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 v (1) The Advertising Standards Authority Ltd (2) The Independent Reviewer of the Advertising Standards Authority Ltd ex parte (1) Matthias Rath B.V. (2) Matthias Rath Ltd
LTL 13/12/2000 TLR 10/1/2001 (2001) HRLR 22

06 December 2000

High Court (Queen's Bench Division, Administrative Court)

Turner J

Judicial review (application for permission)

Freedom of expression

Article 10

Publication of adjudication pursuant British Code of Advertising and Sales Promotion

Limitations on expression in British Code of Advertising and Sales Promotion ‘prescribed by law’ for the purposes of Art 10(2)

A-G v Wheen
LTL 7/12/2000 extempore TLR 23/1/2001 ILR 29/1/2001 (2001) IRLR 91

07 December 2000

Court of Appeal

Keene LJ ,  Mummery LJ ,  Nourse LJ

Appeal against restriction of proceedings order

Civil procedure - vexatious litigation

Article 6

s33 Employment Tribunal Act 1996

s33 order does not breach Art. 6(1) because access to Employment Tribunal not prohibited, but provided for as long as permission obtained from Employment Appeals Tribunal

X v Secretary of State for the Home Department
TLR 09/01/01 (2001) 1 WLR 740

07 December 2000

Court of Appeal

Schiemann LJ ,  Sir Swinton Thomas ,  Tuckey LJ

Judicial review (appeal)

Immigration,  Mental health

Article 3

Immigration Act 1971; s86 Mental Health Act 1983

i) MHA 1983 does not (a) restrict Home Secretary’s powers under 1971 Act to remove from England or (b) require MHRT’s prior approval for removal; ii) whether Art 3 is breached by removal to country with lower medical standards will turn on facts of individual cases

R v Craven
TLR 2/2/2001 (2001) Crim LR 464 (2001) 2 CAR 181

08 December 2000

Court of Appeal

Latham LJ ,  Ebsworth J ,  Sullivan J

Appeal against conviction pursuant referral by Criminal Cases Review Commission

Crime - evidence

Article 6

R v Togher (TLR 21.11.00) R v Francom (CA 31.07.00) Condron v UK (2000) 8 BHRC 290 Edwards v UK (1992) 15 EHRR 417

CA entitled to consider whether material which had been withheld from defence could have affected jury’s verdict in light of all the facts now known to court, including fresh DNA evidence provided by the prosecution and not available at the original trial

R v Secretary of State for the Home Department ex parte Mahmood
TLR 09/01/2000 (2001) I WLR (2001) UKHRR 307 (2001) HRLR 14

08 December 2000

Court of Appeal

Laws LJ ,  Lord Phillips MR ,  May LJ

Judicial review (appeal)

Immigration

Article 8

Standard of judicial review

i) In general, post-2 Oct 2000 executive action to implement pre-2 Oct 2000 decision will be legal if the decision was legal when taken, although courts to adopt a pragmatic approach to avoid perverse outcomes; ii) post- 2 Oct 2000 judicial review remains supervisory in nature so that court will not intervene if executive action in “discretionary area of judgement” subject to test of anxious scrutiny, and principles of necessity and proportionality

R v P and others
T.L.R. 19/12/2000

11 December 2000

House of Lords

Lord Hobhouse ,  Lord Browne-Wilkinson ,  Lord Cooke ,  Lord Goff ,  Lord Hutton

Interlocutory appeal against decision by CA

Crime - evidence

Article 6

Intercept of Communication Act 1985; s78 PACE 1984; admissibility of intercepts obtained abroad

Use in a UK prosecution of intercept evidence obtained in foreign state does not breach: (i)Art 8 because lawfully obtained in foreign state to assist in prosecuting offenders, not been used for other purpose nor kept longer than necessary (ii) Art 6 because defendants entitled to challenge intercept evidence and judge can exclude it under s78 PACE

R v Secretary of State for the Environment, Transport and the Regions ex parte Holding and Barnes Plc and others
13/12/2000 ILR 22/1/2001 TLR 24/1/2001 (2001) EGCS 5 (2001) 05 EG 170 (2001) UKHRR 270 (2001) HRLR 2

13 December 2000

High Court (Queen's Bench Division)

Harrison J ,  Tuckey LJ

Judicial review (substantive hearing)

Planning - independent and impartial tribunal

Article 6

ss 77, 78 and 79, Town and Country Planning Act 1990 Transport and Works Act 1992 Highways Act 1980 Acquisition of Land Act 1981

(1) Processes by which Environment Secretary calls in applications, appeals, and issues highway and compulsory purchase orders incompatible with Art 6(1) because i) not decided by independent and impartial tribunal and ii) the High Court’s review insufficient to remedy the breach; (2) But Environment Secretary does not act unlawfully because his acts covered by s.6(2) HRA; awaiting outcome on declaration of incompatibility

Murbarak v Murbarak
TLR 30/11/00 (2001) 1 FLR 698

14 December 2000

Court of Appeal

Thorpe LJ ,  Brooke LJ ,  Jacob J

Appeal against ancillary relief order

Civil procedure

Art 6(2),  Art 6(3)

Debtors Act 1869

Family Proceedings Rules 1991

Judgment summons proceedings (committal to prison for non-payment of judgment debt) are criminal for purposes Art. 6(2) and (3), so that defendant entitled to presumption of innocence; precise articulation of charge; adequate time to prepare defence; right to examine evidence

R v B (A-G’s Reference No 3 of 1999)
LTL 14/12/2000 TLR 15/12/2000 ILR 19/12/2000 (2001) 2 WLR 56 (2001) 1 All ER 577 (2001) Crim LR 394 (2001) 1 CAR 475 (2001) HRLR 16

14 December 2000

House of Lords

Lord Steyn ,  Lord Clyde ,  Lord Cooke ,  Lord Hobhouse ,  Lord Hutton

A-G’s reference on correct statutory interpretation

Crime - evidence

Article 6,  Article 8

ss64(3B) & 78 PACE 1984

No breach of Arts 6 and 8 in prosecution based on investigation founded on unlawfully retained evidence because there exists judge’s discretion under s78 PACE to exclude evidence that would render proceedings unfair

R v Forbes
TLR 19/12/00 (2001) 2 WLR 1 (2001) 1 All ER 686 (2001) Crim L.R. 649

14 December 2000

House of Lords

Lord Bingham ,  Lord Cooke ,  Lord Hoffman ,  Lord Hutton ,  Lord Steyn

Appeal against conviction

Crime - procedure

Article 6

PACE 1984 Code of Practice D

Case law relating to PACE Code of Practice D; particularly decision of Court of Appeal in R v Popat (1998) 2 Cr App R 208

Although Art 6 ECHR is absolute, subsidiary rights within it are not absolute, so always necessary to consider all facts of case in deciding if right to fair trial breached. If so concluded, conviction unsafe within section 2 Criminal Appeal Act 1968: Procurator Fiscal (Dunfermline) and another v. Brown (05.12.00), R v Togher, Doran and Parsons (09.11.00)

R (Home Secretary) v Mental Health Review Tribunal (MW and FO intervening)
TLR 20/2/2001 (2001) ACD 334 (2002) 63 BMLR 181

15 December 2000

High Court (Administrative Court)

Collins J

Judicial review (substantive hearing)

Mental health

Article 5

MHA 1983 ss72 & 73: Whether power to adjourn under MHA 1983 attaches only to MHRT's "official" functions 2) disapplication of s72(3) MHA 1983 in respect of restricted patients violates Art 5(4) ECHR

MHRT Rules 1983 SI 1983/942

As regards restricted patients under MHA 1983 1) MHRT has specific, limited powers and may adjourn only as required to ensure fairness or in exercise of those limited powers; and direction for transfer between hospitals is matter solely for Home Secretary, therefore no power in MHRT to adjourn to seek evidence relevant to a recommendation; 2) No breach Art 5(4), as domestic law remedies (judicial review, habeas corpus, damages) provide all necessary protection against unlawful detention of restricted patients

Ashworth Security Hospital v MGN Ltd
TLR 10/01/01; (2001) 1 WLR 515; (2001) 1 All ER 991

18 December 2000

Court of Appeal

Laws LJ ,  Lord Phillips MR ,  May LJ

Appeal against disclosure order

Civil procedure,  Confidence,  Freedom of expression

Article 10

s10 Contempt of Court Act 1981

“Norwich Pharmacal jurisdiction” to order disclosure against third parties

i) s10 CCA 1981 now to be constructed as intended to give effect to Art 10 ECHR; ii) applications for disclosure of press sources now to be determined in line with Goodwin v UK [1996] 22 EHRR 123

(1) Han & Yau (2) Martins & Martins (3) Morris v Customs and Excise Commissioners
(2001) B.V.C. 2163 (2001) S.T.I. 87 (V & D Tr)

19 December 2000

VADT

Stephen Oliver QC

Preliminary issue in appeals against civil evasion penalties

Taxation - VAT Tribunal procedure

Article 6

s60 VAT Act 1994 s8 Finance Act 1994

Civil evasion penalties are properly classified as criminal charges for the purpose of Art 6(1). Implications of their being so depend on circumstances of particular case

R v Home Secretary, ex parte Samaroo
LTL 5/1/2001

20 December 2000

High Court (Queen's Bench Division (Administrative Court))

Thomas J

Judicial review (substantive hearing)

Immigration,  Judicial review

Article 8

B v Home Secretary [2000] Imm AR 478; R v Home Secretary ex p Mahmood (TLR 09.01.00)

Reasoning of ex parte Mahmood preferred over that B v Home Secretary: (i) courts should not treat issue of proportionality as question of law; (ii) court’s task is to review Home Secretary’s discretionary area of judgement, by subjecting decision to intense and anxious scrutiny on objective basis to see whether he can reasonably conclude that interference a)necessary to achieve legitimate aim and b)proportionate

Brushett v Regina
(2001) Crim LR 471 LTL 17/1/2001

20 December 2000

Court of Appeal

Douglas Brown LJ ,  Otton LJ ,  Stephens LJ

Appeal against conviction and sentence

Crime - evidence (public interest immunity)

Article 6

On a flexible interpretation of the test in R v Reading Justices ex parte Berkshire County Council [1996] 1CAR 245 the common law did not deviate from ECHR public interest immunity principles in Rowe & Davis v UK; Fitt v UK; Jasper v UK

R v Davis
LTL 20/12/2000 TLR 20/12/2000

20 December 2000

Court of Appeal

Douglas Brown J ,  Stephens QC ,  Waller LJ

Appeal against conviction and sentence

Crime

Article 6

Abuse of process

No abuse of process or breach of Art 6 where prosecution allowed following discharge of juries in earlier trials resulting from either i) action or inaction of defence, or ii) judge’s ruling for which neither side to blame (in contrast to re-trials resulting from action or inaction of prosecution)

Holub and Holub v Secretary of State for the Home Department
LTL 20/12/2000 TLR 13/2/2001 (2001) ACD 31 (2001) ACD 184 (2001) 1 WLR 1359 (2001) HRLR 469

20 December 2000

Court of Appeal

Schiemann LJ ,  Sir Swinton Thomas ,  Tuckey LJ

Judicial review (appeal)

Education

Protocol 1 Article 2

Factors affecting Home Secretary’s refusal of exceptional leave to remain

Art 2 does not require Home Secretary to take view on whether there would be violation of child’s right to education if returned to country of origin; moreover right to education possibly not engaged where state exercises immigration control

B (a child)(By her Guardian Ad Litem the Official Solicitor) v (1) RP (2) W County Council (3) SB

20 December 2000

Court of Appeal

Hale LJ ,  Butler-Sloss P ,  Potter LJ

Appeal against adoption order

Family - adoption

Article 8

ss15(3) & 6 Adoption Act 1976; Children Act 1989

Adoption orders interfere with right to family life under Art 8; therefore required to be justified under terms of Art 8(2), including tests of necessity and proportionality

R v Benjafield, Leal, Rezvi & Milford
TLR 28/12/2000 LTL 4/1/2001 ILR 31/1/2001 (2001) Crim LR 245 (2001) Crim LR 330 (2001) 2 All ER 609 (2001) 2 CAR 87 (2001) 3 WLR 75 (2001) HRLR 478

21 December 2000

Court of Appeal

Woolf CJ ,  Collins J ,  Judge LJ

Appeals against confiscation orders

Crime - sentencing

Article 6,  Protocol 1 Article 1

Drug Trafficking Act 1994; Criminal Justice Act 1988

(i) With respect to appeals of decisions taken prior to 02.10.00, s3(1) HRA has retrospective effect if s22(4) and s7(1)(b) apply; (ii) confiscation procedure is subject to requirements of Arts 6(1) and (2) taken together; (iii) if properly applied, statutory provisions on confiscation orders do not breach Convention rights: crucial factor is application of Art 6 to particular facts

R(Johns & McLellan) v Bracknell Forest District Council (Secretary of State for Environment, Transport and the Regions intervening)
LTL 12/2/2001

21 December 2000

High Court (Queen's Bench Division)

Longmore J

Application for declaration of incompatibility under s4 HRA 1998

Housing

Article 14,  Article 6,  Article 8

Compatibility of Chapter 1, Part V Housing Act 1996 (optional introductory tenancy scheme for local authorities) with HRA 1998

Scheme and HA 1996 compatible with ECHR: i) Art 6 - council’s own review process and judicial review together comprise appeal to independent and impartial tribunal with “full jurisdiction”; ii) Art 8 - scheme’s interference with right to respect for home is legal, justified and proportionate (Art 14 unlikely to be engaged)

R (Sezek) v Secretary of State for the Home Department
LTL 25/5/2001 TLR 20/6/2001 2002 1 WLR 348

21 December 2000

High Court (Queen's Bench Division)

Ousely J

Judicial review (substantive hearing)

Immigration

Article 8

S3(5)(b) Immigration Act 1971

1) Under HRA 1998 Home Secretary retains decision as to ECHR rights but bears burden of proof as to violation upon review: ex p Mahmood; 2) Art 8(1) not violated in principle or on facts (deportation justified under Art 8(2) on grounds of applicant’s past criminal conviction and general objective of preventing crime); 3) no requirement that executive decision affecting Art 8 rights be “reasonably proximate” in time to its execution

R (C) v MHRT

21 December 2000

High Court (Queen's Bench Division)

Scott Baker J

Judicial review (substantive hearing)

Mental health

Article 5

Mental Health Act 1983 ss2 & 3

Although administrative convenience played no part in deciding what Art 5(4) required, it was necessary to consider time reasonably required to prepare adequately for hearing of the patient’s application, and the practical reality of admission under s3 MHA 1983, which differed from admission under s2 MHA 1983. Within the context of s3, a hearing no later than 8 weeks after admission for treatment did not violate Art 5(4) ECHR, since the need for a speedy hearing had to be balanced against the need for time for preparation for the hearing.

(1) Douglas (2) Zeta-Jones (3) Northern & Shell Plc v Hello! Ltd
TLR 16/01/2001; (2001) 2 WLR 992; (2001) 2 All ER 289; (2001) UKHRR 223

21 December 2000

Court of Appeal

Brooke LJ ,  Keene LJ ,  Sedley LJ

Application to discharge temporary injunction

Confidence,  Freedom of expression,  Privacy

Article 10,  Article 17,  Article 8,  Other Article

Article 1

ss2, 3, 6, 12 Human Rights Act 1998

breach of confidence; privacy; courts’ discretion to grant interlocutory relief

i) Post-HRA, common law recognises a qualified right to privacy; ii) UK courts obliged by HRA to ensure both procedural and substantive compliance with ECHR, so that common law to be interpreted so far as possible as ECHR-compatible, even in private law cases

Director-General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles Trade Association
(2001) 1 WLR 700; (2001) UKHRR 429

21 December 2000

Court of Appeal

Brooke LJ ,  Lord Phillips MR ,  Robert Walker LJ

Appeal against decision of Restrictive Practices Court

Civil procedure

Article 6

Common law test for bias of tribunal; independent and impartial tribunal

Test for bias in R v Gough (1993) AC 646 modified in light of ECHR, to take into account additionally a fair-minded observer’s view of the fairness of proceedings

S (Children)

22 December 2000

Court of Appeal

Thorpe LJ ,  Schiemann LJ

Appeal from County Court decision

Family

Art 6(1)

Children Act 1989

Having regard to parents' article 6 rights it would be wrong to refuse to allow instruction of expert.