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.

Rushbridger and Toynbee v Attorney-General and the Director of Public Prosecutions
2001 EWHC Admin 529

22 June 2001

High Court (Administrative)

Rose LJ ,  Silber J

Judicial review (application for permission)

Media

Article 10,  Other Article

Article 34

s 3 Treason Felony Act 1848

Civil Procedure Rules

1) Applicants seeking undertaking from A-G not to prosecute for publishing articles advocating non-violent republicanism not ‘victims’ under HRA or Art. 34 ECHR: i) no decision amenable to judicial review; ii) no unlawful conduct under s7 HRA to ground application for declaration of incompatibility with Art 10 of Treason Felony Act 1848; iii) declarations of criminality of specific conduct could be made only exceptionally and not before its occurrence: ex p. Kebilene (1999) 3 WLR 972

R (Buckland and Boswell) v Secretary of State for the Environment, Transport and the Regions
2001 EWHC Admin 524 [2001] All ER (D) 247 (Jun)

22 June 2001

High Court (Administrative)

Sullivan J

Judicial Review (substantive hearing)

Planning

Article 8

s 288 Town & Country Planning Act 1990

It is for planning inspectors to carry out balancing exercise required by Art 8 as endorsed in Chapman v UK ([2001] 4 EHRLR 453) and not for court to conduct merits review

TH v SH, sub nom Re CMH & LH (Children) (Contact Order)
TLR 10/8/01 (2002) 1 FLR 22

22 June 2001

High Court (Family Division)

Wall J

Judicial Review (Substantive Hearing)

Family

Article 8

s 1(3) Children Act 1989

Every order under s 8 Children Act 1989 represents some measure of interference by a public authority with the right to respect for family life. However, proper application of the welfare checklist in s 1(3) of the Act was equivalent to the balancing exercise required in the application of article 8

Cachia & Others v Francis Faluyi
2001 EWCA Civ 998 TLR 11/7/2001 (2001) 1 WLR 1966 (2002) 1 All ER 192

27 June 2001

Court of Appeal

Brooke LJ ,  Henry LJ ,  Lord Phillips MR

Appeal against claim’s strike-out

Access to justice

Article 6

s2(3) Fatal Accidents Act 1976

Whether, if writ for compensation of deceased’s dependants was issued but had not been served, s2(3) Fatal Accidents Act 1976 automatically barred from issuing a new claim

i) Restriction in s2(3) FAA 1976 did not have legitimate aim for Convention purposes, it was a procedural quirk; ii) pursuant to s3(1) HRA it is possible to interpret the word “action” in s2(3) FAA 1976 as meaning “served process”; iii) HRA now enables judges to do justice in a way not previously open to them

Rampal v Rampal
2001 EWCA Civ 989 TLR 24/7/01 (2001) 3 WLR 795

27 June 2001

Court of Appeal

Thorpe LJ ,  Butler-Sloss LJ ,  Walker LJ

Appeal against ancillary relief order

Family

Art 6(1)

Family Law Act 1996

Rule in Whiston v Whiston

Art. 6 (1) does not prevent summary dismissal of claims, providing summary judgment preceded by Art. 6-compliant hearing

Beckham and Beckham v MGN Ltd.

28 June 2001

High Court (Queen's Bench Division)

Eady J

Application to continue interim injunction

Media

Article 8

law of confidence

Cross-undertaking sought by MGN (in the course of proceedings to prevent the publication of photographs by MGN) to prevent B’s sale of photographs to another publisher not allowed as unjustifiable restriction on B’s right to privacy under Art 8 and freedom of contract

St Merryn Meat Ltd & Others v Hawkins & Others
LTL 2/7/2001

29 June 2001

High Court

Geoffrey Vos QC

Application to discharge interim injunctions

Civil procedure

Article 8

Civil procedure

Art 8(1) rights violated by interception of home telephone calls by private actor non-disclosure of method of interception violating Art 8 rights was material, justifying discharge of without notice interim freezing orders

Briody v St Helens & Knowsley Area Health Authority
LTL 29/6/2001 ILR 3/7/2001 (2001) 2 FLR 1048 (2002) 2 WLR 394

29 June 2001

Court of Appeal

Hale LJ ,  Henry LJ ,  Judge LJ

Appeal from High Court

Tort - negligence (damages)

Article 12

Damages (negligence)

Art 12 entitles everyone to right to try to have own children by natural means, not to provision with a child; no right to damages for surrogacy using own egg where probability of success vanishingly small, or using donor egg at all (obiter: in principle damages for own egg surrogacy and donor egg-IVF available)

Attorney General’s Reference (No. 2 of 2001) sub nom R v J
2001 EWCA Crim 1568 [2001] 1 WLR 1869

02 July 2001

Court of Appeal

Woolf LCJ ,  Leveson J ,  Wright J

Attorney-General’s reference under s 36 Criminal Justice Act 1972.

Crime - procedure

Art 6(1)

Delay in bringing criminal proceedings

In assessing delay as alleged breach of Art.6 (1): i) time runs from formal charge; ii) stay of proceedings is not appropriate remedy in the absence of prejudice; iii) the effect of delay on trial’s fairness must be considered from the point of view of both the defence and the prosecution

St John v (1) United States of America (2) Governor of HMP Brixton
2001 EWHC Admin 543 TLR 10/08/01 (2001) 2 WLR 221

02 July 2001

High Court (Administrative)

Brooke LJ ,  Harrison L

Habeas Corpus

Extradition

Other Article

Article 1 Protocol 6

Para. 20 (1) Schedule 1 Extradition Act 1989

Order in Council – The United States of America (Extradition) Order 1976

While Secretary of State’s decision as to extradition was pending, and he had not yet sought or obtained assurance from requesting state that death penalty would not be carried out, it was premature to argue that Art 1 Prot 6 required reinterpretation of ‘extradition crime’, so as to exclude a potential death penalty offence

(1) Han & Yau (2) Martins & Martins (3) Morris v Customs and Excise Commissioners
2001 EWCA Civ 1040 TLR 3/8/2001 (2001) 4 All ER 687 (2001) HRLR 54 (2001) 1 WLR 2253 (2001) UKHRR 1341

03 July 2001

Court of Appeal

Potter LJ ,  Sir Martin Nourse LJ ,  Mance LJ

Appeal by Custom and Excise Commissioners on preliminary issue

Taxation

Article 6

Whether penalties imposed by s60(1) Value Added Tax Act 1994 and s8(1) of the Finance Act 1994 were criminal rather than civil under Art 6

Penalties were criminal (Sir Martin Nourse dissenting)

R (C) v MHRT London South & South West Region
TLR 11/7/2001 (2002) 1 WLR 176

03 July 2001

Court of Appeal

Lord Phillips MR ,  Mustill LJ ,  Parker LJ

Judicial review (appeal)

Mental health

Article 5

s3 MHA 1983

Mental Health Review Tribunal policy & practice

MHRT practice of listing all hearings of patients detained under s3 MHA 1983 for a uniform specified period after date of request breached Art 5(4) requirement of speedy determination of lawfulness of detention; ECHR requires hearing with period reasonably necessary to adjudicate application, depending on facts of each case

R (Hussain) v Derby Magistrates’ Court
2001 EWHC Admin 507 (2001) 1 WLR 2454

03 July 2001

High Court (Administrative)

Brooke LJ ,  Harrison J

Judicial review (substantive hearing)

Crime - procedure

Article 5,  Article 6

Bail Act 1976 section 7 (4), (5), (6)

1) Art. 6 inapplicable to breach of bail proceedings under s 7(6) Bail Act 1976: R (on application of DPP) v Havering Magistrates’ Court [2001]1 WLR 805; 2) Art. 5(3) duty to bring person promptly before court no obstacle to bail breach hearing being sent before a differently constituted bench, as s7(5) designed to ensure prompt summary hearings

R v Lambert
2001 UKHL 37 TLR 6/7/2001 (2001) 3 WLR 206 (2001) 3 All ER 577 (2001) Crim LR 806

05 July 2001

House of Lords

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

Appeal against conviction

Crime - procedure

Article 6

i) Whether on ordinary meaning s28 Misuse of Drugs Act 1971 incompatible with Art 6(2), and if so, whether it can be read compatibly; ii) whether defendant can, on appeal after HRA in force, rely on breach Convention by investigating or prosecuting authority at pre-HRA trial

i) Legal burden of proof on defendant pursuant to s28’s ordinary reading not compatible with Art 6(2) (L Hutton dissenting); ii) by virtue of s3HRA, s28 MDA can be read as imposing evidential burden of proof; iii) relevant HRA provisions not in force at trial: cannot on appeal rely on Convention breach committed by trial court if trial took place pre-HRA (L Steyn dissenting); iv) notwithstanding this, on facts HL considered that appellant’s conviction was not unsafe

R (McDonagh) v Salisbury District Council
2001 EWHC Admin 567

05 July 2001

High Court (Administrative)

Jackson J

Judicial review (substantive hearing)

Housing,  Independent and impartial tribunal

Art 6(1)

ss 128 & 129 Housing Act 1996

Possession proceedings re introductory tenancy comply with Art 6(1), following Johns & McClellan v Bracknell Forest DC (High Ct 21/12/00) see above

R (Kathro) v Rhondda Cynon Taff Borough Council
2001 EWHC Admin 527 (2001) 29 EG 120 (CS)

06 July 2001

High Court (Administrative)

Richards J

Judicial review (substantive hearing)

Planning - independent and impartial tribunal

Art 6(1),  Article 8,  Protocol 1 Article 1

s 77 Town Country Planning Act 1990

r 3 Town & Country Planning (General) Regulations 1992

In allowing council to determine its own planning application reg. 3 would breach Art 6 right to independent/impartial tribunal of objectors to application, as council is blatantly not an independent/impartial tribunal. However application was premature because council had not yet made decision. Question of whether judicial review could cure lack of independence could only be answered after decision made

Marcic v Thames Water Utilities Ltd (No 2)
(2001) 4 All ER 326 (2001) HRLR 52 (2002) 2 WLR 1000

10 July 2001

High Court (QBD (Technology and Construction Court))

Richard Havery QC

Preliminary issue on measure of damages following Marcic (No1) (High Ct, 14.05.01)

Nuisance,  Tort - negligence

Article 8,  Protocol 1 Article 1

Water and Industry Act 1991

(i) Claimant to be awarded damages for just satisfaction, including damages for future wrongs (ii) damages would be assessed as the difference between the value of the property at a hypothetical post-2 Oct “date of completion” when the defendant would have carried out the works to end the nuisance, and the actual value of the property on “completion date”.

Money Markets International Stockbrokers Ltd v (1) London Stock Exchange Ltd (2) London Stock Exchange (Holdings) Ltd
TLR 25/9/2001 (2001) 4 All ER 223 (2001) 2 BCLC 347 (2002) 1 WLR 1150

10 July 2001

High Court (Chancery Division)

Neuberger J

Trial on liability

Insolvency

Article 14,  Protocol 1 Article 1

Common law of contract / bankruptcy

i) No breach of Art 1 Prot 1 because i) no deprivation, as “property” in question (single share in LSE Ltd) had in-built mechanism for deprivation (pursuant to articles of association) agreed to by claimant by contract; ii) any “deprivation” was therefore in accordance with the law

R (Pinar) v Secretary of State for the Home Department

10 July 2001

High Court (Queen's Bench Division)

Maurice Kay

Judicial Review (substantive hearing)

Immigration

Article 8

Judicial review of exercise of administrative discretion where ECHR rights engaged

Where the claimant did not have entry clearance, the grant of leave to enter was a matter of discretion. Any disruption to P’s family life caused by refusing leave to enter was justified with respect to the “need to maintain a fair and consistent immigration control” – where a claimant arrived without the required entry clearance, it would be unfair to allow her to jump the queue without demonstration of some exceptional circumstance: ex parte Mahmood.

Family Housing Association v (1) Donnellan (2) Cato

12 July 2001

High Court (Chancery Division)

Park J

Adverse possession proceedings (appeal against order allowing amendment of pleadings)

Land

Protocol 1 Article 1

s 15 (1) Limitation Act 1980

1) Second sentence of Art 1 Prot 1 inapplicable to private law of adverse possession as no ‘deprivation’ by the state: J.A. Pye (Oxford) Ltd v Graham (2001) 2 WLR 1293 followed. 2) Limitation period of 12 years was proportionate and compatible with Art 6 (1)

Gough & Smith v Chief Constable Of Derbyshire; Miller v Leeds Magistrates Court; Lilley v Director of Public Prosecutions
TLR 19.07.01

13 July 2001

High Court (Queen's Bench Division)

Laws LJ ,  Poole J

Judicial review (substantive hearing)

Crime - public order

Article 7,  Article 8,  Other Article

Protocol 4 Article 2

Football Spectators Act 1989; Football (Disorder) Act 2000

Football banning orders imposed under s14A & s14B FSA 1989 (as amended) lawful 1) under EC law, as proportionate restriction on freedom of movement; 2) under ECHR as a) not "penalties" for purposes Art 7; b) Art 8 not engaged; c) Art 2 Prot 4 not ratified by UK

Hamilton v Al Fayed & others
TLR 25/7/2001 LTL 13/7/2001

13 July 2001

High Court (Queen's Bench Division)

Morland J

Application for costs orders

Civil procedure

Article 10,  Article 6

s 51 Supreme Court Act 1981

CPR

1) No rule exempts pure funders of even potential liability from costs order under s51 SCA 1981, though such orders are only rarely just and reasonable; 2) on relevant applications under s51, court to have particular regard to importance of free expression & Art 6 rights of those whose rights / reputation under Art 10 engaged

R (M) v Commissioner of Police for the Metropolis; R (La Rose) v Commissioner of Police for the Metropolis
2001 EWHC Admin 553 TLR 17/8/01 (2002) Crim LR 215

13 July 2001

High Court (Administrative)

Laws LJ ,  Poole J

Judicial Review (Substantive Hearing)

Crime - procedure

Art 6(3),  Article 8

s 58 and Code C, Police and Criminal Evidence Act 1984

No breach of Art. 6(3)(b), Art 6(3)(c) or Art 8 in facilities at police station whereby police might overhear confidential legal conversation without demonstration by defendant of actual prejudice

R (Stoyles) v London Borough of Hackney and Special Education Needs Tribunal
2001 EWHC Admin 572

13 July 2001

High Court (Administrative)

Collins J

Appeal against decision of Special Needs Tribunal

Education

Protocol 1 Article 2

s 9 Education Act 1996

In view of the fact that the matter of educational preference was not raised before Tribunal it can not be criticised for failing to take it into account. The Tribunal can not assume parental preference on any grounds other than those specifically put forward, thus no violation of Article 2 of Prot 1 had occured

R v Kelly (Edward)
2001 EWCA Crim 1715 (2001) Crim LR 836

16 July 2001

Court of Appeal

Buxton LJ ,  Beaumont J ,  Holman J

Appeal (against sentence – referral by CCRC)

Crime - sentencing

Article 3,  Article 5

S.2 Crime (Sentences) Act 1997, now s109(2) Powers of Criminal Courts (Sentencing) Act 2000

Applying R v Offen (TLR 19.11.00) and quashing life sentence, held court not empowered to impose life sentence where, on facts, exceptional circumstance is that public does not require future protection from the offender