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 (Adlard) v Secretary of State for the Environment, Transport and the Regions (Defendant) & (1) Fulham Stadium Ltd (2) Hammersmith & Fulham LBC
2002 EWHC 7 LTL 18/1/2002

17 January 2002

High Court (Administrative)

Collins J

Judicial review (substantive hearing)

Planning

Art 6(1),  Article 8

Neither Art 6 (1) nor 8 engaged by Secretary of State’s refusal either to call in planning application; hold a public inquiry; or give reasons for refusing to call in the application.

Lee v Leeds City Council; Ratcliffe v Sandwell Metropolitan Borough Council
2002 EWCA Civ 06 TLR 29/01/02

21 January 2002

Court of Appeal

Chadwick LJ ,  Sir Murray Stuart-Smith ,  Tuckey LJ

conjoined housing repair appeals from county court

Housing

Article 8

s 11(1) Landlord and Tenant Act 1985 ss 4(1), (3) and (4) Defective Premises Act 1972

Where local authority housing is virtually uninhabitable due to design defect causing damp: 1) there is positive obligation on public landlord to ensure that condition of premises do not infringe Art 8 rights; 2) implied covenant in s 11(1)(a) LTA 1985 which excludes duty to remedy structural defects does not require s 3 HRA reinterpretation as current meaning does not produce incompatibility; not for court to reinterpret to confer greater rights on local authority tenants than Parliament intended

Attorney-General's Reference No 124 of 2001 (R v Davies)
2002 EWCA Crim 197

22 January 2002

Court of Appeal

Woolf LCJ ,  Keith J ,  Mitchell J

Attorney-General's reference under s36 Criminal Justice Act 1988 for leave to refer to CA for review of sentence regarded as unduly lenient

Crime - sentencing

Other Article

none cited (in Offen 3,5, 7 & 8)

s 109 Power of Criminal Courts (Sentencing) Act 2000

Application of interpretation of 'two strikes' legislation in R v Offen ([2001]1 WLR 253) meant that sentence of less that life imprisonment sentence for offence of manslaughter was not unduly lenient

Matthews v Ministry of Defence
2002 EWHC 13 QB LTL 22/1/2002 TLR 30/1/2001

22 January 2002

High Court (Queen's Bench Division)

Keith J

Civil claim (preliminary issue)

Tort

Article 2,  Article 6

Crown Proceedings Act 1947, s10

S 10 CPA 1947 incompatible with Art 6 (1) ECHR, as disproportionate restricts civil right of service personnel not to be exposed to asbestos, in circumstances amounting to negligence or breach of statutory duty

R (Mohammed & others) v Secretary of State for the Home Department

24 January 2002

High Court (QBD)

Turner J

Judicial review (substantive hearing)

Immigration,  Judicial review

Article 3,  Article 8

s 11 Immigration & Asylum Act 1999

Where alleged that asylum determination treats s11(1) IAA 1999 as ousting judicial review of deemed finding by SSHD that, on deportation to a Dublin Convention-country, any human rights claim is “manifestly unfounded”, held: i) SSHD has unfettered discretion as to removal where s11(2) conditions are met; ii) SSHD not obliged to rely on his s11(1) decision in deciding whether to certify a human rights claim; iii) unarguable (at first instance) that decision in TI v UK [2000] INLR 211, that no real risk of refoulement from Germany breaching Art 3, was only case-specific

R v Rezvi
2002 EWHL 1 TLR 24/01/02 (2002) 1 All ER 801

24 January 2002

House of Lords

Lord Slynn ,  Lord Browne-Wilkinson ,  Lord Hope ,  Lord Hutton ,  Lord Steyn

Appeal

Crime - sentencing

Art 6(2),  Protocol 1 Article 1

s 77AA Criminal Justice Act 1988

Confiscation orders against profits of crime under CJA 1988: 1) do not engage Art 6(2), as subject is not ‘charged with criminal offence’ (rather, orders are part of sentencing process); 2) compatible with Art 6(1), as constitute a proportionate response, given sufficient defence safeguards, to the legitimate aim of preventing those convicted from profiting from crime

R v Benjafield
2002 EWHL 2 TLR 24/01/02 (2002) 2 WLR 235

24 January 2002

House of Lords

Lord Steyn ,  Lord Browne-Wilkinson ,  Lord Hope ,  Lord Hutton ,  Lord Slynn

Appeal

Crime - sentencing

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

s 4 Drug Trafficking Act 1994

1) Following Kansal, ECHR rights held not engaged, as on facts, plea and confiscation of assets order under challenged occurred prior to 2 Oct 2000; 2) confiscation under s 4 DTA 1994 did not breach Art 6: i) subject is not ‘charged with criminal offence’; ii) orders are proportionate response with respect to Art 6(1), given sufficient defence safeguards, to legitimate aim of preventing convicted drug traffickers from profiting from crime

Chief Constable of the Greater Manchester Police v McNally
2002 EWCA Civ 14 TLR 6/03/02

24 January 2002

Court of Appeal

Auld ,  Slade LJ ,  Walker LJ

Appeal by defendant police force against interlocutory ruling in malicious prosecution trial.

Civil procedure

Article 2,  Article 5,  Article 6,  Article 8

relating to disclosure of information relating to police informants.

HRA 1998 added force to change in common law allowing for expansion of exceptions to general rule that prevented disclosure of informant’s identity in course of malicious prosecution trial, and requires court to balance public interest in non-disclosure and rights of informant, with claimant’s rights to fair trial and compensation for violation of Art 5(5) on case specific basis

Sheffield City Council v Smart; Central Sutherland Housing Company Limited v Wilson
2002 EWCA Civ 04 TLR 20/02/02

25 January 2002

Court of Appeal

Laws LJ ,  Kay LJ ,  Thorpe LJ

appeal from decisions of county courts

Housing

Article 14,  Article 6,  Article 8,  Protocol 1 Article 1

Part VII Housing Act 1996

Limited role of court in scheme under HA 1996 for termination of non-secure tenancies does not violate Arts 8 or 6: legislative policy choice that housing authority, not court, determines proportionality of eviction must be deferred to

R v Lea, Shatwell & Attorney General’s Reference No. 82 of 2000
2002 EWCA Crim 215 TLR 28/02/02

28 January 2002

Court of Appeal

Aitkens LJ ,  Pitchford LJ ,  Woolf LCJ

appeal against conviction

Crime

Article 6

Refusal of court to allow public funding for QC to represent defendant, where Crown is so represented, does not breach principle of equality of arms

Allan v Clibbery
2002 EWCA Civ 45 TLR 05/02/02 (2001) 1 All ER 865

30 January 2002

Court of Appeal

Butler-Sloss P ,  Keene LJ ,  Thorpe LJ

Appeal by A against refusal by Munby J to continue injunctions restraining C from disclosing information about A.

Family

Art 6(1),  Article 10,  Article 8

s 12 Administration of Justice Act 1960 Matrimonial and Family Proceedings Act 1984

r 3.9 Family Proceedings Rules 1991

Where ancillary relief proceedings not involving children were held in chambers, publication of details of de facto relationship by one party did not breach Art 8 rights of other party: publishing party’s Art 10 rights prevailed

Moran v Director of Public Prosecutions
2002 EWHC Admin 89 TLR 06/02/02

30 January 2002

High Court (Queen's Bench)

Maurice Kay J

case stated by Justices

Crime - procedure

Article 6

lack of reasons for finding case to answer in summary trial.

No requirement under Art 6 on justices to give reasons for determination of a case to answer against defendant at end of prosecution case

R (1) Assisted Reproduction & Gynaecology Centre & (2) H) v Human Fertilisation and Embryology Authority
2002 EWCA Civ 20 LTL 31/1/2002 ILR 6/2/2002 TLR 21/3/2002

31 January 2002

Court of Appeal

Clarke LJ ,  Wall LJ

Renewed application for permission to apply

Health - fertility rights

Article 12,  Article 8

Human Fertilisation & Embryology Act 1990

1) Decision not to grant permission to apply correct where HFE Authority, as body to whom relevant responsibility delegated by Parliament, has carefully assessed claimant’s request for advice and reached plainly rational conclusion; 2) this position not altered by R v Home Secretary ex parte Daly [2001] UKHL 26

R v Johnstone and others
2002 EWCA Crim 194 TLR 12/03/02

31 January 2002

Court of Appeal

Burton J ,  Pumfrey J ,  Tuckey LJ

Appeal against conviction

Crime

Art 6(2)

s 95(5) Trade Marks Act 1994

The onus on a defendant, under s 95(5) TMA 1994, to show that his belief on reasonable grounds that the use of a sign does not infringe of trademark is evidential, and not persuasive (or ‘legal’), and thus complies with Art 6(2)

R (Cooper) v Governor of HM Prison Risley and Secretary of State for the Home Department
2002 EWHC Admin 125

01 February 2002

High Court (Administrative)

Mitchell J

Judicial Review

Prisoners

Art 6(1),  Art 6(3)

Prison Standing Order 16 para. 7b.

Right of access to court

Prisoner’s Art 6(1) right of access to a court not breached by denying him unlimited access to Internet for legal research

English & another v Hastie Publishing Ltd & another
[2002] All ER (D) 11 (Feb)

01 February 2002

High Court (QBD)

Gray J

Defamation

Defamation,  Freedom of expression

Article 10

Libel (qualified privilege)

i) Appropriate recognition of the importance of journalists’ Art 10 rights was built into the approach to qualified privilege established by Reynolds v Times Newspapers Limited (2001) AC 127; ii) domestic law’s "repetition rule" does not offend Art 10; iii) on facts, impugned publication did not attract qualified privilege under Reynolds

R v Lang; R v Deadman
2002 EWCA Crim 298

05 February 2002

Court of Appeal

Pitchford J ,  Aikens J ,  Kennedy LJ

Criminal appeal against conviction

Crime - evidence

Art 6(2)

s 28 Misuse of Drugs Act 1971

On facts trial judge erroneously directed jury with respect to evidential (as opposed to legal) burden on accused, arising from s 28 defence; R v Lambert [2001] 3 WLR 306 applied

Dhima v Immigration Appeal Tribunal
2002 EWHC Admin 80

06 February 2002

High Court (QBD)

Auld LJ ,  Ouseley J

Judicial review (substantive hearing)

Asylum

Article 3

s65 Immigration & Asylum Act 1999

The sufficiency of protection test for grant of asylum under the Refugee Convention, as interpreted in Horvath v Secretary of State for the Home Department ([2001] AC 489) can be equated to a 'real risk' applicable to Art 3 ECHR on human rights appeals under s65 IAA 1999

Marcic v Thames Water Utilities Ltd
2002 EWCA Civ 65 LTL 5/2/2002 TLR 14/2/2002 (2002) 2 All ER 55

07 February 2002

Court of Appeal

Aldous LJ ,  Lord Phillips MR ,  Ward LJ

Appeal

Tort

Article 8

Tort

i) Repeat household flooding constituted interference with Art 8(1), but damages awarded by High Court under s8 HRA 1998 to be ousted by damages Court of Appeal held otherwise available under common law; ii) (obiter) liability in damages under HRA 1998 might accrue even where there was no liability in hte common law on the basis that flood prevention by therespondent was in the circumstances not "reasonably practicable"

R v Henrick
2002 EWCA Crim 308

07 February 2002

Court of Appeal

Keene LJ ,  Mitchell J ,  Stephens J

Appeal against conviction

Crime - independent and impartial tribunal

Article 6

Test of bias

Applying test of judicial bias as formulated in In Re Medicaments ([2001] 1 WLR 700) and approved by the House of Lords in Magill v Porter ([2002] 2 WLR 37) no risk of bias shown on facts

In the Matter of the Equitable Life Assurance Society

08 February 2002

High Court (Ch D)

Lloyd J

Petition under s425 Companies Act 1985

Property

Protocol 1 Article 1

s425 Companies Act 1985

In binding creditors to a compromise agreed by 3/4 of voting creditors and sanctioned by the court, s 425 CA 1985 and its case law were compatible with Art 1 Prot 1

R v Mason, Wood, McClelland and Tierney
2002 EWCA Crim 385

13 February 2002

Court of Appeal

Woolf LCJ ,  Keith J ,  Mitchell J

Appeal against conviction

Crime - evidence

Art 6(1),  Article 5,  Article 6,  Article 8

ss 76 & 78 Police and Criminal Evidence Act 1984

Surveillance of suspects in custody not 'in accordance with law' and thus in breach of Art 8; however, it did not follow that the admission of such evidence breached of right to fair trial under Art 6

R(C & others) v Brent, Kensington, Chelsea & Westminster Mental Health NHS Trust
2002 All ER (D) 164 Feb

13 February 2002

High Court (Admin)

Newman J

Judicial review (substantive hearing)

Health,  Mental health

Article 8

Where long-stay mental health patients were moved from residential accommodation at one location to another (without, on the facts, any "home for life" promise), in striking a balance under Art 8, considerable weight attached to the patients’ clinical needs as an objective justifying interference with private life

Theakston v MGN Limited
2002 EWHC (QB) 137

14 February 2002

High Court (Queen's Bench Division)

Ouseley J

Application for interim injunction to restrain publication

Privacy

Article 10,  Article 8

tort of breach of confidence

1) Effect of Art 8 and s 12(4) HRA is not to create a new tort of breach of privacy, but rather, in view of s 6(1) duty on courts, to inform the content the existing tort of breach of confidence; 2) no duty of confidence arises per se from acts of sexual intimacy

R (Denson) v Child Support Agency
2002 EWHC Admin 154

14 February 2002

High Court (QBD)

Munby J

Judicial review (substantive hearing)

Family,  Property

Article 8,  Protocol 1 Article 1

Child Support Act 1991

1) CSA 1991’s statutory scheme, and the Agency's administration of it, compatible with Arts 8 and Art 1 Prot 1; ii) Art 8 not engaged by CSA's decision to apply for a liability order under ss 33 & 34 CSA 1991 where interference alleged arose only by virtue of order's effect on applicant's state of mind and, potentially, his reputation