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 (P & Q) v Home Secretary Appeal: see R (P & Q) v Secretary of State for the Home Department 20/07/2001 QBD
TLR 1/8/2001 (2001) 1 WLR 2002 (2001) UKHRR 1035

17 May 2001

High Court (Queen's Bench Division)

Lord Woolf CJ ,  Lightman J

Judicial review (substantive hearing)

Family

Article 14,  Article 8

Children Act 1989, ss 1& 17

Prison Service Order No 4801 of 10 May 2000

common law doctrine of fundamental rights

Unlike the position in ex parte Witham ([1997] 2 All ER 779), the purpose of the challenged policy was to promote, not to abridge rights; no unlawful interference with Art 8 right to respect for family life; no discrimination againt the applicants as prisoners under Art 14

Dar v Taylor & Another
LTL 27/6/2001

17 May 2001

High Court (Queen's Bench Division)

Eady J

Appeal from order lifting stay on a libel action

Civil procedure

Article 6

CPR Part 51

i) Where a claimant had a prima facie case in libel it would be unduly harsh to prevent the claimant from proceeding altogether, and arguably contrary to the claimant’s rights under Art 6 ECHR; ii) On the facts, as claimant’s deliberate conduct had severely prejudiced the defendant, stay would be lifted only on basis that claim for special damages withdrawn

King v Walden (HM Inspector of Taxes)
TLR 12/6/2001

18 May 2001

High Court (Chancery Division)

Jacob J

Appeal (Special Commissioner for Tax)

Taxation

Article 6

Penalty determinations under Income & Corporation Taxes Act 1988; Taxes Management Act 1970, s101

1) Under ss3 & 22(4) HRA 1998, that Act applies to appeal in proceedings initiated prior to 2 Oct 2000 (ex p Kebilene, ex p Benjafield); 2) penalty assessments involve a criminal charge for purposes of Art 6(2) ECHR; 3) no breach of presumption of innocence in limited presumption under s101 TMA 1970 relating to appeals from assessment

R v Elwell and Derby
2001 EWCA Crim 1320

18 May 2001

Court of Appeal

Kennedy LJ ,  Curtis J ,  Hughes J

Appeal against conviction

Crime

Article 6

S 78 Police and Criminal Evidence Act 1984

Common law of entrapment

Entrapment not a defence in English law (Sang [1980] AC 402), therefore no breach of general right to a fair trial in Art. 6 in disallowing evidence and arguments relating to abuse of process application / exercise of s 78 PACE discretion from being put before jury

R (Whitehead & another) v Chief Constable of Avon & Somerset

21 May 2001

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

Richards J

Judicial review (substantive hearing)

Police

Article 6

Police & Criminal Evidence Act, s104(1)

double jeopardy

i) S104(1) PACE 1984 not interpretable under s3 HRA 1998 so as to include, in expression “convicted or acquitted”, stay of proceedings; ii) Art 6(2) inapplicable to police disciplinary proceedings; iii) even if Art 6 applicable, no breach of presumption of innocence in allowing disciplinary proceedings following a criminal stay

R (Ben-Abdelaziz & Another) v London Borough of Haringey Council & Another
2001 EWCA Civ 803 TLR 19/6/2001 (2001) 1 WLR 1485

22 May 2001

Court of Appeal

Arden LJ ,  Lord Phillips MR ,  Pill LJ

Appeal against preliminary hearing’s dismissal of claim for damages

Asylum,  Immigration

Article 2,  Article 3,  Article 8,  Article 9

Whether applicants entitled to rely on HRA for claim for damages against local authority’s pre-HRA decision

(i) Crown’s involvement in judicial review nominal; judicial review proceedings not “brought by or at the instigation of” public authority; (ii) judicial review proceedings are brought under s7(1)(a) HRA, therefore HRA not applicable by virtue of s22(4) HRA

R (DPP) v Acton Youth Court
2001 EWHC Admin 402 TLR 21/6/2001 (2001) 1 WLR 1828

22 May 2001

High Court (QBD (DC))

Bell J ,  Lord Woolf CJ

Judicial review (substantive hearing)

Crime - procedure

Article 6

Whether Judge at Magistrates’ Court who heard PII application should disqualify himself from hearing subsequent trial; Rowe and Davies v UK (2000) 13 EHRR 1

i) ECtHR has approved PII application procedure in Crown court; ii) best way to achieve justice is that the same judge should hear PII application and conduct subsequent trial, so that this approach is also appropriate for magistrates’ courts

R (Jarrett) v Legal Services Commission & Others
LTL 23/7/2001 ILR 13/7/2001

22 May 2001

High Court (Queen's Bench Division)

Burton J

Judicial review (substantive hearing)

Access to justice,  Other

Art 6(1)

Access to Justice Act 2000, Sch. 2, s6(8)

Directions and Guidance on Community Legal Service Funding Priorities, April 2000

Right to civil legal aid extended to exceptional circumstances where withholding legal aid would make assertion of claim practically impossible or would lead to obvious unfairness in proceedings: X v UK (1984) 6 EHRR 136; LCD April 2000 Guidance misleading in omission to indicate this and ought to be amended.

(1) W and B (Children) (2) W (Children)
TLR 07.06.01 (2001) LGR 561

23 May 2001

Court of Appeal

Hale P ,  Sedley LJ ,  Thorpe LJ

Appeals from full care orders

Family

Article 6,  Article 8

Children Act 1989

(i) CA read into CA 1989 court’s power to require local authority to report on care plan’s progress if Convention rights are or would be breached (ii) there could be a breach of Art 8 by interference with family life or by failure to take “adequate steps” to protect child or to provide child deprived of a life with “family of birth” with another family

R (Daly) v Home Secretary
TLR 25/5/2001 (2001) 2 WLR 1622 (2001) 3 All ER 433 (2001) UKHRR 887 (2001) HRLR 49 (2001) 1 WLR 2099

23 May 2001

House of Lords

Lord Bingham ,  Lord Cooke ,  Lord Hutton ,  Lord Scott ,  Lord Steyn

Judicial review (appeal)

Confidence,  Legal professional privilege,  Prisoners

Article 8

Prison Security Manual, paras. 17.69-17.74 (cell search policy providing prisoners always to be absent during examination by prison officers of privileged legal documents held by prisoners in their cells)

i) Policy unlawful and void as imposing unjustifiable restriction on common law rights of legal privilege, access to legal advice and courts (ECHR would yield same result); ii) under HRA 1998, where proportionality of interference with ECHR rights in issue, reviewing court required to assess for itself balance struck by decision-maker and weight accorded to factors in decision-making process - not merely whether decision taken within range of rational or reasonable decisions; therefore: iii) in such circumstances, Wednesbury review and “heightened scrutiny” tests not appropriate to protection of human rights.

Malekshad v Howard de Walden Estates Ltd
TLR 9/7/2001 (2001) 3 WLR 824

23 May 2001

Court of Appeal

Robert Walker LJ ,  Lightman LJ ,  Sedley LJ

Appeal from County Court (preliminary issue)

Land

Article 14,  Article 8

Leasehold Reform Act 1967 ss1(1) & 2 (tenant's right to acquire freehold)

Distinction in s2(2) LRA 1967 between eligible and ineligible resident lessees not unjustifiably discriminatory under Arts 8 / 14

R v Kansal
TLR 11/6/2001 (2001) 3 WLR 751 (2001) 2 CAR 601 (2001) 2 CAR 30

24 May 2001

Court of Appeal

Rose LJ ,  McCombe J ,  Rougier J

appeal against conviction (CCRC's reference)

Crime - evidence

Art 6(1)

s433 Insolvency Act 1986 - whether in view of established practice not to re-open convictions as a result of change in the law, it is appropriate for CA to consider safety of conviction on ground that s433 Insolvency Act 1986 has been amended as a result of Saunders v UK [1997] 23 EHRR 313

(i) As a result HRA, pre-established approach not to reopen conviction because of changes in the law has been undermined; (ii) as a result of judgement in Saunders, English law had been amended rendering previously admissible statements inadmissible; (iii) therefore the appellant’s conviction was unsafe

Ekinci v Hackney London Borough Council
ILR 7/6/2001 TLR 24/7/2001 (2002) HRL 2

24 May 2001

Court of Appeal

Pill LJ ,  Arden LJ ,  Dyson LJ

Appeal from County Court

Housing

Article 8

S189 Housing Act 1996

i) Spouse under 18 years not “dependent child” with priority need for housing under s189(1)(b); ii) although Art 8 engaged, Art 8(1) did not require priority of applicants with child spouses over those with adult spouses or other categories of applicant and scheme prioritising housing needs of homeless persons justified under Art 8(2)

Branson v Bower

24 May 2001

Court of Appeal

Latham LJ ,  Sir Philip Otton

Interlocutory Appeal against High Court Order

Defamation

Article 10

defamation – whether statements comment or assertion of fact

Although, on the facts, the traditional common law test – according to which the article in question expressed opinions - could be applied, in some cases it might be necessary to consider with some care the extent to which the boundary between fact and comment had been affected by HRA 1998.

McLean v (1) Procurator Fiscal, Fort William and (2) Advocate General
(2001) UKHRR 793 (2001) HRLR 51 (2001) 1 WLR 2425

24 May 2001

Privy Council

Lord Clyde ,  Lord Hobhouse ,  Lord Hope ,  Lord Millett ,  Lord Nicholls

Appeal

Crime - equality of arms,  Crime - fair hearing

Art 6(1),  Art 6(3)

Criminal Legal Aid (Fixed Payments) (Scotland) Regulations 1999 (SI 1999/491)

The act of the Lord Advocate in continuing to prosecute the appellants was not incompatible with their right to a fair trial; accordingly it was not necessary to determine whether failure the Scottish Executive's failure to amend the Regulations was in breach of the Convention

R (Thangarasa) v Secretary of State for the Home Department
2001 EWHC Admin 420

05 June 2001

High Court (Administrative)

Collins J

Judicial review (substantive hearing)

Asylum

Article 3,  Article 8

S 11 Immigration and Asylum Act 1999; S 53(6) of the German Aliens Act; Dublin Convention

It was not open to argue that removal to Germany breaches Art 3 on alleged basis that i) German law does not apply Art. 3 where non-state agents present the risk of ill treatment in country of origin; ii) this lacuna is not met by s 53(6) (prevention of deportation only where considerable danger to body, life or liberty) because the threshold applied is too high and discretionary: there was no ‘protection gap’ in German law and the test laid down did in practice preclude removal breaching Art. 3: TI v UK [2000] INLR 211

R (Akhbari) v Secretary of State for the Home Department
2001 EWHC Admin 407

07 June 2001

High Court (Administrative)

Harrison J

Judicial review (substantive hearing)

Asylum

Article 3,  Article 8

Asylum and Immigration Act 1996

1) SSHD correctly considered that Art 8 rights of child applicant for asylum born in UK supported his decision to remove her parents to Italy under Dublin Convention 2) no evidence of risk of breach of Art. 3 resulting from her parents’ mental state

R v Wright & McGregor
2001 EWCA Crim 1394

14 June 2001

Court of Appeal

Goldring J ,  Henry LJ ,  Hooper J

Appeals against conviction and sentence

Crime - evidence

Article 6,  Article 8

s78 PACE

Khan v UK (ECtHR 12.05.00, No 35394/97)

(i) Though strong similarity to Khan, in this case breach of Art 8 did not compromise fairness of trial because trial judge properly applied s78 PACE test, including having regard to Art 8 breach (ii) no public policy rule that intercept evidence should not be used at criminal trial (R v P and Others, HL 11.12.00

WB v H Bauer Publishing Ltd
(2002) EMLR 8

14 June 2001

High Court (QBD)

Eady J

Application to strike out claim pursuant to CPR 3.4

Crime,  Freedom of expression

Article 10,  Article 3,  Article 6,  Article 8

Facts out of A-G’s Reference 3 of 1999 (HL, 14.12.00). Whether claimant acquitted of rape and assault entitled to damages arising out of defendant’s publication of interview with victim, given that HL had in the course of A-G’s reference prohibited claimant’s identification

It would infringe freedom of expression to admit that a defendant should not be subject of media enquiry upon acquittal, because such departure from open justice (Arts 6 and 10) is not “necessary in a democratic society”; there were alternative remedies in libel if media cannot prove allegations

Clibbery v Allan
TLR 2/7/01 (2001) 2 FLR 819

14 June 2001

High Court (Family Division)

Munby J

Application to continue injunction

Family

Article 10,  Article 6,  Article 8

Part IV, Family Law Act 1996;

R3.9(1) Family Proceedings Rules 1991

Proportionality does not allow one party to prevent disclosure of proceedings held in chambers in Family Division in perpetuity, where this exceeds necessary protection of Art. 8/6 rights, and constitutes unnecessary interference with the other party’s rights under Arts. 6 and 10

Re a Debtor (No. 5708 of 2000)

14 June 2001

High Court (Chancery Division)

Howarth J

Appeal against bankruptcy order

Civil procedure

Article 6

Insolvency Act 1986

Denial of fair trial under Art 6(1) where registrar in bankruptcy promised to adjourn proceedings following judgment to enable debtor to get affairs in order and then, without notice, decided to proceed

R (Heather & Others) v The Leonard Cheshire Foundation & HM Attorney-General
(2001) EMLR 957 TLR 8/4/2002

15 June 2001

High Court (Queen's Bench Division)

Stanley Burnton J

Judicial review (substantive hearing)

Charities,  Health

Article 14,  Article 8

Ss 6(1) & 6(3)(b) HRA 1998

Charity’s nursing / residential care home registered under Registered Homes Act 1984 and providing placements by agreement with funding statutory authorities pursuant to National Assistance Act 1948/ NHS Act 1977 not relevantly exercising “public function” under HRA 1998 s 6(3)(a); neither, therefore, “public authority” subject to judicial review in respect of relevant functions (lacks required degree of assimilation with functions of responsible public authorities: Donoghue v Poplar Housing Association ([2001] 3 WLR 183)

Ghosh v General Medical Council
2001 UKPC 29

18 June 2001

Privy Council

Lord Bingham ,  Lord Cooke ,  Lord Millett

Appeal from GMC

Professional negligence

Art 6(1)

s 40 Medical Act 1983

The scope of appellate jurisdiction in appeals against disciplinary hearings.

Given Privy Council status as court with full appellate jurisdiction to rehear GMC decisions, unnecessary to decide whether the GMC was in itself independent and impartial for purposes of Art. 6 (1)

Sheffield County Council v Hopkins
2001 EWCA Civ 1023 TLR 23/7/01

19 June 2001

Court of Appeal

Woolf LCJ ,  Arden LJ ,  Tuckey LJ

Appeal (by council)

Housing

Article 8

Part IV Housing Act 1985

Guidance to courts exercising discretion to suspend a warrant for possession includes, inter alia, need to further policy of Housing Act 1985, reinforced by Art. 8 of the ECHR and HRA, that eviction should only be ordered: i) after serious breach of tenant’s obligations established; ii) if reasonable; iii) where proved that tenant has breached condition of suspension order

R (Wright & Bennett) v Home Office
(2001) UKHRR 1399 (2002) HRLR 1 (2001) 62 BMLR

20 June 2001

High Court (Queen's Bench Division)

Jackson J

Judicial review (substantive hearing)

Inquests

Article 2,  Article 3,  Article 8

Arts 2 & 3 ECHR (procedural obligations); Art 8 ECHR

Inquest and civil proceedings failed to satisfy requirement for effective official investigation of custody death under Arts 2/3, resulting in continuing breach entitling family of deceased to remedy under ss6, 7, 8 HRA 1998 in form of order requiring independent investigation into circumstances of death; no violation of Art 8 could arise prior to 2 October 2000