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.

(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

(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

(1) Han & Yau (2) Martins & Martins (3) Morris v Customs and Excise Commissioners
2001 EWCA Civ 1040 TLR 3/8/2001 (2001) 4 All ER 687 (2001) HRLR 54 (2001) 1 WLR 2253 (2001) UKHRR 1341

03 July 2001

Court of Appeal

Potter LJ ,  Sir Martin Nourse LJ ,  Mance LJ

Appeal by Custom and Excise Commissioners on preliminary issue

Taxation

Article 6

Whether penalties imposed by s60(1) Value Added Tax Act 1994 and s8(1) of the Finance Act 1994 were criminal rather than civil under Art 6

Penalties were criminal (Sir Martin Nourse dissenting)

(1) HM Advocate (2) HM Advocate General for Scotland v McIntosh
LTL 6/2/2001 TLR 8/2/2001 ILR 16/2/2001 (2001) 2 All ER 638 (2001) 3 WLR 107 (2001) UKHRR 463 (2001) HRLR 20 (2001) 2 CAR 490 (2001) 2 CAR 27

02 May 2001

Privy Council

Lord Bingham ,  Lord Clyde ,  Lord Hoffmann ,  Lord Hope ,  Lord Hutton

Appeal from High Court of Justiciary (devolution issue)

Crime - sentencing

Article 6,  Protocol 1 Article 1

S3(2) Proceeds of Crime (Scotland) Act 1995

R v Benjafield & Others (TLR 28.12.00)

(i) Accused entitled to protection under Art 6(1), common law and language of statute in proceedings for confiscation order: in making assessment for confiscation order court must act with scrupulous fairness; (ii) Even if Art6(2) does apply to proceedings for confiscation order, if discretion properly exercised, confiscation procedure is a reasonable and proportionate response to a substantial public interest

(1) IR (2) JR v (1) RK (2) H (3) Local Authority 1; Local Authority 2 v G (By his Guardian Ad Litem the Official Solicitor)
(2001) 1 FLR 646

04 December 2000

High Court (Family Division)

Butler-Sloss P

Applications by two local authorities to the High Court for guidance in adoption proceedings

Family - adoption

Article 6,  Article 8

Children Act 1989 Adoption Act 1976

Adoption Rules 1989 Adoption Agencies Regulations

A local authority had a duty under s20 & s22 CA 1989, so far as reasonably practicable to ascertain both parents' wishes and give them due consideration in any decision about the child. In general, therefore, judges should give directions to inform natural fathers of adoption proceedings unless, on the particular facts of the case, it was inappropriate to do so. Both domestic statute and case law, and Convention jurisprudence suggested this conclusion.

(1) Procurator Fiscal, Dunfermline (2) HM Advocate General for Scotland v Brown
LTL 6/12/2000 TLR 6/12/2000 ILR 5/2/2001 (2001) 2 WLR 817 (2001) 2 All ER 97 (2001) UKHRR 333 (2001) HRLR 9

12 May 2000

Privy Council

Lord Bingham ,  Lord Clyde ,  Lord Hope ,  Lord Kirkwood ,  Lord Steyn

Appeal from High Court of Justiciary (devolution issue)

Crime - evidence

Article 6

s57(2) Scotland Act 1998 ss5 & 172(2)(a) Road Traffic Act 1988

Leading evidence obtained under compulsion pursuant s172(2)(a) RTA 1988 not incompatible with privilege against self-incrimination in Art 6(1) because s172 constitutes a proportionate response to high toll of deaths and injuries caused by misuse of motor vehicles

(1) W and B (Children) (2) W (Children)
TLR 07.06.01 (2001) LGR 561

23 May 2001

Court of Appeal

Hale P ,  Sedley LJ ,  Thorpe LJ

Appeals from full care orders

Family

Article 6,  Article 8

Children Act 1989

(i) CA read into CA 1989 court’s power to require local authority to report on care plan’s progress if Convention rights are or would be breached (ii) there could be a breach of Art 8 by interference with family life or by failure to take “adequate steps” to protect child or to provide child deprived of a life with “family of birth” with another family

A Health Authority v X & Others

10 May 2001

High Court (Family Division)

Munby J

Application for disclosure of confidential documents

Health - confidentiality

Article 8

Confidence

Disclosure of confidential documents (GP records and care proceedings documents) can be ordered if proportionate interference with Art 8 rights, and so long as disclosure subject to appropriate express conditions maintaining confidentiality (as regards public domain) and patient anonymity

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

A v (1) B (a company) (2) C (a female)
TLR 02/11/01

10 September 2001

High Court (Queen's Bench)

Jack J

Application to set aside order restraining publication

Privacy

Article 10,  Article 8

Common law breach of confidence; Press Complaints Commission Code of Practice

1) Common law breach of confidence is to be interpreted compatibly with ECHR, including right to privacy. 2) Public interest, approximating public benefit, is important factor in deciding whether to restrain publication

A-G v Times Newspapers Ltd & Others
LTL 25/1/2001 extempore ILR 30/1/2001 TLR 31/1/2001 (2001) 1 WLR 885 (2001) EMLR 19 (2001) EMLR 530

25 January 2001

Court of Appeal

Lord Phillips MR ,  Longmore LJ ,  Tuckey J

Appeal by A-G against order amending an undertaking

Freedom of expression

Article 10,  Protocol 1 Article 1

s12 HRA 1998;

AG v Guardian Newspapers (No 2) [1990] 1 AC 109

It is disproportionate to impose on newspaper the requirement to seek confirmation from A-G or court prior to publication that the facts that the newspaper intends to publish have been sufficiently brought into public domain so as to remove confidentiality from them

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

A-G’s Reference (No 3 of 2000)
(2001) 1 CAR(S) 92

17 May 2001

Court of Appeal

Curtis J ,  Hughes J ,  Kennedy LJ

A-G’s Reference on point of law

Crime - procedure

Article 6

Whether defence of entrapment available in domestic law; Loosely (CA 13 April 2001); Texeira de Castro v Portugal [1988] 28 EHRR 101

Following test complies with Art6: whether police officers do no more than afford accused with opportunity to offend, of which accused freely takes advantage in circumstances where it appears that he/she would have behaved similarly if opportunity had been offered by someone else, or whether they have persuaded him/her to commit offence of a kind which accused would otherwise not have committed

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.

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

Alliance & Leicester Plc v Slayford and another
LTL 12/10/2000 (2000) EGCS 113 TLR 19/12/2000

12 October 2000

Court of Appeal

GIbson LJ ,  Latham J ,  Mummery LJ

Appeal against order striking out amendment to statement of claim; application to set aside extension of time

Civil procedure

Article 6

Court’s regard for Art 6(1) in private law proceedings

(i) Court can be required via s6 HRA to respect rights of parties; (ii) delay did not disentitle the Bank from obtaining judgement on whole or part of arrears

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

Attorney General’s Reference (No. 2 of 2001) sub nom R v J
2001 EWCA Crim 1568 [2001] 1 WLR 1869

02 July 2001

Court of Appeal

Woolf LCJ ,  Leveson J ,  Wright J

Attorney-General’s reference under s 36 Criminal Justice Act 1972.

Crime - procedure

Art 6(1)

Delay in bringing criminal proceedings

In assessing delay as alleged breach of Art.6 (1): i) time runs from formal charge; ii) stay of proceedings is not appropriate remedy in the absence of prejudice; iii) the effect of delay on trial’s fairness must be considered from the point of view of both the defence and the prosecution

Attorney-General v (1) Steen & (2) Punch Ltd
2001 EWCA civ 403 TLR13/03/01 (2001) 2 WLR 1713

23 March 2001

Court of Appeal

Phillips MR ,  Longmore LJ ,  Simon Brown LJ

Appeal (against conviction)

Crime

Article 10

Common law of contempt of court

Widening scope of third party contempt jurisdiction so as to enable prosecution of publisher where no proof of damage to national security (from publication of former MI5 employee’s disclosures which were subject of injunction) would be i) disproportionate restriction on press freedom under Art. 10 and ii) inconsistent with court’s duty under s12(3) HRA 1998. Appeal allowed on basis of traditional legal principle - HRA confirmed that result.

Attorney-General v Ebert
LTL 5/10/2001

21 September 2001

High Court (QBD (Divisional Court))

Brooke LJ ,  Harrison J

Application for injunctive relief

Civil procedure - vexatious litigation

Article 6

Court’s inherent jurisdiction to regulate its process

Given i) every citizen's right of access to a court at common law and under Art 6 ECHR and ii)restrictions on that right implicit in English case law (Grepe v Loam; Ebert v Venvil) and ECtHR jurisprudence, it was court's duty in controlling its procedure to ensure nothing done disproportionately hindered or interfered with litigant's right of access.

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

Austin Hall Building Ltd v Buckland Securities Ltd

11 April 2001

High Court (Technology and Construction Court)

Bowsher J

Application for summary judgment

Construction

Article 6

S108 Housing Grants, Construction and Regeneration Act 1996

i) Adjudicator under s108 not a “public authority” under HRA 1998, because adjudication outside ECHR definition of “legal proceedings”, and not decisive of civil rights and obligations (Bryan v UK (1995) 21 EHRR 342), so that adjudicator not a “court or tribunal” under ss6 & 21 HRA 1998; ii) if s6 did apply, no breach Art 6(1) requirements of publicity or, on the facts, of determination “within a reasonable time,” therefore adjudication secure under s6(2)(a) HRA

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

Beckham and Beckham v MGN Ltd.

28 June 2001

High Court (Queen's Bench Division)

Eady J

Application to continue interim injunction

Media

Article 8

law of confidence

Cross-undertaking sought by MGN (in the course of proceedings to prevent the publication of photographs by MGN) to prevent B’s sale of photographs to another publisher not allowed as unjustifiable restriction on B’s right to privacy under Art 8 and freedom of contract

Bellinger v Bellinger
2001 EWCA Civ 1140 (2002) 2 WLR 411

17 July 2001

Court of Appeal

Thorpe LJ ,  Butler-Sloss, P ,  Robert Walker LJ

Appeal

Family

Article 12,  Article 8

S 11(c) Matrimonial Causes Act 1973

1) Marriage of a male-born transsexual woman to a man was invalid, as gender assigned at birth was unchallengeable (applying test for determination of sex for purpose of marriage in Corbett v Corbett (1970) 2 All ER 33) 2) however, in light of Rees v UK, Cossey v UK, Sheffield & Horsham v UK, although it was for Parliament, not the courts, to legislate in this area, change to this rule was required sooner rather than later