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.

Migliorelli v Government of Italy
2001 EWHC Admin 861

29 October 2001

High Court (Queen's Bench)

Rose LJ ,  Sullivan J

Habeas Corpus

Extradition

Article 6

s 6 (2) (b) Extradition Act 1989

Obiter: in determining whether return to requesting country is ‘in interests of justice’ under s. 6 (2) (b) EA 1989, an extraditing authority’s consideration includes, but is not restricted to, factors of ‘unfairness’ that could constitute a breach of Art 6 ECHR

Director of Public Prosecutions v Higgins
2001 EWHC Admin 871

29 October 2001

High Court (Queen's Bench)

Sullivan J ,  Rose LJ

Prosecution appeal by way of case stated (against conviction)

Crime

Article 6

s 5 (1) (a) Road Traffic Act 1988 s 15 (5) Road Traffic Offenders Act 1988

R (Hunter) v Ashworth Hospital
2001 EWHC Admin 872

30 October 2001

High Court (Administrative)

Bellamy J

Judicial review (substantive hearing)

Mental health

Article 2,  Article 8

s 3 Mental Health Act 1983

Policy not allowing Ashworth Hospital patient to possess condoms: 1) not breach of Art 2 or Art 8 right to physical integrity, as no evidence that real/immediate threat to life of applicant or others existed; 2) if risk had existed, hospital was doing all that reasonably could be expected to obviate risk by security precautions; 3) where absolute right involved court must apply anxious scrutiny test to ensure there are no other preventative steps that may reasonably be required

R v Bianco
2001 EWCA Crim 2516

01 November 2001

Court of Appeal

Laws LJ ,  Rant J ,  Smedley J

Appeal against conviction

Crime - procedure

Art 6(1)

The defence of duress

No violation of Art 6(1) occurred where trial judge withdrew defence of duress from jury as there was no evidence on which the jury could properly accept it

R v (1) Botmeh & (2) Alami
2001 EWCA Crim 2226 TLR 8/11/2001 (2002) 1 WLR 531

01 November 2001

Court of Appeal

Rose LJ ,  Goldring ,  Hooper

Appeal (conviction)

Crime - evidence

Article 6

Crown Court (Criminal Procedure and Investigations Act 1996) Disclosure Rules 1997

That regarding public interest immunity

Where new evidence arising after trial was i) not disclosed to the defence, and ii) subject to an ex parte public interest immunity hearing in the Court of Appeal, Art 6 was not breached as defence has no absolute right to disclosure, so long as counterbalancing measures protect accused

R (Davies & Atkins) v Crawley Borough Council
2001 EWHC Admin 854 (2001) 46 EG 178 CS

02 November 2001

High Court (Administrative)

Goldring J

Judicial review (substantive hearing)

Planning

Protocol 1 Article 1

s 3 & Schedule 4 Local Government (Miscellaneous Provisions) Act 1982 Town and Country Planning Act 1990

Council controls on street trading under LG (MP) Act 1982 did not violate Art 1 Prot 1: i) restrictions on right to enjoyment of property under Art 1 Prot 1 subject to wide margin of appreciation; ii) any interference caused by council’s exercise of discretion was proportionate, on the facts

R (Edwards) v (1) Head Teacher of Whitton High School (2) Governing Body of Whitton High School (3) Independent Appeal Panel of Richmond London Borough (4) Secretary of State for Education
2001 EWHC Admin 899 LTL 8/11/2001

02 November 2001

High Court (Queen's Bench Division)

Nigel Pleming QC

Judicial Review (Substantive Hearing)

Education,  Independent and impartial tribunal

Article 6

Paragraph 2 of Schedule 18, School Standards & Framework Act 1998 (constitution of appeal panels)

n/a (no discussion in judgment of applicant's argument that constitution of Appeal Panel breached Art 6's independent and impartial tribunal requirement)

R (A) v Lambeth London Borough Council
2001 EWCA Civ 1624 TLR 20/11/2001 (2001) 2 FLR 1201

05 November 2001

Court of Appeal

Laws LJ ,  Chadwick LJ ,  Sir Phillip Otton LJ

Judicial review (appeal)

Housing

Article 14,  Article 8

ss 17, 20 and Schedule 2 of Part 1, Children Act 1989

(1) No individually enforceable duty on a local authority under s17 CA 1989 to provide accommodation to a child assessed as being in need; (2) no discrimination under Arts 8 or 14 against children “in need” as compared to adults, in relation to provision of accommodation under schemes of CA 1989 (particularly with reference to s17) and National Assistance Act 1948

Saad Al-Faghi v HH Saudi Research & Marketing (UK) Ltd
LTL 5/11/2001 (2002) EMLR 215

05 November 2001

Court of Appeal

Simon Brown LJ ,  Mantell LJ ,  Latham J

Appeal against decision on qualified privilege

Defamation

Article 10

defamation - qualified privilege

-

Briffett & Bradshaw v Director of Public Prosecutions
2001 EWHC Admin 841 (2002) EMLR 12

06 November 2001

High Court (Queen's Bench Division)

Laws LJ ,  Newman J

Defendants' appeal by way of case stated (against conviction)

Crime

Article 10,  Article 7

s 39 Children and Young Persons Act 1933

1) Restriction orders on media identification of child parties to legal proceedings must be sufficiently precise to meet test of legal certainty at common law (no recourse to Art 7 held necessary); 2) existence under s39 CYPA 1933 of sanction of prosecution does not in itself disproportionate interference with Art 10

L v Director of Public Prosecutions
2001 EWHC Admin 882 [2001] All ER (D) 106 (Nov)

08 November 2001

High Court (Divisional)

Pill LJ ,  Poole J

Appeal by way of case stated (conviction)

Crime - evidence

Article 6

s 139 Criminal Justice Act 1988 (as amended by Offensive Weapons Act 1996)

Presumption of innocence under Art 6(2) not violated by requirement under s139 CJA 1998 that accused prove good reason / lawful excuse for possession of bladed weapon in public place, as fair balance struck between accused’s rights and public interest, within “reasonable limits” required under ECHR (Salabiaku v France (1988) 13 EHRR 379)

Tucker v Secretary of State for Social Security
2001 EWCA Civ 1646

08 November 2001

Court of Appeal

Waller ,  Mantell LJ ,  Thorpe LJ

Judicial Review (appeal)

Social/welfare benefits

Article 14,  Article 8

ss 123 (1), 130 & 137 (2) Social Security Contributions and Benefits Act 1987

reg. 7 Housing Benefit (General) Regulations 1987

Arts 8/14 ECHR not breached by regulation which disentitled claimant, as a tenant liable to pay rent to father of her child (from whom she was estranged) from receipt of housing benefit: any discrimination (compared with person with not responsible for child of landlord) legitimate and proportionate response to prevent abuse

R (Smith) v Crown Court at Lincoln; R (Chief Constable of Lancashire) v Crown Court at Preston
2001 EWHC Admin 928 (2002) UKHRR 31 LTL 6/3/2002

12 November 2001

Court of Appeal

Laws LJ ,  Crane LJ

Judicial review (substantive hearing)

Crime

Article 6

ss 21 & 22 Licensing Act 1964

r 3(2) Crown Court Rules

Rule 3(2) CCR does not comply with Art 6(1)’s independent and impartial tribunal requirement, in so far as the rule requires justices for petty sessions area in which premises to which the appeal relates is situated to sit on licensing appeals (therefore struck down by application of “blue-pencil” test)

Karia v Franses & Another

12 November 2001

High Court (Chancery Division)

Lightman J

Appeal (Registrar in bankruptcy)

Other

Article 8

s 335A Insolvency Act 1986

1) Interference with Art 8 is in principle capable of constituting an “exceptional circumstance” outweighing the interests of creditors under s335A IA 1986; but 2) on facts, insufficient interference to qualify

R (Wirral Health Authority & another) v (1) MHRT & DE (2) Wirral & West Cheshire Community NHS Trust (3) Ashworth Special Hospital Authority
2001 EWCA Civ 1901 LTL 13/11/2001 extempore

13 November 2001

Court of Appeal

Dyson LJ ,  Clarke LJ ,  Mance LJ

Judicial review (appeal)

Mental health

Article 7

ss 37 & 47 Mental Health Act 1983

Art 7 ECHR not engaged in the application of ss37 & 47 MHA 1983 (order for compulsory treatment in hospital for mental disorder, following criminal conviction) so that quashing by High Court of MHRT’s decision to discharge patient from detention under s37 was ECHR-compatible

R (Anderson & Taylor) v Secretary of State for the Home Department
2001 EWCA Civ 1698 LTL 13/11/2001 TLR 16/11/2001 ILR 20/11/2001

13 November 2001

Court of Appeal

Woolf LCJ ,  Buxton LJ ,  Simon Brown LJ

Judicial review (appeal)

Crime - sentencing

Article 5,  Article 6

s 29 (1) Crime (Sentences) Act 1997

Fixing of tariff element of mandatory sentence for murder by Home Secretary does not breach Art 6: obiter (per Simon Brown & Buxton LJJ) although tariff-fixing in this situation is sentence-fixing exercise within scope of Art 6, so that tariff-fixing by Home Secretary breaches Arts 6 & 5(4), relief sought could not be granted because ECtHR case law did not yet so regard it.

R v Forsyth
2001 EWCA Crim 2926

14 November 2001

Court of Appeal

Judge LJ ,  Hallet J ,  Stanley Burnton J

Appeal against conviction

Crime - evidence

Art 6(2)

s 28 Misuse of Drugs Act 1971

Trial judge's direction to jury incorrect as (in accordance with R v Lambert (2001) 3 WLR 306) burden on accused to establish s 28 defence is evidential rather than legal: retrial ordered

Legal & General Assurance Ltd v Kirk
2001 EWCA Civ 1803 LTL 14/11/2001 extempore (2002) IRLR 124

14 November 2001

Court of Appeal

Jonathan Parker LJ ,  Harrison J ,  Ward LJ

Appeal (County Court)

Employment,  Tort - negligence

Protocol 1 Article 1

Common law (negligence)

No “possession” for purposes of Art 1 Prot 1 in the right to seek a particular type of employment

Humberside Finance Group Limited v Hicks

14 November 2001

High Court (Chancery Division)

Neuberger J

in commercial dispute application by applicant to strike out parts of defendant’s counterclaim.

Company law

Protocol 1 Article 1

rule in Johnson v Gore Wood

Common law rule precluding suit in negligence against third party by employee, who is also principle shareholder of company, for loss of salary or pension rights etc, as result of failure of company, consistent with Art 1 of Prot 1

R (Williamson & others) v Secretary of State for Education
2001 EWHC Admin 960 TLR 12/12/2001 (2002) HRLR 14

15 November 2001

High Court

Elias J

Judicial review (substantive hearing)

Education,  Other

Article 12,  Article 8,  Article 9,  Protocol 1 Article 2

s 548 Education Act 1996 (as amended by s131 School Standards and Framework Act 1998)

Neither Art 9, Art 2 of Protocol 1, Art 8 nor Art 12 is engaged by the prohibition of corporal punishment in schools under s 584 EA 1996

R (Suresh & another) v Secretary of State for the Home Department
2001 EWHC Admin 1028

16 November 2001

High Court

Sir Richard Tucker

Judicial review (substantive hearing)

Asylum

Article 3,  Article 8

HRAECHR in general

1) No obligation on UK under ECHR to non-UK national outside the jurisdiction at risk of deportation to third country where alleged risk of Art 3 treatment, by virtue of either i) a failed application to enter UK or ii) mother’s residence in UK; 2) no general principle under ECHR that Art 3 violation can arise in relation to relative of person who suffers Art 3 treatment; 3) SSHD not obliged to ensure other states’ compliance with obligations under international law

R (Robertson) v City of Wakefield Metropolitan Council & Another
2001 EWHC Admin 915 LTL 16/11/2001 TLR 27/11/2001 (2002) 2 WLR 889

16 November 2001

High Court (QBD)

Maurice Kay J

Judicial review (substantive hearing)

Electoral law,  Privacy

Article 8,  Protocol 1 Article 3

Data Protection Act 1998; Representation of the People Act 2000; Representation of the People (England & Wales) Regulations 2001

An elector’s rights under Art 8 and Art 3 Prot 1 were violated by an Electoral Registration Officer’s refusal of the elector’s request not to supply details of his name and address appearing on the electoral register to commercial organisations

O v Surrey Social Services and Guildford County Court

20 November 2001

High Court (Chancery Division)

Neuberger J

application to strike out action against a judge

Civil procedure

Article 6

Section 2(5) Crown Proceedings Act 1947

law that judge or crown can not be sued for damages arising out of discharge of judicial duties

Art 6(1) does not change position under s 2(5)CPA 1947 or common law that prevents judge or crown being sued for damages arising out of discharge of judicial duties

R v Grant; Grant v Director of Public Prosecutions
2001 EWCA Crim 2611 TLR 10/12/01

22 November 2001

Court of Appeal

Richards J ,  Pitchford J ,  Rose LJ

Appeal; appeal by way of case stated (disposition)

Crime - procedure

Art 6(1),  Article 5

ss 4, 4A, & 5 Criminal Procedure (Insanity) Act 1964 Schedule 1 Criminal Procedure (Insanity and Unfitness to Plead) Act 1991

1) Art 6(1) not engaged in prosecuting authority’s decision as to whether to prefer charge of murder or manslaughter, so that no breach of Art 6 in judge’s obligation to make mandatory detention order against person found i) unfit to plead and ii) to have committed the act/omission founding charge of murder 2) Although Art 5(1)(e) could be violated by fact that s4A’s procedure for disposal does not address necessity for detention on grounds of “unsound mind”, on facts, detention was warranted on this basis in this case

R (Kashamu) v (1) Governor of HM Prison Brixton (2) Government of the USA;: R ((1) Maklulif (2) Labsi) v Bow Street Magistrates’ Court
2001 EWHC Admin 980 LTL 12/12/2001 TLR 12/12/2001 (2002) 2 WLR 907

23 November 2001

High Court (Queen's Bench Division)

Rose LJ ,  Pitchford J

Habeas corpus

Extradition

Article 5

Extradition Act 1989 Schedule I, s6(1) & s11(3)

1) Art 5(4) ECHR’s right to review of lawfulness of detention pursuant to extradition request entails right to review for abuse of process; 2) as SSHD cannot meet other Art 5(4) standards (speedy determination, independence and impartiality) in extradition proceedings, this obligation therefore met by reading s6(1) EA 1989 as conferring relevant review jurisdiction on magistrates’ court.