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.

Adan v Newham London Borough Council & Secretary of State for Transport, Local Government and the Regions (Interested Party)
2001 EWCA Civ 1916 LTL 13/12/2001 ILR 18/1/2002 (2002) I All ER 931 (2002) HRLR 17 (2002) HRLR 17

14 December 2001

Court of Appeal

Brooke LJ ,  David Steele LJ ,  Hale LJ

Appeal (County Court)

Housing,  Independent and impartial tribunal

Article 6

Housing Act 1996

Art 3 Local Authorities (Contracting Out of Allocation of Housing and Homelessness Functions) Order 1996

1) Review of housing decisions under Part VII HA 1996 (by local authority reviewing officers, with appeal to county court on point of law) might fail to comply with Art 6(1) on a material dispute of fact; 2) (Hale LJ dissenting) In such cases, the defect might be remedied by local authority exercising its power to contract-out review function under Art 3 of the 1996 Order.

In Re B (A Minor)
2001 UKHL 70 LTL 17/12/2001 TLR 19/12/2001 ILR 15/1/2002 (2002) I WLR 258 (2002) 1 All ER 641

17 December 2001

House of Lords

Lord Nicholls ,  Lord Hoffman ,  Lord Mackay ,  Lord Millett ,  Lord Rodger

Appeal

Family - adoption

Article 8

s 15 (3) Adoption Act 1976

Despite different phraseology, tests to be applied under s15(3) Adoption Act 1976 for making of adoption order on application of one biological parent (hence excluding the other), and Art 8 ECHR, lead to same result

In re Al-Fawwaz; In re Abdel Bary; In re Eidarous
2001 UKHL 69 TLR 18/12/01 (2002) 2 WLR 101

17 December 2001

House of Lords

Lord Hutton ,  Lord Millett ,  Lord Roger ,  Lord Scott ,  Lord Slynn

Habeas corpus - appeal

Extradition

Art 6(3),  Article 5

s1 Extradition Act 1989

In relation to admission of evidence of anonymous witness at extradition committal hearing: 1) no breach of Art 6, as extradition hearing does not determine criminal charge; 2) no breach of Art 5 (4), because even if Art 5 (4) did introduce a new element of fairness into committal proceedings (which was doubtful), fair balance was struck between rights of witnesses and fairness to requesting state and prosecution; and rights of the accused

R (Purnell) v Blackfriars Crown Court
2001 EWHC Admin 1098

17 December 2001

High Court (Queen's Bench Division)

Kennedy LJ ,  Mrs Justice Hallett

Appeal (against sentence)

Crime

Article 6

s 36 (1) Road Traffic Act 1988 s 35 Road Traffic Offenders Act 1988

Extent of duty on court to give reasons for dismissing appeal against conviction is same under English law and ECHR, namey to identify how court resolved contentious issues

R (Furness and Guildford Borough Council) v Environment Agency and Thames Water (Interested party)
2001 EWHC Admin 1058

17 December 2001

High Court (Administrative)

Turner J

Judicial review

Environment

Article 8

Environmental Protection Act 1990

Pollution Prevention and Control (England and Wales) Regulations 2000

Decision to grant Thames Water authorisation for waste incineration dump challenged on ground that conditions of authorisation would not protect F’s right to information affecting their homes, because monitoring information did not have to be made available before it was placed on a public register. (Guerra v Italy relied on) Held, no risk to health or property and art 8 not engaged.

R (Langton and Allen) v Department for the Environment, Food, Rural Affairs and Derbyshire County Council
2001 EWHC Admin 1947

17 December 2001

High Court (Administrative)

Nigel Pleming QC

Judicial Review (Substantive Hearing)

Environment

Art 6(1),  Protocol 1 Article 1

Animal Health Act 1981

Animal By-Products Order 1999

1) Service of notice requiring disposal of animal waste under AHA is not 'commencement of proceedings' for purpose of s 7 HRA. 2) Judicial review is sufficient to cure lack of independence in enforcement proceedings under AHA

R (E) v Ashworth Hospital Authority
2001 EWHC Admin 1089 TLR 17/01/02

19 December 2001

High Court (Administrative)

Richards J

Judicial review (substantive hearing)

Mental health

Article 8

s 37 Mental Health Act 1983

On intensive scrutiny standard of review applicable where ECHR rights engaged, policy restricting extent to which male patients detained in special hospital may wear women’s clothing compatible with Art 8, as proportionate to security aims

R v Drew
2001 EWCA Crim 2861 TLR 14/01/02 (2001) Crim LR 224

19 December 2001

Court of Appeal

Kennedy LJ ,  Bell J ,  Cooke J

Appeal (sentence)

Crime - sentencing

Article 3,  Article 5

s 109 Powers of Criminal Courts (Sentencing) Act 2000 s 37 Mental Health Act 1983

Sentencing mentally ill offender to life imprisonment under ‘two strikes’ legislation was not incompatible with Arts 3 and 5, as there was no suggestion that he would not receive appropriate medical treatment following such disposal

Totalise Plc v (1) Motley Fool Limited & (2) Interactive Investor Limited
2001 EWCA Civ 1897 TLR 10/01/02

19 December 2001

Court of Appeal

Aldous LJ ,  Arden LJ ,  Sedley LJ

Appeal

Civil procedure

Article 10,  Article 8

Civil Procedure Rules

Courts, as s 6 public authorities, must take care not to make orders (here, costs, for failure to disclose identity of allegedly defaming website correspondent) that unjustifiably invade Art 8 right of individual to respect for private life, especially if victim is not before the court

McPherson v Secretary of State for the Home Department
2001 EWCA Civ 1955

19 December 2001

Court of Appeal

Sedley LJ ,  Aldous LJ ,  Arden LJ

Appeal (from IAT)

Immigration

Article 3,  Article 8

s 65 Immigration and Asylum Act 1995 Domestic Violence Act 1995 of Jamaica

Before deciding that deportation under IAA 1995 is ECHR-compliant, domestic authority must find that receiving state would meet UK’s positive obligation to prevent breach of Art 3 (in context of domestic violence) by providing practical and effective protection to person deported

R v Carass
2001 EWCA Crim 2845 TLR 21/01/2002

19 December 2001

Court of Appeal

Waller LJ ,  Rougier J ,  Stanley J

Appeal (interlocutory ruling)

Crime - evidence

Art 6(2)

s 206 Insolvency Act 1986

1) An accused charged with concealing debts in anticipation of winding up a company bears onus of proving lack of intent to defraud; 2) to comply with Art 6(2), ‘prove’ is to be read as ‘adduce sufficient evidence’, and is an evidential (rather than persuasive) burden

R (Curzon Berkley Ltd) v Bliss (Valuation Officer, London Westminster)
LTL 15/1/2002

19 December 2001

High Court ((Admin))

James Goudie QC

Judicial review (substantive hearing)

Local government,  Taxation

Article 14,  Protocol 1 Article 1

Local Government Finance Act 1988, s66(2C)

i) (Where respondent local authority raised HRA issue) in any event, the respondent was not a "victim" for the purposes of HRA; ii) although s66(2C) was plainly a drafting mistake, there was a strong constitutional convention that nothing less than express, unambiguous lanugage was effective to levy tax, so that the interpretation sought would impermissably stray into legislation.

R v Massey
2001 EWCA Crim 2850

20 December 2001

Court of Appeal

Mance LJ ,  Leveson J ,  Penry-Davey J

Appeal against trial judge's ruling refusing to stay proceedings on grounds of delay

Crime - procedure

Art 6(1)

Law relating to abuse of process, and stay of criminal proceedings

Applying i) common law on abuse ( stay only to be granted exceptionally and still more rarely in absence of fault on the part of prosecutor/complainant) and ii) A-G's Reference (No 2 of 2001) [1992] 1 QB 630 on the impact of Art 6(1) on this rule, on the facts, delay between making of complaint of sexual abuse and trial did not constitute abuse of process that justified stay

Spinnato v (1) Governor of HMP Brixton (2) Government of Italy
2001 EWHC Admin 1124

20 December 2001

High Court (Queen's Bench Division)

Kennedy LJ ,  Hallett J

Habeas corpus

Extradition

Article 6,  Article 8

ss 6 (2) & 11(3) Extradition Act 1989

1) Art 8 added nothing to the wording of s 11(3) EA 1989’s meaning of ‘oppressive to return’, as court was already required to have regard to all relevant circumstances, including existence of family life; 2) Art 6 (3) (d) not violated by trial of absent accused given opportunity to be present

Wainwright and Wainwright v Home Office
2001 EWCA Civ 2081 TLR 04/01/2002

20 December 2001

Court of Appeal

Woolf LCJ ,  Buxton LJ ,  Mummery LJ

Appeal (from County Court)

Privacy

Article 8

s 47 Prison Act 1954

rr 39 (1) and 86 (1) Prison Rules

Where alleged that strip search of visitors to prison, taking place pre-2 Oct 2000 was in breach of Art 8, held: 1) No tort of invasion of privacy existed under the common law; 2) given s 3 HRA 1998’s non-retrospectivity, it was not possible to create, through statutory reinterpretation, a tort of breach of privacy arising out of pre-2 Oct 2000 events; 3) if facts occurred post-2 Oct 2000, manner of search would have grounded right to relief for breach of Art 8

A Health Authority v X & Others
2001 EWCA 2014

21 December 2001

Court of Appeal

Thorpe LJ ,  Harrison J ,  Laws LJ

Appeal (High Court)

Civil procedure,  Confidence,  Health - confidentiality

Article 8

National Health Service (General Medical Services) Regulations 1992, Reg 36 (6)

On a health authority’s request for disclosure of GP medical records where the patient’s permission had been refused or not obtained, Art 8 and GP’s duty of confidence required: i) GP to assert confidentiality in answer to any third party disclosure claim; ii) resolution by the High Court, rather than the Health Authority, of conflict between private / public interest in confidentiality of the medical records and any other public interest

Fleurose v FSA Ltd & Disciplinary Appeal Tribunal of the Securities and Futures Authority Ltd
2001 EWCA Civ 2015 LTL 21/12/2001 TLR 15/1/2002 (2002) IRLR 297

21 December 2001

Court of Appeal

Clarke LJ ,  Schiemann LJ ,  Wall LJ

Appeal (High Court)

Other

Art 6(1),  Art 6(2),  Art 6(3),  Article 7

Financial Services Act 1986

1) SFA disciplinary proceedings not “criminal proceedings” under Art 6(1); 2) what “fairness” requires under Art 6 varies with factors including gravity and complexity of offences and defence; 3) on facts, here no unfairness breaching Art 6

R v Lyons, Parnes, Ronson & Saunders
2001 EWCA Crim 2860 LTL 21/12/2001 TLR 1/2/2002 (2002) HRLR 18

21 December 2001

Court of Appeal

Lord Justice Rose V-P ,  Sir Humphrey Potts ,  Tomlinson J

Appeal (CCRC referral)

Crime - independent and impartial tribunal

Article 6,  Other Article

Article 46

s 434 Companies Act 1985; HRA 1998

Test of safety of criminal conviction

1) R v Kansal [2001] 3 WLR 1562 determined that HRA 1998 was not retrospective in effect so as to allow reliance on pre-2 Oct 2000 breach of Art 6 (even where certified as such by ECtHR judgment) in post-2 Oct 2000 appeal in CA (referred by CCRC) as a basis for reopening conviction; 2) neither Art 46 ECHR nor ECHR jurisprudence require re-opening of convictions in these circumstances; even if they did, domestic law (including common law test for safety of conviction applicable on appeal) precluded reliance on breach where this sanctioned by statute in force at time of trial

South Coast Shipping Co Ltd v Havant Borough Council
LTL 17/1/2002

21 December 2001

High Court (Chancery Division)

Pumfrey J

Appeal (review)

Civil procedure,  Legal professional privilege

Art 6(1),  Article 8

Costs Practice Direction, para 40.14

No violation of Arts 6 or 8 in position under CPD para. 40.14 that, rather than having a discretion to override legal professional privilege, costs judge may put receiving party to election as between disclosure of privileged material or reliance on other secondary evidence

R (Cummins & others) v (1) Camden LBC (2) Secretary of State for the Environment Transport & the Regions (Respondents) & (1) Barratt Homes Ltd (2) DDSF Ltd (Interested Parties)
2001 EWHC Admin 1116 LTL 21/12/2002

21 December 2001

High Court (Administrative Division)

Ouseley J

Judicial review (substantive hearing)

Planning

Art 6(1),  Article 8

Town & Country Planning Act 1990

Obiter: Where playground used by applicant’s children would be overshadowed by buildings for which planning permission granted, Art 6 not engaged because, on facts, no rights under Art 1 Prot 1 or Art 8 had been “determined” for purposes ECHR

R (Green ) v (1) Police Complaints Authority (2) Secretary of State for the Home Department (3) Chief Constable of South Yorkshire Police and DS Lawrence (Interested Party)
2001 EWHC Admin 1160 TLR 16/01/02

21 December 2001

High Court (Administrative)

Moses J

Judicial Review (substantive hearing)

Police

Article 2,  Article 3

s 80 Police Act 1996

Claimant’s legitimate interest as an alleged victim of violations of Arts 2 / 3 entitled him to i) disclosure of, and ii) comment on, evidence, held by the police, of witnesses to the incident which was the subject of the PCA’s investigation

R v Percy
2001 EWHC Admin 1125 TLR 21/01/01

21 December 2001

High Court (Queen's Bench Division)

Hallett J ,  Kennedy LJ

Appeal by way of case stated (conviction)

Crime - public order

Article 10

s 5 Public Order Act 1986

Where trial judge had failed adequately to address question of proportionality of restriction of Art 10 rights of “anti-Star Wars” protestor convicted for insulting behaviour toward US service personnel (caused by standing on defaced US flag ), conviction could not stand

Hughes and others v HM Customs and Excise: R and another v Crown Prosecution Service
[2001] All ER (D) 373 (Dec)

21 December 2001

High Court (Administrative)

Hooper J

Judicial review of restraint and receivership orders made in relation to property the subject of criminal confiscation proceedings, by third party owners and not-yet-convicted defendants

Crime

Protocol 1 Article 1

Part VI Criminal Justice Act 1988 Drug Trafficking Act 1994

Property owned by innocent third party or acquitted defendant restrained, pending outcome of criminal trial under CJA 1988 or DTA 1994 and possible confiscation proceedings, cannot be used to remunerate receiver (Re Andrews [1999] 2 All ER 751distinguished); obiter, s 3 HRA reinterpretation would have been necessary to avoid incompatibility with Art 1 of Prot 1

R (Nahar) v Social Security Commissioners
2001 EWHC Admin LTL 8/1/2001 TLR 21/12/2002 (2002) I FLR 670

21 December 2001

High Court (QBD)

Munby J

Judicial review (substantive hearing)

Social/welfare benefits

Article 8

Judicial review

1) As Social Security Appeal Tribunal's decision under challenge pre-dated HRA 1998's entry into effect, HRA not engaged, as not relevantly retrospective; 2) (obiter) No lack of respect for family life under Art 8 in requiring N to litigate "in manner not precluded by issue estoppel and...not an abuse of process"; requirement to litigate same issue twice in so far as affected two government departments met tests of proportionality and necessity under Art 8(2).

Mountney v Therharne: Re Mountney

21 December 2001

High Court (Chancery)

Stanley Burnton J

Appeal

Insolvency

Article 8

Insolvency Act 1986 s306

Interpretation and effect of s283 Insolvency Act 1986 unaffected by s3 HRA 1998