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 (Bewry) v Norwich City Council
2001 EWHC Admin 657 (2002) HRLR 2

31 July 2001

High Court (Administrative)

Moses J

Judicial review (substantive hearing)

Housing

Art 6(1)

s 63 Social Security Administration Act 1992 s 130 (1)(a) Social Security Contributions and Benefits Act 1992

r 81 (3) Housing Benefit (General) Regulations 1987

1) Fairness at common law includes right to an independent/impartial tribunal for adjudication of statutory right to benefit. 2) Obiter, where council Review Board includes councillors it is unlikely that JR could cure lack of independence as primary assessment of facts may be affected in way that cannot be adequately scrutinised or rectified by reviewing court

Pelling v Families Need Fathers Ltd
2001 EWCA Civ 1280

01 August 2001

Court of Appeal

Mummery LJ ,  Jonathan Parker LJ ,  Wilson J

Appeal

Company law

Article 8

S.356 (6) Companies Act 1985

Art. 8 not breached by a construction of Companies Act 1985 as conferring discretionary power on court as to whether to make order requiring defendant to provide a list of members

R v Adimora

09 August 2001

Court of Appeal

Latham LJ ,  Buckley LJ ,  Wright LJ

Renewed application for leave to appeal against conviction and sentence

Crime - procedure

Article 6

Art 6(2)

No right under Art 6.(2) to attend hearing of application for leave to appeal to present application: interests of justice and fairness can be met by written submissions: Mannell & Morris v UK 10 EHRR 205

Gupta v General Medical Council
2001 EWHC Admin 631 LTL 16/10/2001 TLR 16/10/2001

09 August 2001

High Court (QBD (DC))

Newman J ,  Brooke LJ

Application under s38(6) Medical Act 1983

Professions

Article 6

s 38 (6) Medical Act 1983

GMC Preliminary Proceedings Cttee. & Professional Conduct Cttee. Rules (SI 1998 No 2255)

Given its final character and serious financial consequences, GMC Committee required to give defendant i) notice ii) opportunity to make representations, where contemplating imposing suspension, pending erasure, from the register

R v Hamill
2001 EWCA Crim 1922 LTL 29/1/2001

15 August 2001

Court of Appeal

Rose LJ ,  Curtis J ,  Grigson J

Appeal (conviction)

Crime - procedure

Article 6

Test on appeal against conviction

HRA 1998 / ECHR had not altered the test, of Wednesbury unreasonableness, to be applied by Court of Appeal on appeal against conviction, on grounds of jury misdirection

R (Akpinar) v Secretary of State for the Home Department
2001 EWCA Civ 1363

17 August 2001

Court of Appeal

Sedley LJ

Renewed application for permission to appeal

Asylum

Article 3

s 65 Immigration & Asylum Act 1999

Where an asylum seeker had recourse to ECHR jurisdiction in Germany during course of original asylum application in 1998, she was continuously within that jurisdiction on that matter, and so not positioned to make any asylum / human rights claim in the UK

Jimenez-Ramirez v Secretary of State for the Home Department
2001 EWCA Civ 1365

21 August 2001

Court of Appeal

Sedley LJ ,  Aldous LJ ,  Tuckey LJ

Application for permission to appeal (IAT)

Asylum

Article 2,  Article 3

s65 Immigration & Asylum Act 1999

Given i) that s 65 IAA 1999 is inapplicable to pre-2 Oct 2000 asylum decisions; and ii) SSHD’s undertaking in Pardeepan v SSHD (5 October 2000, IAT) to consider ECHR / HRA objections to removal in pre-2 October 2000 decisions, appellant could not raise new case by asserting CA’s own obligations as s 6 HRA public authority

Macclesfield Borough Council v McMahon and another
2001 EWCA Civ 1366

23 August 2001

Court of Appeal

Sedley LJ

Appeal (against injunction)

Planning

Article 8,  Protocol 1 Article 1

s 187B Town and Country Planning Act 1990

No breach of Art. 8 or Art. 1 of Prot.1 in grant of an injunction to prevent breach of planning laws where proportionate response to prior history of non-compliance

R (Wahid) v London Borough of Tower Hamlets

23 August 2001

High Court (Queen's Bench Division)

Stanley Burnton J

Judicial review (substantive hearing)

Housing

Article 8

National Assistance Act 1948 s21; Housing Act 1996

Art 8 ECHR added nothing to W’s rights under English law. The right to respect for family life was not infringed by the respondent local authority's decision, which was to deal with his housing requirement under housing legislation.

R (Saadi & Others) v Secretary of State for the Home Department
TLR 22/10/2001 (2001) 4 All ER 961 (2002) 1 WLR 356

07 September 2001

High Court (QBD)

Collins J

Judicial review (substantive hearing)

Asylum

Article 5

Immigration Act 1971, Schedule 2, paras. 16(1) & (2)

Vires; necessity of detention in deprivation of liberty

Applicants' detention under para 16(1), Sched 2 Immigration Act 1971 ("administrative detention") at Oakington Detention Centre, was unlawful under ECHR/HRA: detention for the purpose of facilitating a speedy decision on applications, in the interests of the general administration of asylum claims (and even if necessary to achieving that end) was outside the scope of Art 5(1)(f) ECHR.

R (S) v City of Plymouth
2001 EWHC Admin 750

07 September 2001

High Court (Administrative)

Maurice Kay J

Judicial review (substantive hearing)

Mental health

Art 6(1),  Article 8

ss 7, 23, 24 & 29 Mental Health Act 1983

r 49.12 County Court Rules

1) Art 6 (1) not engaged by refusal of social services (SS) to disclose C’s records to C’s nearest relative (NR), who contemplating application to discharge guardianship order, but where no application was yet made. 2) If SS applied to discharge as NR (as SS would, had NR applied to discharge order) limited disclosure under CC Rules applicable. 3) Balance correctly struck between C’s Art 8 rights and Art 6 rights of NR

A v (1) B (a company) (2) C (a female)
TLR 02/11/01

10 September 2001

High Court (Queen's Bench)

Jack J

Application to set aside order restraining publication

Privacy

Article 10,  Article 8

Common law breach of confidence; Press Complaints Commission Code of Practice

1) Common law breach of confidence is to be interpreted compatibly with ECHR, including right to privacy. 2) Public interest, approximating public benefit, is important factor in deciding whether to restrain publication

R (Cowl and others) v Plymouth City Council
2001 EWHC Admin 734

14 September 2001

High Court (Administrative)

Scott Baker J

Judicial Review (Substantive Proceedings)

Community care

Article 8

s 47 National Health Service and Community Care Act 1990

Article 8 did not give a right to a home. Although it may be engaged, it is a right where a balancing exercise has to be carried out – underlying the decision to close the home are financial considerations which are matters for the council. The council could not act compatibly with the common law and its statutory obligations and yet be in breach of the convention.

Attorney-General v Ebert
LTL 5/10/2001

21 September 2001

High Court (QBD (Divisional Court))

Brooke LJ ,  Harrison J

Application for injunctive relief

Civil procedure - vexatious litigation

Article 6

Court’s inherent jurisdiction to regulate its process

Given i) every citizen's right of access to a court at common law and under Art 6 ECHR and ii)restrictions on that right implicit in English case law (Grepe v Loam; Ebert v Venvil) and ECtHR jurisprudence, it was court's duty in controlling its procedure to ensure nothing done disproportionately hindered or interfered with litigant's right of access.

R (Banks) v (1)Governor of HMP Wakefield & (2)Secretary of State for Home Department
2001 EWHC Admin 917

24 September 2001

High Court (Administrative)

Harrison J

Judicial Review (Substantive Hearing)

Prisoners

Article 8

Prison Service Order 4400

On facts, relationship between uncle and nephew not within ‘family life’. If art 8 was engaged, the policy that prevented a child, who is not a son/daughter or sibling of prisoner, from visiting those thought to be of potential risk to children, was not disproportionate.

R v Shayler
TLR 10/10/01 (2001) 1 WLR 2206

28 September 2001

Court of Appeal

Woolf LCJ ,  Leveson J ,  Wright J

Appeal (from pre-trial ruling)

Crime - other

Art 6(1),  Article 6

Official Secrets Act 1989, Interception of Communications Act 1985, Criminal Procedure and Investigations Act 1985

the common law relating to defences of duress or necessity of circumstances.

1) OSA 1989’s blanket ban on release of information by former member of security forces not a disproportionate interference with Art 10; 2) s29 CPIA 1985, allowing courts to make pre-trial rulings inter alia, on availability of defences, accorded with Art. 6, so long as judge cautious not to usurp role of jury and appropriateness of ruling monitored during the trial

R (Farrakhan) v Secretary of State for the Home Department
2001 EWHC Admin 781 (2001) ACD 5

01 October 2001

High Court (Administrative)

Turner J

Judicial review (substantive hearing)

Immigration

Article 10,  Article 16,  Other Article

Article 53

s 1 Immigration Act 1971 pt. III Public Order Act 1986

1) On ‘heightened scrutiny’ test SSHD required to show substantial objective justification for interference with freedom of expression and was not entitled to rely solely on discretionary area of judgment. 2) Therefore decision to refuse entry of non-national to prevent public disorder was disproportionate interference with freedom of expression

Bijl v The General Medical Council
LTL 3/10/2001 TLR 24/10/2001 (2002) Lloyd's Rep Med 60

02 October 2001

Privy Council

Hoffman LJ ,  Clyde LJ ,  Mackay LJ

Appeal (General Medical Council Professional Conduct Committee)

Independent and impartial tribunal,  Professions

Article 6

s40 Medical Act 1983

Privy Council has full jurisdiction to hear an appeal under s 40 MA 1983; validity of principle in Evans v GMC (Appeal No. 40 of 1984, unreported) that PC to be very slow in interfering with disciplinary committee’s exercise of discretion not affected by HRA 1998 / Art 6 ECHR

Salisbury District Council v Le Roi
2001 EWCA Civ 1490 LTL 3/10/2001 extempore

03 October 2001

Court of Appeal

Buxton LJ ,  Arden LJ ,  Sir Andrew Morritt V-C

Appeal against commital order

Planning

Article 8

Appears that Court’s implied view was that on facts of case no interference under Art 8(1), therefore no requirement to rehearse decision making with ref to Art 8(2)

Husain v (1) Asylum Support Adjudicator (2) Secretary of State for the Home Department (Interested Party)
LTL 12/10/2001 TLR 15/11/2001

05 October 2001

High Court

Stanley Burnton J

Judicial review (substantive hearing)

Immigration

Article 3,  Article 6,  Article 8

Immigration & Asylum Act 1999

Asylum Support Regulations 2000

i) Support for asylum seekers under IAA 1999 Part VI, for those entitled, is “civil right” within scope of Art 6 ECHR; ii) office of Asylum Support Adjudicators meets Art 6 requirements for independence of tribunal (security of tenure)

R (Amin) v Secretary of State for the Home Department
2001 EWHC Admin 719

05 October 2001

High Court (Administrative)

Hooper J

Judicial review (substantive hearing)

Inquests

Article 2,  Other Article

Article 13

Coroners Act 1988

1) Given positive obligation under Arts 2/13 purpose of inquest into death in custody is not limited to determination of possible criminal liability, but is also to determine i) if breach Art 2 occurred; ii) ensure future compliance with Art 2. 2) Necessary features of inquiry: a) independent and prompt; b) sufficient public scrutiny; c) involvement of next-of-kin

R (Giles) v (1) Parole Board & (2) Secretary of State for Home Department
2001 EWHC Admin 834 (2002) 1 WLR 654

05 October 2001

High Court (Administrative)

Elias J

Judicial review (substantive hearing)

Crime - sentencing,  Prisoners

Article 5

s 80 (2)(b) Powers of Criminal Courts (Sentencing) Act 2000 (formerly s 2(2)(b) Criminal Justice Act 1991)

Art 5 (4) applies to the preventative portion of a determinate longer-than-usual sentence imposed under s 80 (2)(b) PCCSA 2000 and accordingly there must be review of such detention at reasonable intervals by Parole Board

R (Craven) v (1) Secretary of State for the Home Department & (2) Parole Board
2001 EWHC Admin 850

05 October 2001

High Court (Administrative)

Stanley Burnton J

Judicial review (substantive hearing)

Prisoners

Article 8

ss 29 & 31 Crime (Sentences) Act 1997

Former prisoner retains right to respect for family life but this may be subject to proportionate restrictions (by licence conditions) on movement in interests of protecting victim of offence

R v Moore; R v Kerr; R v Haroon
[2002] Crim LR 57

05 October 2001

Court of Appeal

Rose LJ ,  Bell J ,  Stanley Burnton J

Appeal

Crime - procedure

Art 6(1),  Art 6(3),  Article 5

ss 4 & 4A Criminal Procedure (Insanity) Act 1964 as amended by Criminal Procedure (Insanity and Unfitness to Plead) Act 1991

1) Procedures to determine responsibility for actus reus of those found unfit to plead are not ‘criminal’ for purposes of Art 6 (as can only result in acquittal); 2) Even if Art 6 does apply, procedures are fair so long as disadvantages to accused arising from disability are minimised

Clarke v (1) Secretary of State for Environment, Transport and the Regions (2) Tunbridge Wells Borough Council
2001 EWHC 800 TLR 09/10/2001

09 October 2001

High Court (Administrative)

Burton J

Planning appeal

Planning

Article 14,  Article 8

s 54A Town and Country Planning Act 1990

Where applicant family refused to accept housing that all parties agreed was unsuitable due to their gypsy culture, their rights under Art 8 in conjunction with 14 were breached by planning inspector’s decision (refusing permission for siting of caravan) that took the refusal into account