poplar Housing and Regeneration Community Association
2001 EWCA Civ 595 TLR 27/4/2001 (2001) 3 WLR 183 (2001) UKHRR 693 (2001) 4 All ER 604

27 April 2001

Court of Appeal

Lord Woolf CJ ,  May LJ ,  Parker LJ

Appeal against possession order; alication for declaration of incompatibility

Housing

Article 6,  Article 8

s21(4) Housing Act 1988

Qualified privilege i) whether housing association is s6 HRA public authority ie. is it performing public functions (s6(3)(b)) HRA, and is renting accommodation a private act (s6(5)); ii) whether courts’ restricted power under s21(4) Housing Act 1988 breaches Art 8

(i) Act can be private even if performed because another body under public duty to ensure it is performed; iii) on facts, house association in renting accommodation and then seeking possession, assimilated local authority’s role, so that act is public; (iii) question of s21 HA 1988’s legitimacy and proportionality belong to policy area, Parliament’s domain; iv) obiter guidance on s3 and s4 HRA; s3 does not entitle court to legislate, its task is still one of interpretation

Loutchansky v Times Newspapers Ltd & Others
LTL 27/4/2001 (2001) EMLR 898

27 April 2001

High Court (Queens Bench Division)

Gray J

Defamation

Defamation,  Freedom of expression

Article 10,  Article 8

Qualified Privilege

Although Reynolds v Times Newspapers [1999] 3 WLR 1010 enlarged ambit of qualified privilege i) the defence still requires both an interest in the public receiving information and existence of corresponding duty on publisher; ii) public’s right to know could not necessarily trump action in libel because publisher retains duties under Art 10(2), including respect for the reputation of others, that can legitimately curtail the right to know, according to particular circumstances

R v Tagg
TLR 14/6/2001 (2001) Crim LR 900 (2002) 1 CAR 2 (2002) 1 CAR 22

30 April 2001

Court of Appeal

Rose LJ ,  Leveson J ,  Mitting J

Appeal against conviction and costs

Crime - procedure

Art 6(1),  Art 6(3)

1) Whether domestic law concept of drunkenness in Neale v RMJE 80 Cr App R 20 too vague; 2) whether failure to secure defence witnesses’ attendance results in inequality of arms

(i) Dictionary definition of “drunkenness” in Neale sufficiently precise for ECHR purposes; (ii) usual checks and balances at trial prevent absence of witnesses causing unfairness

Orange v Chief Constable of West Yorkshire Police
2001 EWCA Civ 611 TLR 5/6/2001 (2001) 3 WLR 736

01 May 2001

Court of Appeal

Latham LJ ,  Lord Philips MR ,  Peter Gibson LJ

Appeal against dismissal of claim for damages

Tort - negligence

Article 2

Whether duty of care to prevent individual in custody from taking own life arises only if he presents foreseeable risk of suicide, or whether this duty is owed to all in custody

(i) Custodian’s general duty of care encompasses obligation to take reasonable steps to identify whether individual in custody presents suicide risk; (ii) however, obligation to take reasonable care to prevent person in custody from taking own life only arises where the custodian “knows or ought to know” that individual presents a suicide risk; (iii) on facts, though cell did not comply with Home Office regulations, no breach of duty of care

(1) HM Advocate (2) HM Advocate General for Scotland v McIntosh
LTL 6/2/2001 TLR 8/2/2001 ILR 16/2/2001 (2001) 2 All ER 638 (2001) 3 WLR 107 (2001) UKHRR 463 (2001) HRLR 20 (2001) 2 CAR 490 (2001) 2 CAR 27

02 May 2001

Privy Council

Lord Bingham ,  Lord Clyde ,  Lord Hoffmann ,  Lord Hope ,  Lord Hutton

Appeal from High Court of Justiciary (devolution issue)

Crime - sentencing

Article 6,  Protocol 1 Article 1

S3(2) Proceeds of Crime (Scotland) Act 1995

R v Benjafield & Others (TLR 28.12.00)

(i) Accused entitled to protection under Art 6(1), common law and language of statute in proceedings for confiscation order: in making assessment for confiscation order court must act with scrupulous fairness; (ii) Even if Art6(2) does apply to proceedings for confiscation order, if discretion properly exercised, confiscation procedure is a reasonable and proportionate response to a substantial public interest

Wilson v First County Trust
2001 EWCA Civ 633 TLR 16/5/2001 (2001) 3 WLR 42 (2001) 3 All ER 229 (2001) UKHRR 1175

02 May 2001

Court of Appeal

Chadwick L.J ,  Rix LJ ,  Sir Andrew Morritt V-C

Appeal against regulated agreement enforcement order following adjournment in Wilson v First County Trust (CA 23.11.00, TLR 06.12.00).

Consumer credit

Article 6

i) Whether HRA applies to regulated agreement made prior HRA; ii) whether s127(3) Consumer Credit Act 1974 is compatible

(i) Pursuant to s6(3) HRA, court to ask in cases after 2 Oct whether order which it is about to make is compatible; (ii) effect of s12(3) is that creditor’s Convention rights are infringed to an extent disproportionate to legitimate aim; (iii) not possible to read s127(3) CCA 1974 in compatible way, therefore court issued a declaration of incompatibility

R v Sherwood
2001 EWCA Cri 1075 TLR 12/6/2001 (2001) 1 WLR 1983

03 May 2001

Court of Appeal

Douglas Brown J ,  Eady J ,  Longmore LJ

Appeal against order postponing publication

Crime,  Freedom of expression

Article 10,  Article 6

Whether likely prejudice to defendants arising from publishing information about related trial before defendants’ trial outweighs freedom of expression; s4(2) Contempt of Court Act 1981

Before making s4(2) order court has to consider: i) whether reporting would create ‘not insubstantial’ risk of prejudice; ii) if so, whether s.4(2) order would eliminate risk, including whether less restrictive means would do; iii) even if so satisfied, court to make value judgement on priority between “competing public interests”

O’Shea v MGN & Another
(2001) EMLR 943

04 May 2001

High Court (QBD)

Morland J

Defamation

Defamation,  Freedom of expression

Article 10

Whether applying the strict liability principle for unintentional defamation to “look alike” cases breaches Art10

Strict liability principle should not cover “look alikes” situation because it would be contrary to Art 10, constituting unjustifiable interference with freedom of expression disproportionate to the legitimate aim of protecting “look alike’s” reputation

R (Painter) v Carmarthenshire County Council Housing Benefit Review Board; R (Murphy) v (1) Westminster City Council and (2) Westminster CC Housing Benefit Review Board and (3) the Secretary of State for Social Security
2001 EWHC Admin 308 T.L.R. 16/05/01

04 May 2001

High Court (Administrative)

Lightman J

Judicial review (substantive hearing)

Social/welfare benefits

Article 14,  Article 8

s 130 and 137 Social Security Contributions and Benefits Act 1992

reg. 7(1)(c)(i) Housing Benefits (General) Regulations 1987

1) Reg. disentitling from housing benefit claimant residing with former partner as his tenant was not incompatible with Arts. 8 /14: i) any discrimination (compared with non-ex-partners) was justified and proportionate in preventing abuse of housing benefits system; ii) Secretary of State’s policy decision within margin of discretion: R v SSHD ex p. Isiko

Terry v Hoyer
2001 EWCA Civ 678

04 May 2001

Court of Appeal

Pill LJ ,  Arden J ,  Dyson LJ

Appeal against order striking out of claim for unfair dismissal

Civil procedure - vexatious litigation

Article 6

Employment Tribunal (Constitution and Rules of Procedure) Rules 1993

Article 6 made no difference to the approach that was to be adopted in strike out proceedings. The HRA created no need for any radically different approach to vexatious claims

R (S) v Swindon Borough Council & Another

04 May 2001

High Court (Queen's Bench Division)

Scott Baker J

Judicial review (substantive hearing)

Family

Article 8

Children Act 1989. s47 (duty to make enquiries where reasonable cause to suspect child suffering / likely to suffer significant harm)

Children Act 1989 did not require local authorities to reach finding on balance of probabilities as to likelihood of significant harm to a child before they could undertake s47 investigations; in the circumstances Art 8 added nothing to the balancing exercise previously carried out in domestic law

R v Thakrar
2001 EWCA Crim 1096

09 May 2001

Court of Appeal

Keene LJ ,  Mackay J ,  Sir Brian Smedley

Appeal against conviction and sentence

Crime - legal assistance

Art 6(1)

R v Nangle (CA, 01.11.00); R v Togher [2001] CLR 124

Solicitors’ failure to properly carry out duties does not render conviction automatically unsafe; but if failure deprives defendant of fair trial under Art 6, then normally conviction will be unsafe and should be quashed

Roszkwoski v A Special Adjudicator
LTL 9/5/2001

09 May 2001

Court of Appeal

Schiemann LJ ,  Robert Walker LJ ,  Tuckey LJ

Judicial review (substantive hearing)

Asylum,  Immigration

Article 3

Asylum and Immigration Appeals Act 1993, para 5 to Schedule 2 (as amended by Asylum and Immigration Act 1996); s1 Criminal Justice Act 1988

Taking into consideration definitions of torture under Art 1(1) UN Convention Against Torture 1984 and s134 Criminal Justice Act 1988, correct test under para. 5 A&IA 1993, para.5 is whether the evidence establishes a reasonable likelihood that applicant was tortured. ("Perversity" test applied in reviewing Special Adjudicator's determination as to whether applicant had well-founded fear of persecution).

Re T (a child)
(2001) 2 F.L.R. 1190 (2001) 3 F.C.R. 577

10 May 2001

High Court (Fam)

Bodey J

Application against refusal of blood tests to ascertain paternity

Family

Article 8

S21 Family Law Reform Act 1969

whether it was in the “best interests of a child”, to have blood tests at the instigation of applicant who claimed to be the father

(i) Under s21 FLRA 1969, the test was the child’s best interests; these had to be weighed against the affected adults’ interests; (ii) on facts, under domestic law and having regard to Art 8 rights of the parties involved, child’s best interests lay in having blood tests

A Health Authority v X & Others

10 May 2001

High Court (Family Division)

Munby J

Application for disclosure of confidential documents

Health - confidentiality

Article 8

Confidence

Disclosure of confidential documents (GP records and care proceedings documents) can be ordered if proportionate interference with Art 8 rights, and so long as disclosure subject to appropriate express conditions maintaining confidentiality (as regards public domain) and patient anonymity

R (N) v Ashworth Special Hospital Authority
TLR 26/6/2001 (2001) HRLR 46

11 May 2001

High Court (Queen's Bench Division)

Newman J

Judicial review (substantive hearing)

Mental health

Article 8

Ashworth, Broadmoor and Rampton Hospitals Directions 2000

Exercise of discretionary power in special hospital authorities randomly to intercept phone calls of detained patients i) interferes with Art 8; but ii) pursues legitimate aim of discharging duty to provide services for patients detained under MHA 1983 (s4 NHS Act 1977); and iii) proportionate, even where individual patient concerned is not assessed as high security risk

R (Bozturk) v Thames Magistrates’ Court
TLR 26/6/2001

14 May 2001

High Court (QBD (DC))

Lord Woolf CJ ,  Bell J

Judicial review (substantive hearing)

Crime - legal assistance

Article 14,  Article 6,  Article 8

s78 PACE

Whether allowing interpreter who had been present at interview between client and solicitor, to testify for the prosecution breaches Convention

i) Art 6(3)(c) required that if interpreter is needed during client-solicitor interview, interpreter should be subject to same duty of confidentiality as solicitor; ii) interpreter’s evidence on when defendant consulting solicitor should not be admitted; iii) on facts, interpreter’s evidence admissible because it concerned the procedure followed at police station (not solicitor interview)

R (Noorkoiv) v Home Secretary & Another
2002 EWCA Civ 770 ILR 2/7/2001

14 May 2001

High Court (QBD (Admin))

Henriques J

Judicial review (substantive hearing)

Prisoners

Article 5

Whether Parole Board acted lawfully in listing prisoner’s review hearing after his tariff had expired

(i) Given the magnitude of Parole Board’s task some delay is inevitable, but is kept to the necessary and absolute minimum; (ii) guaranteed 3 months maximum period between tariff expiry and review do not breach Art 5(4)

Marcic v Thames Water Utilities Ltd
(2001) 3 All ER 698 (2001) HRLR 53

14 May 2001

High Court (QBD (Technology and Construction Court))

Richard Havery QC

Preliminary issue in claim for damages and injunction

Nuisance,  Tort - negligence

Article 8,  Protocol 1 Article 1

Water Industry Act 1991

Whether statutory sewerage undertaker liable at common law or under HRA for failure to drain claimant’s area

(i) There is no liability in either negligence or nuisance for non-feasance in respect of performance of defendant’s drainage statutory duty; (ii) claimant’s Convention rights had been infringed, and defendant had failed to prove that the system devised to allocate drainage priorities struck a fair balance between claimant’s interests and the interests of other customers; (iii) injunction refused, damages to be determined

R v A (sub nom R v Y)
(2001) 2 WLR 1546 (2001) 3 All ER 1 (2001) UKHRR 825 (2001) HRLR 48 (2001) 2 CAR 351 (2001) Crim LR 909

17 May 2001

House of Lords

Lord Clyde ,  Lord Hope ,  Lord Hutton ,  Lord Slynn ,  Lord Steyn

Crown’s appeal against CA’s obiter

Crime - evidence (public interest immunity)

Article 6

S41 Youth Justice and Criminal Evidence Act 1999

R v Seaboyer (1991) 83 DLR (4th)

(i) Depending on circumstances, prior sexual contact between complainant and accused could be relevant to consent; (ii) s41 was disproportionate because constituted blanket exclusion of potentially relevant evidence; (iii) pursuant to s3HRA, it is possible to read s41(3)(c) compatibly as subject to test of whether evidence/ questioning is nevertheless so relevant to issue of consent that to exclude it would endanger fairness under Art 6, due regard paid to sparing complainant’s humiliation

A-G’s Reference (No 3 of 2000)
(2001) 1 CAR(S) 92

17 May 2001

Court of Appeal

Curtis J ,  Hughes J ,  Kennedy LJ

A-G’s Reference on point of law

Crime - procedure

Article 6

Whether defence of entrapment available in domestic law; Loosely (CA 13 April 2001); Texeira de Castro v Portugal [1988] 28 EHRR 101

Following test complies with Art6: whether police officers do no more than afford accused with opportunity to offend, of which accused freely takes advantage in circumstances where it appears that he/she would have behaved similarly if opportunity had been offered by someone else, or whether they have persuaded him/her to commit offence of a kind which accused would otherwise not have committed

Wallbank & Others v The Parochial Church Council of Aston Cantlow
(2002) 63 BMLR 154 LTL 18/4/200

17 May 2001

Court of Appeal

Robert Walker LJ ,  Sedley LJ ,  Sir Andrew Morritt VC

Appeal (preliminary issue)

Ecclesiastical

Protocol 1 Article 1

Chancel Repairs Act 1932

Common law liabilities of lay rector of parish church

1) Parochial Church Council is a public authority under s6 HRA 1998; 2) modern liability of lay owners of formerly glebe land to defray unmet costs of repairs to chancel of parish church is form of taxation prohibited by a) Art 1 of Prot 1 as arbitrary; b) Art 14 ECHR as unjustifiably discriminatory, as regards other landowners