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.

Samaroo v Secretary of State for the Home Department; Sezek v Secretary of State for the Home Department
TLR 18/9/2001 (2001 UKHRR 1150

17 July 2001

Court of Appeal

Butler-Sloss P ,  Dyson LJ ,  Thorpe LJ

Judicial review (appeal)

Immigration,  Judicial review

Article 8

Immigration Act 1971 ss5(1), 3(5)(b)

1) Proportionality as test of whether any less intrusive measure can achieve legitimate aim is restricted to level of general policy; 2) once this test satisfied, at second stage of proportionality relating to interference with particular applicant’s Art 8 rights, test is whether interference is excessive given public interest pursued. Thus SSHD entitled to view interference with applicant’s Art 8 rights as justified in pursuit of general legitimate aim of deterring drugs trafficking, in relation to which option of deportation in the public clearly necessary in sense of 1) above

St Brice & Another v Southwark London Borough Council
TLR 6/8/2001 ILR 12/1/2001

17 July 2001

Court of Appeal

Kennedy LJ ,  Chadwick LJ ,  Rix LJ

Appeal (County Court; application to set aside warrant for possession)

Housing

Article 14,  Article 6,  Article 8

Housing Act 1985

No breach of Arts 6, 8, 14 in issue of warrant of possession by court administrative staff without notice to tenant (because court required to make order for possession at hearing of which tenant has notice, and no separate determination of civil rights under Art 6 in enforcement of earlier decision); no discrimination contrary to Art 14 between tenants facing possession proceedings in High Court / County Court

Bellinger v Bellinger
2001 EWCA Civ 1140 (2002) 2 WLR 411

17 July 2001

Court of Appeal

Thorpe LJ ,  Butler-Sloss, P ,  Robert Walker LJ

Appeal

Family

Article 12,  Article 8

S 11(c) Matrimonial Causes Act 1973

1) Marriage of a male-born transsexual woman to a man was invalid, as gender assigned at birth was unchallengeable (applying test for determination of sex for purpose of marriage in Corbett v Corbett (1970) 2 All ER 33) 2) however, in light of Rees v UK, Cossey v UK, Sheffield & Horsham v UK, although it was for Parliament, not the courts, to legislate in this area, change to this rule was required sooner rather than later

Preiss v Professional Conduct Committee of the General Dental Council
2001 UKPC 36 (2001) Lloyd's Rep Med

17 July 2001

Privy Council

Lord Bingham ,  Lord Cooke ,  Lord Millett

Appeal from Professional Conduct Committee of General Dental Council

Professions

Art 6(1)

Dentists Act 1984

As to the scope of review in appeals from disciplinary hearings

Following Ghosh v GMC (PC 18.06.01 above) the fact that the Privy Council has full appellant jurisdiction cures any lack of independence in the Committee

Madan v General Medical Council
2001 EWHC Admin 577 (2001) Lloyd's Rep Med

17 July 2001

High Court (Queen's Bench Division)

Newman J ,  Brooke LJ

Appeal against decision of Interim Orders Committee of GMC

Disciplinary proceedings,  Professions

Art 6(1)

s 41A Medical Act 1983

Interference with civil right to practice medicine by suspension pending disciplinary hearing constitutes an interference that must be proportionate to need to protect public

Thomas v (1) News Group Newspapers Ltd & (2) Hughes
TLR 25/7/2001 (2002) EMLR 4

18 July 2001

Court of Appeal

Lord Phillips MR ,  Mustill LJ ,  Parker LJ

Appeal (against County Court refusal to strike out )

Freedom of expression,  Public order

Article 10

Protection from Harassment Act 1997

No breach of Art 10, or its requirement of legal certainty in relation to any interference with Art 10(1) in holding that publication of newspaper articles reasonably foreseeably causing distress through racist abuse within HA 1997’s definition of harassment

R (Elliot) v Secretary of State for the Home Department
2001 EWHC Admin 559

18 July 2001

High Court (Administrative)

Rose LJ ,  Silber J

Judicial review (substantive hearing)

Extradition

Art 6(2)

s 12 (1) Extradition Act 1989 Prevention of Bribery Ordinance (Hong Kong SAR)

relating to reverse onus of proof provisions

SSHD’s decision to order return on bribery charges (in which accused must prove defences of lawful authority/reasonable excuse) not violation of Art 6 (2): 1) principle that issues affecting fairness of trial are best decided at trial also applies to extradition, unless there is real risk of denial of fair trial in requesting state; 2) in considering fairness SSHD had proper regard to: i) rebuttable nature of presumption, ii) fact E not deprived of all means of defending himself

R (Carroll, Al-Hasan and Greenfield) v Secretary of State for the Home Department
2001 EWCA Civ 1224 TLR 16/8/0, [2002] 1 WLR 545, (2001) HRLR 58

19 July 2001

Court of Appeal

Woolf LCJ ,  Arden LJ ,  Tuckey LJ

Judicial review (appeal)

Prisoners

Art 6(1),  Art 6(3),  Article 5,  Article 6

s 42 Criminal Justice Act 1991 s 47 Prison Act 1952

Rule 39 Prsion Rules 1964 Rule 47 Prison Rules 1964 Rule 51(9) Prison Rules 1999

1) Prison disciplinary proceedings not criminal under Art. 6 (rights to independent /impartial tribunal and free legal assistance did not apply); 2) additional penalty days merely postponed release on licence and did not add to prisoners’ original sentence, which continued to justify detention under Art. 5(1); 3) although no requirement in law to give reasons for squat search, procedures to prevent abuse should be put in place

General Dental Council v Price
2001 Administrative 653

19 July 2001

High Court (Administrative)

Brooke LJ ,  Newman J

Appeal by way of case stated

Crime - fair hearing

Article 6

s 37 Dentists Act 1984

Code of Conduct of the Bar and Law Society’s Code of Advocacy

Question ‘by virtue of the fact that prosecuting advocate had taken a statement from the witness the court was entitled to rule that the prosecution be stayed as an abuse of process’ answered in negative. There is no binding rule of practice that a witness may not be proofed in such a way as occurred here. It was inappropriate to stay the proceedings – there was no prosecutorial misconduct and it was possible for there to have been a fair trial, contrary to the view of the justices at first instance

R (Gunn–Russo) v (1) Nugent Care Society (2) Secretary of State for Social Security
2001 EWHC Admin 566 TLR 2/7/01

20 July 2001

High Court (Administrative)

Scott Baker J

Judicial review (substantive hearing)

Family - adoption

Article 14,  Article 6,  Article 8

S.58A Adoption Act 1976 Local Authorities Social Services Act 1970

Reg. 15(2) Adoption Agencies Regulations 1983

1) No automatic right of access to information on adoptee’s past in voluntary adoption agency records under Art. 8 (Gaskin v UK distinguished) 2) no positive obligation on SS Health under Art.6 or Art 8 / 14 to create independent appeal structure from voluntary agency’s refusal to grant access, as sufficient remedy for any breach in judicial review

R (Waite) v Hammersmith and Fulham Borough Council
2001 EWHC Admin 672

20 July 2001

High Court (Administrative)

Maurice Kay J

Judicial review (substantive hearing)

Social/welfare benefits

Article 14,  Article 8,  Protocol 1 Article 1

s 32(2) Crime (Sentences) Act 1997 s 130 (1) Social Security Contributions and Benefits Act 1992

Reg. 5(8B) Housing Benefit (General) Regulations 1987

Policy excluding from housing benefit eligibility recalled Majesty’s Pleasure prisoners awaiting parole determination did not breach Art. 8, or Art. 1 Prot. 1/ Art 14: 1) no analogy between remandees / those awaiting sentence and recalled HMP prisoners; 2) any differential treatment was justified and proportionate, within discretionary area of ministerial judgment

R (P & Q) v Secretary of State for the Home Department
TLR 01.08.01 (2001) 2 FLR 383 (2001) UKHRR 1035

20 July 2001

Court of Appeal

Lord Phillips MR ,  Brooke LJ ,  Hale LJ

Judicial review (appeal)

Prisoners

Article 8

Prison Service Order No. 4801 (Mother and Baby Units policy)

Prison service entitled to have policy requiring removal of all babies from care of their motheres in MBUs at age 18 months, so long as i) not rigidly applied in individual cases so as to breach Art 8 rights of mother and baby; ii) applied in furtherance of child's welfare

R v Qureshi
(2002) I WLR 518 LTL 28/2/2002 (2002) 1 CAR 33

23 July 2001

Court of Appeal

Kennedy LJ ,  Leveson LJ ,  Wright LJ

Application for permission to appeal (conviction)

Crime - evidence

Article 6

Rule in R v Miah & Akhbar [1997] 2 Cr App R 12

Rule that court would never admit evidence from a jury of their deliberations or any of their discussion from the moment of empanelling, whether in or outside jury box, still good law under HRA 1998

Millar & Others v Procurator Fiscal, Elgin & Another
2001 UKPC D4 (2001) UKHRR 999 (2001) HRLR 59

24 July 2001

Privy Council

Lord Bingham ,  Lord Clyde ,  Lord Hope ,  Lord Nicholls ,  Lord Scott

Appeals from High Court of Justiciary (devolution issue)

Crime - independent and impartial tribunal

Article 6

Scotland Act 1998

Whether Lord Advocate had power to continue to prosecute before temporary sheriffs in period between Scotland Act 1998 came into force and decision in Starrs v Ruxton 2000 JC 208

(i) By continuing to prosecute before tribunal that was not independent and impartial, Lord Advocate infringing right of the accused, which he has no power to do under s57(2) Scotland Act 1998 (ii) accused’s waiver of right to fair trial before independent and impartial tribunal has to be unequivocal and not contrary to public interest (iii) defendants had not tacitly waived right simply by their failure to object to temporary sheriffs at hearing

R (Rottman) v (1) Commissioner of Police for the Metropolis (2) Secretary of State for the Home Department
TLR 26/10/2001 LTL 2/8/2001

24 July 2001

High Court (Queens Bench Division (Divisional Court))

Brooke LJ ,  Harrison J

Judicial review (substantive hearing)

Police

Article 8

Police & Criminal Evidence Act 1984, Part II

In the extradition context, no police power under statute or common law either to enter or search a suspect’s dwelling house without a court search warrant; order for delivery up of possessions seized, and declaration that search unlawful and in breach of Art 8 granted

Jemchi v The Visitor, Brunel University
2001 EWCA Civ 1208

25 July 2001

Court of Appeal

Sedley LJ

Permission to appeal from Visitor’s decision

Education

Art 6(1)

Common law right to an oral hearing

Permission granted, but in relation to common law entitlement to an oral hearing only. Retrospectivity - under s.22(4) HRA 1998 and following Lambert [2000] UKHL 37 and Wallbank [2001] All ER(D) 212, HRA inapplicable to appeal from pre-October 2000 proceedings brought by applicant

Director-General of Fair Trading v Proprietary Association of Great Britain & Another
TLR 7/8/2001 (2002) 1 WLR 269 (2002) 1 All ER 853

26 July 2001

Court of Appeal

Brooke LJ ,  Lord Phillips MR ,  Robert Walker LJ

Application for costs

Civil procedure

Article 6

Art 6(1); costs

No rights to costs of first hearing to achieve restitutio in integrum where breach of Art. 6 averted by recusal and then re-hearing by independent and impartial tribunal

R (Nicolaides) v General Medical Council
2001 EWHC Admin 625 (2001) Lloyd's Rep Med 525

27 July 2001

High Court (Administrative)

Tucker J

Judicial review (substantive hearing)

Professions

Art 6(1)

Medical Act 1983

r 4 General Medical Council (Constitution of Fitness to Practise Committees) Rules Order of Council 1996

rules of natural justice

1) No breach of test for bias as in In re Medicaments ([2001] 1 WLR 700) where disciplinary committee instigated charge of giving false answer at previous committee hearing. 2) Art 6 (1) not applicable in any event: no determination of civil rights/obligations where penalty is reprimand, as opposed to suspension or disbarring

R v Brown and others
2001 EWCA Crim 1771

27 July 2001

Court of Appeal

Grigson J ,  Mantell LJ ,  Rougier J

Appeal by way of case stated

Crime - procedure

Art 6(3)

N/A

The right to defend oneself is acknowledged in art 6 and the exercise of that right might bring advantages and disadvantages. A defendant who choses to exercise the right cannot pray in aid the ordinary and anticipated disadvantages of his choice in support of the argument there was inequality of arms. The trial judge had correctly weighted the conflicting interests in the case, and no error occurred

Mousaka Inc. v Golden Seagull Maritime Inc & another
LTL 30/7/2001 TLR 3/10/2001 (2001) 2 All ER (Comm) 794 (2002) 1 WLR 395 (2002) 1 All ER 726

30 July 2001

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

David Steel J

Application for leave to appeal (arbitration award)

Civil procedure

Article 6

s 69 Arbitration Act 1996

Post-HRA 1998, Art 6 does not displace the primary rationale in The Antaios ((1985) AC 1979) for not giving reasons for refusing leave to appeal against an arbitration award i.e. that issue is threshold one of suitability for appeal, from which there is no effective right of appeal

R v Thoron
2001 EWCA Crim 1797

30 July 2001

Court of Appeal

Henry LJ ,  Butterfield J ,  Rivlin J

Appeal

Crime - independent and impartial tribunal

Art 6(1)

R v Gough and the question of impartiality.

The judge had been correct in refusing to discharge the jurors, both at common law and in accordance with article 6. There was no evidence of a real danger of bias. Jury impartiality should be presumes unless there is proof to the contrary. In any event the trial occurred pre-2 October 2000 and the HRA does not have retrospective effect.

Varsani & others v Jesani & others
LTL 13/9/2001

31 July 2001

High Court (Chancery Division)

Patten J

Determination of scheme under s13 Charities Act 1993

Charities

Article 14,  Article 9

s13 Charities Act 1993

Decision discussing role of Convention rights in court’s conduct of s13 CA 1993 discretionary exercise when dividing religious charity’s assets

R (Ford) v Press Complaints Commission
LTL 31/7/2001 (2002) EMLR 5

31 July 2001

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

Silber J

Judicial review (substantive hearing)

Privacy

Article 8

Judicial review

PCC comprises specially selected expert members; therefore, on application for judicial review, court should defer to PCC's decision, interfering only where clearly, rather than merely, desirable to do so

Pearce v Governing Body of Mayfield School
2001 EWCA Civ 1347 LTL 31/7/2001 (2001) IRLR 669 TLR 9/10/2001 (2002) ICR 198

31 July 2001

Court of Appeal

Hale LJ ,  Henry LJ ,  Judge LJ

Appeal (EAT)

Discrimination,  Privacy

Article 14,  Article 8

Sex Discrimination Act 1975

1) Court’s duty under s 3(1) HRA 1998 does not arise in relation to events occurring pre-2 October 2000 (R v Lambert (2001) 3 WLR 206); 2) obiter (Hale LJ) i) treatment constituting discrimination on grounds of sexual orientation incompatible with Arts 8 & 14; ii) pre-Oct 2000, such treatment could be encompassed by SDA 1975/s 3 HRA 1998 if HL were to overrule Smith v Gardner Merchant (1998) IRLR 510

Berezovsky and Glouchkov v Forbes and Michaels
2001 EWCA Civ 1251

31 July 2001

Court of Appeal

Sedley LJ ,  Aldous LJ ,  Arden LJ

Appeal (interlocutory issue)

Defamation

Article 10,  Article 6

S 5 Defamation Act 1952 s.12 HRA 1998

1) No disproportionate interference with free expression to require defendant newspaper to justify substance of alleged defamation 2) striking out parts of defence would not breach defence right to fair trial or the protection of Art. 10 and s.12 HRA