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 (Bibi) v Rochdale Metropolitan Borough Council Housing Benefit Review Board
LTL 30/11/2001

27 November 2001

High Court

Newman J

Judicial review (substantive hearing)

Housing,  Independent and impartial tribunal

Article 6

Housing Benefit (General) Regulations 1987, Schedule 7

No violation of Art 6 (1) under the Regulations’ scheme for housing benefit appeals (by which councillors comprised the Reviewing Board) because, on facts, the appearance of lack of independence and impartiality could be cured by the High Court’s jurisdiction to review the reasonableness of the Board’s conclusions, where drawn from uncontested facts

R (Pretty) v (1) Director of Public Prosecutions (2) Secretary of State for the Home Department (Interested Party)
2001 UKHL 61 TLR 5/12/2001, (2001) 3 WLR 1598 (2002) 1 All ER 1

29 November 2001

House of Lords

Lord Bingham ,  Lord Hobhouse ,  Lord Hope ,  Lord Scott ,  Lord Steyn

Judicial review (appeal)

Health,  Right to life

Article 14,  Article 2,  Article 3,  Article 8,  Article 9,  Other Article

Sixth Protocol, Articles 1 & 2

ss 2(1) and 2(4) Suicide Act 1961

No breach of Convention rights in DPP’s refusal to grant immunity against prosecution under SA 1961 to terminally ill patient’s husband, in relation to his possible future assistance to her in committing suicide

R v Kansal
2001 UKHL 62 [2001] 3 WLR 1562 (2001) 1 All ER 257 (2002) HRLR 9 (2002) UKHRR 169 LTL 29/11/2001 TLR 4/12/2001

29 November 2001

House of Lords

Lord Hope ,  Lord Hutton ,  Lord Lloyd ,  Lord Slynn ,  Lord Steyn

Prosecutor's appeal

Crime,  HRA 1998

Article 6

HRA 1998: ss7(1)(a), 7(1)(2), 7(6), 22(4), 6

House of Lords' reasoning in R v Lambert ((2001) 3 WLR 206) that, although HRA is retrospective in respect of proceedings brought by or at the instigation of a public authority, it is not retrospective for appeals in such proceedings, was mistaken: the decision would, however, be followed.

Gayle v Gayle
2001 EWCA Civ 1910

29 November 2001

Court of Appeal

Thorpe LJ ,  Laws LJ

Appeal against order of the county court

Family

Article 6

n/a

While there was substance in criticism of county court summons form for committal proceedings that it carried misleading inference that recipient bore burden of proof to show no breach as alleged, on the facts no violation of Art 6(2) because appellant had every opportunity of a fair hearing.

R v Weaver
2001 EWCA 2768 LTL 18/12/2001

30 November 2001

Court of Appeal

Wright LJ ,  Fox LJ

Appeal (sentence)

Crime - sentencing

Article 2

ECHR Art 2 had no relevance to the level of sentence to be imposed on an individual for manslaughter, given that range of sentences for this offence extended to life imprisonment in appropriate cases

R (Marais) v Governor of HM Prison Brixton
2001 EWHC Admin 1051 TLR 18/12/2001 LTL 14/12/2001

30 November 2001

High Court

Kennedy LJ ,  Pitchford J

Habeas corpus

Extradition

Article 6,  Article 7,  Article 8

Extradition Act 1989, Part III

Extradition proceedings to South Africa did not impose a penalty within the meaning of Art 7 ECHR and were therefore lawful: i) process of bringing accused person before a court not a “penalty”; ii) extradition process would not form any part of penalty imposed; iii) any penalty imposed caused by sentencing court, not by extradition

Carpenter v Associated Newspapers Ltd
LTL 30/11/2001

30 November 2001

High Court

Gray J

Application to strike out / stay libel proceedings

Defamation

Article 6

Common law (inherent jurisdiction / abuse of process)

1) On application to strike out / stay, impossibility of “fair trial” could be equated with inequality of arms under Art 6 ECHR; 2) principle that Art 6 is breached by a domestic court’s refusal to accede to disclosure which significantly disadvantaged one party to proceedings (De Haes v Gijsels v Belgium 1998 25 EHRR) should be given horizontal effect; but 3) Art 6 not breached automatically wherever inequality of arms: court required to inquire into provenance of alleged unfairness

R (Personal Representatives of Beeson) v Dorset County Council & Secretary of State for Health (Interested Party)
2001 EWHC Admin 986 LTL 7/12/2001 TLR 21/12/2001 (2002) HRLR 15

30 November 2001

High Court

Richards J

Judicial review (substantive hearing)

Social/welfare benefits

Article 14,  Article 6

ss 21 & 22 National Assistance Act 1948

Regs 20 & 25 National Assistance (Assessment of Resources) Regulations 1992 SI 1992/2977

(1) Art 6 (1)’s independent and impartial tribunal requirement was breached by the Regulations’ scheme for means assessment for liability for costs of residential care, given extent of involvement of local councillors and officers decision-making process; (2) breach could be cured in future by council appointing instead independent appeals panel (nothing in the legislation prevented this), rather than extending scope of judicial review; (3) Art 14 not breached

R (Potter and others) v Secretary of State for the Home Department
2001 EWHC Admin 1041

30 November 2001

High Court (Administrative)

Moses J

Judicial review (substantive hearing)

Prisoners

Article 14,  Article 6,  Article 8

s 47 (1) Prison Act 1952

r 8 Prison Rules 1999

Policy that sex offender prisoners who refuse to attend treatment program, because they deny guilt, are ineligible for enhanced privileges does not breach: 1) Art 6 (in relation to appeal against conviction); 2) Art 8, as result of fewer family visits: fact of imprisonment justifies interference with right to family life, and policy regulating access to family as a reward/penalty is proportionate; 3) Art 14: not engaged, as sex offenders not similarly positioned with other types of offenders who deny guilt

R (Amvac Chemical UK Ltd) v Secretary of State for the Environment, Food and Rural Affairs and Secretary of State for Transport, Local Government and Regions and Food Standards Agency.
2001 EWHC Admin 1011 LTL 6/12/2001

03 December 2001

High Court (QBD)

Crane J

Judicial review (substantive hearing)

Other

Protocol 1 Article 1

Control of Pesticides Regulations 1986

Qualified regulatory approval under Control of Pesticides Regulations 1986 not “possession” for purposes of Art 1 Prot 1

London Borough of Harrow v Qazi
2001 EWCA Civ 1834

03 December 2001

Court of Appeal

Arden LJ ,  Gibson LJ ,  Mantell LJ

Appeal (county court)

Housing

Article 8

Part IV Housing Act 1985

Lack of any legal or equitable right to occupy property i) is not fatal to assertion of right to respect for home, but ii) may bear on question of whether interference is in accordance with law and proportionate

R v Porter
2001 EWCA Crim 2699

04 December 2001

Court of Appeal

Rafferty J ,  Potter LJ ,  Zucker QC

Appeal (conviction)

Crime - fair hearing

Art 6(3)

relating to adjourning trial in interests of fairness

Art 6(3)(b) requires judges to take account of the requirement that accused has adequate time to prepare defence when considering accused’s request to vacate trial date in order to obtain expert reports

R (IH) v (1) Nottinghamshire Healthcare National Health Trust (2) Secretary of State for the Home Department (3) Secretary of State for Health and (4) Mental Health Review Tribunal (Interested Party)
2001 EWHC Admin 1037

04 December 2001

High Court (Administrative)

Bell J

Judicial Review (substantive hearing)

Mental health

Article 5

s 73 (2) & (7) Mental Health Act 1983

r 16 Mental Health Tribunal Rules 1983

Art 5 not breached by fact that MHRT cannot guarantee that conditions attaching to an order for deferred conditional discharge under s73 will be implemented within a reasonable time, because s73 (7) can be interpreted to enable MHRT i) to monitor situation, ii) to amend conditions of discharge, to prevent unacceptable delay

Loutchansky v Times Newspapers Ltd
2001 EWCA Civ 1805 LTL 5/12/2001 TLR 7/12/2001 ILR 11/12/2001 (2002) 1 All ER 652 (2002) 2 WLR 640 (2002) EMLR 241

05 December 2001

Court of Appeal

Lord Phillips MR ,  Simon Brown LJ ,  Tuckey LJ

Appeal (High Court)

Defamation,  Freedom of expression

Article 10,  Article 8

Defamation

In relation to publications arising from internet archives, Art 10 ECHR was not breached by the rule in Duke of Brunswick v Hermer [1849] 14 QB 185, so that there was no requirement to substitute for this rule the US “single publication rule” of liability in defamation

International Transport Roth GmbH & others v Secretary of State for the Home Department
TLR 11/12/2001

05 December 2001

High Court (Administratuve)

Sullivan J

Judicial review (substantive hearing)

Crime - fair hearing

Art 6(1),  Art 6(2),  Art 6(3),  Article 14,  Protocol 1 Article 1

Pt II Immigration and Asylum Act 1999

Carriers’ Liability (Clandestine Entry and Sale of Transporters) Regulations 2000 Carriers’ Liability (Clandestine Entrants) (Code of Practice) Order 2000

1) Penalty regime for drivers transporting clandestine entrants into UK is criminal in nature for purposes of Art 6: i) domestic classification as civil not decisive; ii) scheme is of general application; iii) proscribes substantial penalty, which serves both punitive and deterrent purposes. 2) Therefore absence of right to silence, reverse burden of proof, lack of presumption of innocence and no provision of interpreter breaches Art 6 (2) & (3) 3) s 4 HRA declaration of incompatibility necessary

R (Kariharan and others) v Secretary of State for Home Department
2001 EWHC Admin 1004 ILR 21/12/02

05 December 2001

High Court (Administrative)

Stanley Burnton J

judicial review

Immigration

Article 3

s 65 Immigration and Asylum Act 1999

Article 3 Immigration and Asylum Act 1999 (Transitional and Consequential Provisions) Order 2000

New ‘human rights’ appeal under s 65 IAA 1999 not available to failed asylum applicant, where decision made and former appeal rights exhausted pre-October 2000, who is subject of decision of SSHD to remove

R (Spath Holme Ltd) v Secretary of State for the Environment, Transport & the Regions

07 December 2001

House of Lords

Lord Bingham ,  Lord Cooke ,  Lord Hope ,  Lord Hutton ,  Lord Nicholls

Judicial review (appeal )

Housing

Article 14,  Other Article,  Protocol 1 Article 1

Article 13

s31 Landlord & Tenant Act 1985

Rent Acts (Maximum Fair Rent) Order 1999 (SI 6/1999)

Order did not breach ECHR: i) any restriction on Art 1 Prot 1 in accordance with law; ii) balance struck between interests of landlords and tenants not perverse; iii) a wide margin of discretion operated in relation to policy in this field

R (Chester) v Secretary of State for Social Security
2001 EWHC Admin 1119

07 December 2001

High Court (Administrative Court)

Collins J

Judicial review (substantive hearing)

Family

Article 8

Social Security Contributions & Benefits Act 1992, Sched 10, para 5

Social Security (Claims & Payments) Regulations 1987

1) Secretary of State must consider potential adverse effect on Art 8 rights of husband, wife and children when exercising discretion under SCBA 1992 to determine entitlement to child benefit as between competing claims; 2) Reg. 34 of the SS (C&P) Regs 1987 provides scope to achieve fairer result by reflecting more exactly actual division of care, on facts

Wilkey & DAS Systems Ltd v (1) British Broadcasting Corporation & (2) Moyles

09 December 2001

High Court (Queen's Bemch)

Gray J

Interlocutory ruling

Defamation

Art 6(1),  Article 14

ss 4A & 32A Limitation Act 1980

It is not incompatible with Art 6(1) (right to access to a court) for courts to adopt procedural rules which lay down timetables and strict rules to ensure the expeditious conduct of litigation.

R v Singh
2001 EWCA Crim 2884

10 December 2001

Court of Appeal

Keene LJ ,  Maddison J ,  Tuckey LJ

Appeal (conviction)

Crime - evidence

Article 14,  Article 6

Similar fact evidence

No breach of Arts 6 / 14 (discrimination on grounds of previous conviction) in admission of similar fact evidence admissible at common law

R v Pearce
2001 EWCA Crim 2834 TLR 21/1/02

11 December 2001

Court of Appeal

Kennedy LJ ,  Hughes J ,  Penry Davey J

Appeal (conviction)

Crime - evidence

Article 6,  Article 8

s 80 (1) Police and Criminal Evidence Act 1999

1) Arts 6 & 8 not violated by court requiring unmarried partner of accused to give evidence against him: any interference with Art 8 rights of either accused or his partner was in accordance with law, and justified, in the interests of law and order; 2) s80 PACE 1984’s exemption of married persons from compellability could not be read as extending to non-married persons

R (Fuller and others) v (1) Chief Constable of Dorset Police & (2) Secretary of State for the Home Department (Interested Party)
2001 EWHC Admin 1057

12 December 2001

High Court (Administrative)

Stanley Burnton J

Judicial review (substantive hearing)

Public order

Article 3,  Article 6,  Article 8,  Protocol 1 Article 1

ss 61 & 62 Criminal Justice and Public Order Act 1994

1) Power under s61 CJPOA 1994 to remove trespassers (which was targeted at travellers) not incompatible per se with Art 8; but 2) compatibility with Art 8 of orders made under the s 61, preventing travellers residing on identified land, depends on facts of individual case concerned

Magill v (1) Weeks & (2) Porter
2001 UKHL 67 TLR 13/12/2001 (2002) 2 WLR 37

13 December 2001

House of Lords

Lord Hope ,  Lord Bingham ,  Lord Hobhouse ,  Lord Scott ,  Lord Steyn

Appeal

Local government

Art 6(1)

s 20 (1) Local Government Finance Act 1982

No breach of Art 6 by auditor’s inquiry into misconduct in public office under s20 LGFA 1982: 1) inquiry is civil, not criminal in nature; 2) auditor’s apparent lack of independence / impartiality (arising from role as investigator, prosecutor and judge) cured by availability of full appeal to Divisional Court; 3) there had been no unreasonable delay, taking account of complexity of case, parties’ conduct and authorities’ conduct of proceedings (Konig v FRG [1978] 2 EHRR 170)

Goode v Martin
2001 EWCA Civ 1899 TLR 24/01/2002 (2002) 1 All ER 620

13 December 2001

Court of Appeal

Brooke LJ ,  Kay LJ ,  Latham LJ

Appeal (interlocutory issue)

Civil procedure

Art 6(1)

s 35 (2) Limitation Act 1980

r 17.4 Civil Procedure Rules

To comply with right of access to court under Art 6 (1), it was necessary to read words into r 17.4 so as to allow, on claimant’s application to amend pleadings, addition of new cause of action, even after expiry of relevant limitation period

R (Middleton) v HM Coroner for Western Somersetshire & Secretary of State for the Home Department (Interested Party)
2001 EWHC Admin 1043 LTL 20/12/2001

14 December 2001

High Court

Stanley Burnton J

Judicial review (substantive hearing)

Inquests

Article 2

ss 11 & 32 Coroners Act 1988

r 42 Coroners’ Rules

State’s Art 2 procedural obligations arise not only in the case of deliberate killing, but also where death arguably results from negligent failure to protect life of detained person; 2) where inquest, on facts, fails to meet this procedural obligation i) possibility of civil action also inadequate, but ii) lack of adjectival inquest verdict of neglect (under R v HM Coroner for North Humberside and Scunthorpe, ex parte Jamieson [1995] QB 1) does not of itself preclude satisfaction of procedural obligation, given availability of ad hoc investigation (as in R (Amin) v Home Secretary, QBD 05.10.01 (unreported)