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					                        Human Rights and Civil Liberties




                                 By Steve Foster



                                  Longman 2003




              Supplement for period December 2002-May 2008



This supplement chronicles the main legal developments from the period December 2002
to May 2008 that relate to the substantive law covered in the text. Some of these are
included in the book’s preface but also included are those changes between March 2003
and December 2007.

This supplement is an update of previous supplements appearing on the Pearson website
and consequently there is no need to access or download previous documents. The most
recent changes and developments (since the last update in December 2007) are
highlighted in bold.

A new edition of this book will be published in July 2008. In the meantime, if you
have any comments about the current text and supplement, or if you require any
further information on the law and the updates, please contact me on
s.foster@coventry.ac.uk




                                          1
Chapter 1 – Enforcement

Note the adoption of an Optional Protocol to the UN Convention Against Torture (June
2006) – establishing a sub-committee to the existing CAT (in order to undertake regular
visits) and requiring state parties to establish domestic mechanisms to undertake visits
and monitor conditions.

Chapters 2 & 3 - The European Convention on Human Rights

General

On 13 May 2004, Protocol No 14 of the Convention was adopted by the Committee of
Ministers of the Council of Europe endorsed various proposals for the reform of the
European Convention to deal with the backlog of cases pending before the Court. Under
the Protocol, in certain cases a single judge can decide on admissibility, three men
committees can decide on admissibility in the case of repeated violations or ‘clone’ cases
and cases can be declared inadmissible where the applicant has not suffered a serious
disadvantage, where respect for human rights does not require the court to examine the
merits of the case, but exempting cases where the case has not been duly considered by
a domestic tribunal. Further, a new procedure will enable the committee of ministers to
bring proceedings before the Court where a state refuses to comply with the judgment
and European Court judges will be appointed for a single, nine-year term.

Protocol No13, abolishing the death penalty in all circumstances, came into force on July
1 2003. This has been ratified by the United Kingdom, and has been included in the
Human Rights Act 1998 by virtue of The Human Rights Act 1998 (Amendment) Order
2004 (SI 2004/1574). Note also the decision of the European Court in Ocalan v Turkey,
below.

Further, on 30 June 2004, the European Court of Human Rights refused to grant interim
measures sought by Saddam Hussein, who alleged that his handing over to the new Iraqi
authorities to face trial violated the United Kingdom’s obligations under the Convention
not to condemn anyone to the death penalty or to inhuman or degrading treatment or
punishment. At the admissibility hearing (14 March 2006) the European Court held that
Article 1 of the Convention was not engaged with respect to any Member States of the
Convention and the arrest and trial of the applicant. The applicant’s argument that the
states in question had de facto control over his detention because they were in coalition
with the US who had arranged his trial was dismissed by the Court

The Parliamentary Council of Europe has recommended the creation of the post of Public
Prosecutor and that the Commissioner for Human rights is allowed to intervene and
bring cases before the European Court in cases of gross violations of human rights in




                                            2
cases where the European Convention is inapplicable. (See Leech, 'Human Rights
''Hotspots'' and the European Court (2004) 154 NLJ 183)

See Lord Woolf’ Review of the Working Methods of the European Court of Human
Rights (December 2005 – available on echr.coe.int)

The figures for the European Court caseload from 2005 are available on the Court’s
website. They show that the UK was found in violation of the Convention on 18 occasions
in that year.

In Bosphorous Airways v Ireland, 30 June 2005 the European Court of Human Rights
held that a state would be justified in violating an applicant's Convention rights in an
effort to comply with relevant EC law, as long as the EC law provided equal protection of
such rights. There would be a presumption that lawful EC Law would be compatible with
the Convention, unless the law was clearly deficient in protecting such rights. In this
case the taking of the applicants’ aircraft under EC law was compatible with the public
interest so as to justify any interference with the applicant's property rights.

The European Union member states have expressed a unanimous intention to proceed
to accession to the European Convention on Human Rights (Lisbon Agreement). The
Member states will co-ordinate with the President of the European Court of Human
Rights to implement the decision.

The European Court delivered its first advisory opinion under article 47 of the
Convention in February 2008. Asked by the Committee of Ministers to consider the
compatibility of the gender balance with respect to judges it held that it was
incompatible with the Convention for a list of candidates for election to be rejected
on the sole ground that there was no woman on the list.

The Grand Chamber is to hear a claim against a number of member states, attempting to
make them accountable for deaths in Kosovo during military operations: Berhami v
France; Saramati v France, Germany and Norway.




Article 2

In Ocalan v Turkey (2003) 37 EHRR 10, the Court laid down some fundamental principles
relating to the legality of the death penalty. On the facts the Court held that the
applicant did not face a real risk of facing the death penalty. However, more generally it
considered the legality of the death sentence during peacetime. The Court held that it
could not be excluded, in the light of recent developments that had taken place in this
area that the member states had agreed through their practice to modify the second
sentence of art 2(1) in so far as it permitted capital punishment in peacetime. Against
this background t could be argued that the death penalty could be regarded as inhuman
and degrading treatment contrary to article 3. However, the Court stressed that it was
not necessary to reach any firm conclusion on this point since in the present case it
would run counter to the Convention, even if article 2 were to be construed as still




                                            3
permitting the death penalty, to implement the penalty after an unfair trial. The case
has now been referred to the Grand Chamber of the European Court of Human Rights.

On 12 May 2005 the Grand Chamber delivered its judgment in this case. It held that the
second sentence in article 2 of the Convention might now have been amended by state
practice and that accordingly states would now regard it as an unacceptable form of
punishment in peacetime. However, as not every state had signed protocol No 13
prevented the Court from concluding that the death penalty was inhuman and degrading
and thus automatically in violation of article 3. In any case, such a finding was not
necessary as in this case the Court found that the death penalty was threatened after
the failure to provide a fair trial and that that constituted a breach of article 3 as the
applicant had been subjected to the threat of being unlawfully executed.

See also GB v Bulgaria and Iorgov v Bulgaria, dealt with under Article 3, below.

In Bader v Sweden, 8 November 2005 the European Court found a violation of articles 2
and 3 when the applicant had been denied asylum and faced the death penalty having
been found guilty of murder in his absence. The government had not received any
assurance from the Syrian authorities that his case would be re-opened or that he would
not face the death penalty. The applicant had been subjected to a real risk that he
would be executed in violation of article 2 and, given the unfairness of the proceedings
and the anxiety surrounding such, article 3.

On 8 June 2004, the Grand Chamber of the European Court gave its judgement in the
case of Vo v France (Application No. 53924/00). The applicant complained that the
domestic law’s refusal to classify the intentional killing of her unborn baby as homicide
contravened the duty to protect life under article 2 of the Convention. The Grand
Chamber considered whether an unborn child is a person under article 2 and decided
that on the proper interpretation of article 2 an unborn child was not a person under
article 3. In the majority’s view, there was no consensus at the European level on the
nature and status of the embryo/foetus and it was neither desirable nor possible to
answer in the abstract the question whether the unborn child was a person for the
purposes of article 2. In any case, even if the unborn child was a person under article2,
the state had fulfilled its positive obligation to protect life, as the child was not
deprived of all protection under French law. That protection did not require the
provision of a specific criminal law remedy. Three judges gave dissenting opinions. (See
the European Commission’s decision in Paton v United Kingdom); the case is noted by
Foster, C in (2004) SJ 957. See also Tysiac v Poland, dealt with under article 8, below.

In Kilinc v Turkey, 9 June 2005, the European Court found a violation of article 2 when
the applicant had committed suicide whilst carrying out military service. The applicant
had long-standing psychiatric problems and was deemed fit for military service. The
next day he shot himself in the head with a rifle. The Court found that there was
inadequate guidance given to the authorities to decide whether a person was fit for
service and if so which tasks they should be allocated. Accordingly, the authorities had
not done everything in their power to prevent the risk of suicide and were in violation of
article 2.

See Huohanainen v Finland, March 13 2007 – no violation of article 2 when fatal force
used on an individual with metal health problems during an armed siege.


                                            4
See also Ramsahai v Netherlands, 15 May 2007.

In Finucane v United Kingdom, The Times, 27 July 2003, the Court held that there had
been a violation of article 2 when the authorities had conducted an inadequate
investigation into the circumstances of Patrick Finucane, a solicitor living in Northern
Ireland who was shot dead by two masked men who broke into his home. There had been
a lack of independence in the police inquiry and the inquest had not investigated the
possibility of collusion with the police authorities. The first two inquiries lacked
publicity and the final one was conducted 10 years after the event. In addition the DPP
was not required to give reasons for his decision not to prosecute those suspected, and
judicial review was not available to challenge his decisions. This case adds to those
imposing a procedural duty on the sate to conduct proper investigations into deaths that
may be in violation of article 2, and raises the question of the compatibility of immunity
with respect to decisions of the DPP - See Pretty v DPP)

In Bubbins v United Kingdom (Application No 50196/99), the European Court declared
admissible a claim under article 2 when police had shot dead the applicant’s brother
mistakenly believing that he was a burglar. The case raises issues as to effective
remedies and the amount of force legitimately used for the prevention of crime and
protection of others – see McCann v UK. On 17 March 2005, the European Court held
that there had been no violation of article 2, either of its substantive or procedural
obligations. The Court found that it had not been established that there had been a
failure to plan and organise the operation in such a way as to minimise to the greatest
extent possible any risk to the right of life. Also, the Court held that the four-day
Coroner's inquest into the death, with a finding of lawful death, satisfied the procedural
duty under article 2. However, the Court held that there had been a violation of article
13 of the Convention because had the applicants taken and succeeded in a civil action
they would not have been able to recover compensation for non-pecuniary loss, and
accordingly it would have been unlikely that they would have received legal aid. For
commentary on this case, see Martin (2006) 69 MLR 242

See also Hacket v United Kingdom Application No 34698/04, where the European Court
held that the procedural obligations under article 2 had been complied with on the facts.

In McBride v United Kingdom, Application No 1396/06, the European Court declared
inadmissible the claim that the UK were in violation of article 2 when the armed forces
retained two soldiers who had been found guilty of the murder of the applicant’s son. In
the circumstances the investigation etc had been in compliance with article 2 and there
was no separate breach simply because the soldiers had not been discharged.

In Demir and others v Turkey, decision of the European Court of Human Rights 13
January 2005, it was held that there had been a violation of article 2 when a prisoner
had died from head injuries when being transferred to another prison after a
confrontation between prisoners and guards in the prison. The Court found that the
force used by the guards was more than was absolutely necessary. There had also been a
breach of article 2 in the procedural respect as an effective investigation into the
events had not taken place – it had taken more than 5 years to instigate criminal
proceedings against the guards and those proceedings were still pending. Accordingly,
there had also been a violation of article 3.


                                            5
In Tais v France, 1 June 2006 the European Court found a violation of article 2 when the
applicant had been found dead in a police cell in a pool of his own blood and excrement
having been beaten with police batons the previous evening. The Court held that the
state had failed to provide a satisfactory explanation for his death and also found a
violation of the duty to conduct a proper investigation into the death.

See also Trubnikov v Russia, judgment of the European Court 6 July 2005, dealt with
under Prisoners’ Rights, below

In Younger v United Kingdom (Decision of 7 January 2003, Application No 57420/00),
the European Court declared inadmissible a claim by the father of a prisoner who had
committed suicide whilst in prison. The Court held that although the authorities had
departed from safety procedures, the applicant's so was not a suicide risk so as to
engage the state's liability under article 2 of the Convention. This follows the rationale
of the Court of appeal decision in Orange v Chief Constable of West Yorkshire.



Right to Life and the Human Rights Act

The House of Lords granted leave to appeal against the Court of Appeal decision in R
(Amin) v Secretary of State for the Home Department [2002] 3 WLR 505 on the
question of whether there is a duty to conduct a full judicial inquiry into a death in
custody, and on 16 October delivered judgment overruling the decision of the Court of
Appeal. The House of Lords found that the investigation into the death of a prisoner at
the hands of a racist cellmate did not fulfil the requirements of article 2 of the
Convention, and that a full independent public investigation had to be held to comply with
article 2. Applying the principles laid down by the European Court in Edwards v United
Kingdom, the House held that there had been no inquest to discharge the, State's
investigative duty, the police investigation had raised many unanswered questions and did
not discharge that duty, the Prison Service's investigation did not enjoy independence
and had been conducted in private, not being published. Finally, the family had not been
able to play an effective part in the inquiry. The subsequent public inquiry disclosed 186
failings contributing to the murder, identifying 19 individuals and making a number of
recommendations to the government

The decision in Amin was followed by the Court of Appeal in R (Davies) v HM Deputy
Coroner for Birmingham [2003] EWCA (Civ) 1739, where the Court ordered that a new
inquest into a prisoner's death in prison take place in order to establish whether
systemic neglect had been a cause of death. The Court of Appeal noted that the law was
in an unsettled state and that the present coronial system was currently an inadequate
vehicle for the procedural obligations imposed by article 2 of the European Convention.
In order for article 2 to be satisfied there had to be a full and effective inquiry into
death at the coroner's inquest if this was realistically the only opportunity for the state
to perform its procedural obligation. In the present case the inquest did not canvass the
issue of systemic neglect and therefore did not comply with article 2 or the ruling in
Amin.

In R (Middleton) v Somerset Coroner , The Times, 12 March 2004, the House of Lords
held that the state’s procedural obligation under article 2 required an inquest to give an


                                             6
expression of the jury’s conclusion on the central factual issues surrounding the death.
Thus, although the finding could not implicate criminal or civil liability, in deciding how a
person had died the jury must indicate not only by what means the person died, but also
by what means and in what circumstances. In this case the inquest had not indicated the
jury’s findings on the relevant factual matters and had thus had not, initially, complied
with article 2. However, the applicants had eventually been provided with those findings
and the inquest in that case had been fail in all other respects. On the same day, in R
(Sacker) v West Yorkshire Coroner, The Times 12 March 2004, the House of Lords
applied the principle in Middleton to order a new inquest into the death of a remand
prisoner. See also R (Anderson) V HM Coroner FOR Inner North London [2004] EWHC
2729 (Admin)

In R (Smith) v Oxfordshire Assistant Deputy Governor [2008] EWHC 694 (Admin) it
was held that a soldier who had died from hyperthermia whilst carrying out duties
in Iraq was subject to the jurisdiction of the Human Rights Act 1998 and thus
could rely on the procedural obligation under article 2 of the European Convention.
It was held that the circumstances of the soldier’s death gave rise to concerns
whether the army had provided an adequate system to protect his life and thus the
coroner should have considered in what circumstances he died ( Middleton applied).
Further, it was not necessary that the coroner should find that there was an
arguable case that article 2 had been breached as the duty in question in this case
was a procedural one. The court also held that the presumption was in favour of
full disclosure and that in this case such disclosure should be made subject to a
duty on the recipients not to use it for purposes other than in connection with the
inquest. Finally, the finding of the coroner that there had been a failure to act did
not fall foul of the prohibition on determining civil liability in such inquiries; the
coroner was simply stating the evidence of witnesses.

In R (Hurst) v HM Coroner for Northern London District [2007] 2 726, the House of
Lords held that the Human Rights Act 1998 and article 2 of the Convention did not have
retrospective effect so as to apply to deaths occurring before the Act came into
effect.

In R (Cash) v HM Coroner for Northamptonshire [2007] EWHC 1534 it was held that for
the purposes of article 2 a coroner should leave to a jury all possible verdicts and that
on the facts he should have explained why he had not left to it the possibility of
returning a verdict of unlawful killing. Although the police’s evidence of the event was
satisfactory and convincing, it could not be said that there was no evidence on which a
jury could conclude that the force used against a detainee was unreasonable.

In R (D) v Secretary of State for the Home Department [2005] EWHC 728 (Admin) the
High Court held that an internal inquiry and a proposed investigation by the Prisons and
Probations Ombudsman into D’s failed suicide attempt did not meet the requirements of
articles 2 and 3 of the Convention. A mandatory order was made compelling the Home
Secretary to conduct a full and effective public investigation into the incident. The first
investigation was not independent or effective as reports had been lost and the
proposed inquiry lacked the characteristics laid down in cases such as Jordan and Amin -
it was not to be held in public, it lacked effective means of compelling witnesses and
failed to give the prisoner’s representatives the opportunity to make a meaningful input.
See now the decision of the Court of Appeal [2006] EWCA Civ 143 where it was held


                                              7
that although any inquiry had to be held in public to be compliant with article 2, it was
not necessary that the prisoner in question did not have to have the right to cross
examine witnesses. Moreover, although the inquiry had to be held in public, article 2 did
not require the whole process had to be in public; simply that the Chairman would make
the evidence and written submissions public and take oral evidence in public.

The Home Secretary refused a public inquiry into the death of Joseph Scholes, who
committed suicide in Stoke Heat young offenders' institute – judicial review proceedings
have been launched (See The Guardian, December 1 2005). In Scholes v Secretary of
State for the Home Department [2006] EWCA Civ 1343, the Court of Appeal held that
there had been no breach of article 2 when a full public inquiry had not been established
to examine the sentencing and subsequent suicide of a 16-year old boy at a young
offender institution. The judge had not violated article 2 by imposing a two year
detention – he had not been obliged to conduct an enquiry as to where and in what
circumstances the boy would be detained, and had requested that information as to his
vulnerability should be passed on to the authorities. The Court also held that the inquest
in this case had been thorough and was in compliance with article 2; a full public inquiry
was not required in every case, and although an inquest could not always look fully at
policy issues, in this case the court had done that and the coroner had forwarded its
findings to the secretary. The Secretary had responded to these issues and the
combination of that response and the inquiry met the demands of article 2.

In R (JL) V Home Secretary, 1 November 2006 the High Court held that the simple fact
of an unexpected death or life-threatening injury in custody would usually cross the
threshold requiring an investigation in to that death that would satisfy the requirements
of article 2. The judge pointed to several factors which indicated that there may have
been a breach of procedure thus requiring an investigation.

In R (S) v Home Secretary, 16 January 2006 it was held that the normal method of
investigation into a death in custody was an inquest and that it was not always incumbent
to set up a public inquiry where the inquest did not touch on broad issues of government
funding or policy.

In R (Bloggs) v Secretary of State for the Home Department [2003] EWCA Civ 686, the
Court of Appeal confirmed the decision of the High Court that the decision of the
Prison Service to remove the prisoner from a protected witness unit in prison and return
him to mainstream prison system was not in violation of the prisoner’s right to respect
for life under article 2 of the European Convention.

In R (Shelley) v Home Secretary [2005] EWCA Civ 1810, the Court of Appeal refused
prisoners permission to apply for review of the prison service’s policy to provide
disinfectant tablets to clean needles used by prisoners, instead of allowing a needle
exchange system.

On December 14 2004 the House of Lord Joint Committee on Human Rights published a
report on deaths in custody (HL Paper No.15-I (Session2004/05)), making
recommendations to establish a cross-departmental task force to monitor the topic, to
review good practice standards and to publish information and make recommendations to
Government.




                                            8
In R (A and B) v HM Coroner for Inner South District of Greater London, The Times,
July 12 2004 it was held that the refusal by a coroner’s Court to grant anonymity to two
police officers in respect of an investigation into an unlawful death should be quashed as
being contrary to article 2 of the European Convention. On the facts the officers faced
a real risk to their lives if anonymity was lifted and accordingly the Coroner’s decision
was not one that was open to him. This case followed the principles laid down in R v Lord
Saville of Newdigate, dealt with in chapters 4 and 5 of the main text. The decision was
upheld in Bennett v Commissioner of Police for the Metropolis and another [2004] EWCA
1439, where the Court of Appeal held that there had to be reasonable grounds of fear
of the witness’s safety before an order of anonymity could be granted and to set the
test as one or real and immediate risk would be setting the standard too high. But see
Re Officer L, below

See also Mitchell v Glasgow CC [2005[ SLT 1100, applying Osman v UK.

See also Cameron and others v Network Rail Ltd [2006] EWHC 1133 (QB) it was held
that the fact that damages caused by alleged negligence were limited to funeral
expenses did not mean that the state were in violation of article 2 by failing to provide
an effective remedy for unlawful deaths. There was a civil remedy and no gross
negligence or manslaughter was alleged. It was within the state’s margin of appreciation
to limit the availability of financial claims to financially dependant relatives.

In An NHS Trust v MB, 15 March 2006 the High Court ruled that an 18-month old baby
boy who was critically ill should not be allowed to die. The Trust had argued that to keep
him alive would be intolerable and cruel, but the judge ruled that withdrawing ventilation
would not be in the interests of the child. The judge stated that when the child begins
to suffer pain it may be in his best interests to withdraw that facility.

In R (Bennett) v Inner South London Coroner , 3 February 2006, the High Court
confirmed that the test of reasonable force in self-defence under English law was the
substantially the same as the necessity test under article 2(2) of the European
Convention (McCann v United Kingdom applied). Thus a coroner’s direction that a jury
could return a verdict of lawful death if they believed the police officer’s use of force
was reasonably necessary in all the circumstances was both lawful and consistent with
article 2. Upheld on appeal (The Times, August 13 2007.

In R (Da Silva) v DPP, 14 December 2006 the High Court held that the decision of the
DPP not to prosecute the officers involved in the killing of Mr Da Silva (a Brazilian
citizen on the underground – mistaking him to be a terrorist) was taken lawfully and was
a decision that was reasonably open to him; accordingly it would not be in violation of
article 2. (Noted by Roders, ‘Revising Stockwell’ (2007) NLJ 286.

In R (Mullane) v West Berks Safer Communities Partnership, 31 July 2006 it was held
that a person could not challenge the defendant’s decision to hold a domestic homicide
review to investigate a death after failing to challenge the coroner’s previous decision to
hold a normal inquest into the death. The claimant should have challenged the earlier
decision using article 2. In any case the court felt that the review was consistent with
article 2.




                                             9
In R (Rogers) v Swindon NHS Primary Care Trust [2006] EWHC 171 (QB) it was held
that it was not unlawful for the Trust to refuse to provide a drug to breast cancer
sufferers, unless there were exceptional circumstances. The policy was not irrational
and there were varied policies up and down the country. It was held that article 2 was
not engaged as the Secretary had not ordered that the drug be available – article 2 was
only engaged when the state had promised treatment to the general public (Nitecki v
Poland). Neither had article 3 been violated, as the threshold of article 3 in cases of
failure to provide treatment was particularly high and in this case the threat to the
applicant’s health was not immediate.

In R (Takoushis) v HM Coroner for Inner North London and others, The Times, 8
December 2005 it was held that there had not been a full and fair inquest into why a
mentally ill person had committed suicide after leaving the emergency department of a
hospital. The coroner had not considered all the relevant evidence before concluding
that there had been no evidence of negligence so as to warrant a jury. Where a person
died as a result of possible medical negligence in a NHS hospital there had to be a
system that provided for an effective and practical investigation into the facts,
although not necessarily in the form of a state-initiated investigation, as required for
deaths in custody.

In Savage v South Essex Partnership NHS Foundation Trust, The Times, February 16
2007 it was confirmed that the relevant test for establishing a substantive breach of
article 2 with respect to a person detained under mental health legislation was whether
there was at least gross negligence of a kind sufficient to sustain a charge of
manslaughter. (Takhousis applied). An appeal to the Court of Appeal was allowed: The
Times, January 9 2008. The test was whether the authorities knew or ought to
have known of the existence of a real and immediate risk to the life of the patient
from self harm.

In Van Colle v Chief Constable of Hertfordshire [2006] EWHC 360 (QB) it was held that
that there had been a violation of articles 2 and 8 when the defendant had taken
inadequate steps to safeguard the life and private and family life of a prosecution
witness (G) from attacks by suspects in a forthcoming trial. The murdered witness was
in a special category of person worthy of protection under article 2 and there was a real
and immediate risk which the police officer was aware of ands had taken inadequate
steps to address that risk (the officer was not aware of the witness protection scheme
and had not responded to a number of threats and incidents). It was also held that when
claiming damages under the HRA it was not necessary for the claimant to prove that the
‘but for test’ in causation had been satisfied: it was sufficient that protective measures
were open to the officer, and that such measures had a real prospect of altering the
outcome and avoiding the death. On the evidence it was more likely than not that the
death would have been avoided. The court awarded £15,000 for G’s distress suffered
before his death and £35,000 for the distress suffered by his mother.

In Smith v Chief Constable of Sussex [2008] EWCA Civ 39 it was held that it was
not permissible to make a distinction between an informer and a witness in deciding
whether the police had a positive duty at common law and under article 2 to
protect a person’s life. There was a point at which police officers, once alerted,
could not escape liability for an attack by one person on another and S’s claim that




                                            10
the police should have arrested his partner after she had repeatedly threatened to
kill him was not doomed to failure and should not have been struck out.

In Re Officer L, The Times, August 1 2007 the House of Lords held that the test for
deciding whether a witness was entitled to anonymity was whether the risk of injury or
death would be materially increased if evidence was to be given without anonymity. Only
if that question was answered in the affirmative did the question whether that
increased risk would amount to a real an immediate risk to life arise.

In Huohvanainen v Finland, 13 March 2007, the European Court held that there had been
no violation of article 2 when the applicant’s brother had been shot dead by the police.
Both the planning of the operation in which he was killed and the unintended lethal use
of force by the officers at the scene, resulted in force that was no more than
absolutely necessary in the circumstances.

See also R (Gentle) v Prime Minister and others [2006] EWCA Civ 1078, where the Court
of Appeal gave permission to relatives of soldiers killed in Iraq to apply for judicial
review of the government's refusal to hold a public inquiry into the circumstances
leading to the invasion of Iraq. The possible engagement of article 2 made the matter
appropriate for review. Appeal pending before the House of Lords. On April 9 2008
the House of Lords held that article 2 of the Convention did not impose an
obligation on the state to take reasonable steps to satisfy itself of the legality of
another country under international law. The procedural duty to hold an
investigation into a death was parasitic on the existence of a substantive right
under article 2, and in this case the procedural duty so claimed did not arise from
a substantive breach of article 2. The issue of the legality of war belonged to the
area of relations between states: The Times, April 10 2008.

Clauses 64 and 65 of the Counter Terrorism Bill 2008 allows the secretary of state
to certify the contents of an inquest as sensitive and to appoint a special coroner
for such investigations, with no jury.

Article 3

In E and Others v United Kingdom, (2003) 37 EHRR 31, the European Court, applying the
principles in Z v United Kingdom, found the government in violation of articles 3 and 13
of the Convention when a local authority had failed to provide the applicants from sexual
abuse by their stepfather. On 29 July 2003 a friendly settlement was reached in ZW v
United Kingdom and the government agreed to pay £77,000 in full and final settlement
of all claims and expenses of the applicant, who had complained regarding the abuse she
had received whilst placed in foster care as a child. However, in DP and JC v United
Kingdom (2003) 36 EHRR 14, it was held that there was no violation of article 3 (or of
article 8) when the applicants complained that they had been subjected to sexual abuse
perpetrated by their stepfather and where the social services had refused to act. In
the Court’s opinion it had not been shown that the local authority should have been
aware of the sexual abuse inflicted by the stepfather such as to give rise to a positive
obligation to protect them from that abuse. The Court did, however, find a violation of
article 13 of the Convention because the applicants did not have available to them an
effective domestic procedure of inquiry for establishing the facts and shedding light on
the conduct reasonably to be expected from the social services. In the Court’s view,


                                           11
where the right to be protected against ill-treatment in breach of article 3 was at
stake, and where an allegation was made that the authorities had failed to protect
persons from such acts, the victims should have access to a mechanism for establishing
any liability of state officials or bodies for acts or omissions involving a breach of those
rights. Finally, the Court held that there had been no violation of article 6 simply
because one of the applicant’s claims for negligence had been struck out by the domestic
courts. Article 6 did not guarantee any particular content for civil rights and obligations
in the substantive law of a contracting state. To engage article 6 it was not enough that
non-existence of a particular claim under domestic law could be described as having the
same effect as immunity in the sense that it did not enable the applicant to sue for a
particular category of harm.

In MC v Bulgaria, decision of the European Court December 4 2003, it was held that the
applicant’s Convention rights under articles 3 and 8 had been violated when the state
had failed to implement and apply sufficiently protective rape laws. In this case the
applicant had alleged that she had been raped, but the men were acquitted because in
that case there had been no signs of force or physical resistance by the applicant. The
Court held that such a requirement gave too little protection to the applicant and was
inconsistent with the development of the law of rape in other European countries.

In GB v Bulgaria and Iorgov v Bulgaria, decision of the European Court 11 March 2004, it
was held that the applicants had not been subjected to the death row phenomenon when
sentenced to death a t a time when the death penalty had been suspended under
domestic law. Although the applicants would have been subjected to some initial fear and
anxiety, this would have passed with time and was not comparable to the death row
phenomenon so as to violate article 3. However, the Court did find a violation of article 3
with respect to their conditions of detention. Although the Court held that a restricted
regime whereby contact with relatives and other prisoners was limited was not invariably
in violation of article 3, here the regime had been perpetrated on the applicants for a
long period of time (6-8years) without any real security reason. Further, one applicant
had received inadequate medical supervision which exacerbated the regime and his
feelings of anguish etc

In Nevmerzhitsky v Ukraine, decision of the European Court 5 April 2005, it was held
that the force-feeing of a prisoner by the use of a mouth-widener and using hand cuffs
when it had not been shown that such treatment was medically necessary, amounted to
treatment of a severe character and thus constituted torture under article 3 of the
European Convention. See further under Prisoners Rights, below

In Dalan v Turkey, 9 June 2005, the European Court found a violation of article 3 when
the applicant complained of ill treatment at the hands of police authorities after arrest.
The bruising on the applicant’s body was inconsistent with the use of proportionate
force. In addition, the failure of the authorities to identify the suspected officers and
to gather relevant witness evidence, resulting in the rejection of her claim in the
domestic courts, constituted a violation of article 13.

In Fedotov v Russia (Application No 5140/02) the Court found a violation of article 3
when the applicant had been detained and questioned in a police cell for 22 hours
without access to food or water and given no access to the toilet. These conditions were
exacerbated by the unlawfulness of the detention.


                                             12
See also Mikhheyeve v Russia (26 January 2006) where the Court made a finding of
torture with respect to ill treatment in a police cell (Selmouni v France applied)

See also Henaf v France, decision of the European Court 27 November 2003, dealt with
under Prisoners’ Rights, below.

In N v Secretary of State for the Home Department, The Times 9 May 2005, the House
of Lords held that the deportation of an asylum seeking Ugandan citizen suffering from
AIDS/HIV to Uganda, was not in breach of article 3 even though access to medical
treatment and facilities was problematic. The House of Lords held that exceptional
circumstances were required to apply the decision in D v United Kingdom and thus
prevent removal. The test was whether the applicant’s medical condition had reached
such a critical state that there were compelling humanitarian grounds for not removing
him to a place which lacked the medical and social services which he would need to
prevent acute suffering. Article 3 could not be interpreted so as to require contracting
states to admit and treat AIDS sufferers from all over the world for the rest of their
lives or to oblige contracting states to give an extended right to remain to would be
immigrants who had received medical treatment while their asylum applications were
being considered. (See Palmer, AIDS, expulsion and article 3 of the ECHR [2005] EHRLR
533). N v United Kingdom to be heard by the European Court shortly.

See also ZT V Home Secretary [2005] EWCA Civ 1421 on the application of the test in
N.

In R (Wellington) v Home Secretary [2007] EWHC 1106 it was held that a life sentence
without the possibility of parole or remission was not by itself a violation of article 3.



In R (Tozlukaya) v Secretary of State for the Home Dept [2006] EWCA Civ 379, the
Court of Appeal held that the Home Secretary had not erred in refusing a claim for
asylum simply because one of the applicants was in greater danger of committing suicide
if she were deported from the UK to Germany. There were safeguards to reduce that
risk during deportation and when she arrived in Germany and accordingly on the facts
there were insufficient grounds to believe that the applicant would have been subject to
inhuman or degrading treatment. The Court confirmed that the application of article 3
did not depend on any actual or notional breach of the Convention by the receiving state.

In R v Altham, 25 January 2006, the Court of Appeal held that a defendant could not
rely on article 3 as a defence to possessing cannabis because it relieved him form pain.
The state's liability was not engaged as it had done nothing to subject him to such pain
and suffering; he had taken it willingly and to impose a duty on the state alleviate his
pain would enable him to undertake unlawful activities without medical intervention.

In N v Finland, 26 July 2005 the European Court held that there had been a violation of
article 3 when the state intended to deport the applicant back to the DRC (formerly
Zaire). The applicant had left the country 7 years earlier and feared persecution
because he was an informant for the former President. Despite the lapse of time and
improved situation in the country there was still a real risk of recrimination bearing in
mind his particular involvement with the former government.


                                            13
In Cahuas v Spain, 10 August 2006 the European Court found that there had been no
violation of article 3 when the applicant had been deported to Peru to face terrorist
charges. Spain had received assurances that he would not face the death penalty or a
life sentence and Peru were parties to international human rights treaties. The failure
to comply with the European Court’s interim measure (not to deport) did not create a
violation of article 3 even though it was in breach of article 34.

In Nnyanzi v United Kingdom, 8 April 2008 the European Court held that there had
been no violation of article 3 (or 8) when the applicant asserted that her
deportation back to Uganda would result in ill treatment and persecution on grounds
of her father’s political beliefs. In the Court’s view there was insufficient evidence
that she would fact treatment in breach of article 3. Although her father had been
arrested for his political activities and she had been questioned and arrested
briefly on one occasion, there was no evidence of ill treatment and her lack of
political activity did not subject her to any enhanced risk.

The European Court is to rule on the question of deportation of terrorist suspects and
whether the rule in Chahal should be relaxed in such cases: Ramy v Netherlands
(Application No 25424/05). In the meantime, in Saadi v Italy, decision of the
European Court 28 February 2008 it was held that there would be a violation of
article 3 if the applicant, who was suspected of international terrorism, was
deported by Italy to Tunisia as part of ‘urgent measures to combat international
terrorism.’ The European Court found that there was a real risk of him being
subjected to ill treatment in breach of article 3. And that the considerable
difficulties facing states with respect to terrorist violence did not call into question
the absolute nature of article 3. It was not possible to weigh the risk that a
person might be subjected to ill-treatment against his dangerousness to the
community if not sent back. Further, the argument that the risk had to be
established by solid evidence where the individual was a threat to national security
was not consistent with article 3 and its absolute nature. The test was whether
there were substantial grounds for believing that there was a real risk and in this
case there was strong evidence that those (like Saadi) found guilty of terrorist
offences had been subjected to torture and that the authorities had failed to
investigate relevant allegations of such.

See also J v Home Secretary [2005] EWCA Civ 629 on the appropriate test of assessing
the risk and fear of persecution.

See also the decision of the House of Lords in A v Home Secretary (No 2), on the
admissibility of evidence gained by torture, discussed under the Human Rights Act
below.

In Ulke v Turkey, 24 January 2006 it was held that article 3 had been violated when the
applicant had been repeatedly sentenced to prison for refusing to carry out military
service and to wear an army uniform. The Court held that imprisonment for 701 days for
such refusal constituted a breach of article 3, especially as the sanctions were
persistent and possibly unlawful.




                                           14
Article 4

In Siliadin v France, 26 July 2005, the European Court held that there had been a
violation of article 4 of the Convention when the applicant had been used as an unpaid
help for four years. The Court held that this did not amount to slavery because although
she had lost her autonomy there was insufficient evidence that her ‘employers’ had
exercised a genuine right of ownership over her. However, the Court found that she had
been held in servitude; she was as an unofficial immigrant vulnerable and isolated and
entirely dependant on her employers for all assistance. The Court also held that the
failure of domestic law to create a specific criminal offence against slavery and the
failure to secure a criminal conviction against her abusers for wrongfully using the
services of a dependent person, meant that the state were in violation of their positive
duty to ensure that individuals were not subject to treatment in violation of article 4.
(Noted by Cullen ‘Positive Obligations under Article 4 ECHR (2006) HRLR 585).

Article 5

In Easterbrook v United Kingdom, The Times, June 18 2003, the European Court held
that there had been a violation of article 6(1) when the applicant's discretionary life
sentence tariff had been fixed by the Home Secretary, In Hutchison and Reid v United
Kingdom (2003) 37 EHRR 9, the European Court held that there had been a violation of
article 5(4) when a patient’s release had been unreasonably delayed and the burden of
proof had been placed on the applicant to show that he should no longer be detained. For
details of these cases, and Wynne v United Kingdom, Hill v United Kingdom and Van
Bulow v United Kingdom, see below in Prisoners’ Rights

In HL v United Kingdom, decision of the European Court 5 October 2004, it was held
that there had been a violation of article 5(1) of the Convention when a person had been
detained in a mental hospital as an informal patient. The House of Lords had justified
the detention (R Bournewood Community and Mental Health NHS Trust, ex parte L
[1999] 1 AC 458) by reference to the common law doctrine of necessity, but the
European Court held that such a doctrine was too uncertain and arbitrary to be
prescribed by law for the purposes of article 5, It also found a violation of article 5(4)
because the applicant had no effective method of challenging that detention.

In Thompson v United Kingdom, The Times, June 24 2004, the European Court held that
there had been a violation of articles 5 and 6 of the Convention when the applicant had
been subjected to summary detention by his commanding officer before being tried in a
Magistrate’s Court. The Court found a violation of article 5(3) as the officer could not
be regarded as independent and impartial. Consequently he had been denied the right to
compensation for such a contravention, contrary to article 5(5), although the Court held
that the finding of the Court was in itself sufficient just satisfaction. Further, the
summary proceedings conducted by the Commanding Officer lacked impartiality and
were in violation of article 6, the officer being central to the prosecution and at the
same time the sole judge. Such defects could not be remedied by subsequent review
other than a first instance hearing complying with article 6. Finally, the refusal of legal
representation from the summary trial was in violation of article 6(3).

In Boyle v United Kingdom, 8 January 2008 it was held that a commanding officer
in the armed forces who had ordered the detention of a soldier pending his military


                                            15
trial was not sufficiently impartial to be authorised to exercise judicial power so
as to comply with article 5(3) of the European Convention.

NB – In R (Home Secretary) v Mental Health Review Tribunal [2004] EWHC 2194
(Admin) it was held that conditions imposed on a patient discharged from hospital that
would leave him supervised or escorted at all times was a deprivation of liberty under
article 5 of the Convention, even of the patient agreed to it. Similarly in R (G) v Mental
Health Review Tribunal and another [2004] EWHC 2193, it was held that a conditional
discharge under the Mental Health Act 1983 on condition that he remain at the hospital
he was already staying at amounted to a deprivation of liberty under article 5. Again,
such a violation would not be excused by consent. Both cases attempt to draw the
distinction between freedom and movement and deprivation of liberty within article 5 of
the Convention, Ashingdane v United Kingdom (1985) 7 EHRR 258 applied.

In Beets and others v United Kingdom, The Times, 10 March 2005, it was held that
there had been a violation of article 5 and 6 when poll tax defaulters were imprisoned.
In the Court’s view the detentions were unlawful because the magistrate’s had not
properly considered whether the applicants were wilful defaulters, Benham v United
Kingdom distinguished. Further, the denial of legal aid had resulted in a violation of
article 6(1) (c) of the Convention.

See Blackstock v United Kingdom, 21 June 2005, considered under Prisoners’ Rights,
below

In Kolanis v United Kingdom, 21 June 2005, the European Court held that there had
been no violation of article 5(1) when the applicant’s conditional release form a mental
hospital had not been effected, due to a lack of medical and psychiatric support
necessary for such supervised release. There was no absolute obligation on the state to
ensure such facilities and as her mental ill health was still in existence there had been
no violation of article 5(1). However, the Court found a violation of article 5(4) because
for over a year she had not been able to have her continued detention until her final
conditional discharge considered by a court. The Court also found a violation of article
5(5) in that respect.

In Saadi v United Kingdom, 11 July 2006 it was held that there had been no violation of
article 5(1) when the applicants, asylum seekers, had been detained in detention centres
pending deportation. The Court found that detention had been ordered as a necessary
and genuine part of the immigration process under article 5(1)(f) and was neither
arbitrary not excessive in length. This confirmed the compatibility of the domestic case
(ex parte Saadi), where the detention's legality was upheld.

In O v Harrow Crown Court [2006] UKHL 42 the House of Lords held that s.25 of the
Criminal Justice and Public Order Act 1994, was compatible with article 5(3) of the
European Convention.

In McKay v United Kingdom, 3 October 2006 the European Court held that there had
been no violation of article 5(3) when the applicant had been automatically denied bail
because his offence (robbery) was a scheduled offence under the Terrorism Act 2000.
In the Court’s view, although the magistrate was satisfied that the case had nothing to
do without terrorism, he had no option but to refuse bail. The fact that the magistrate


                                            16
had to decide whether there were reasonable grounds for the offence being committed,
and M exercised his right of appeal against refusal to the High Court the next day, who
ordered his release on bail, were satisfactory safeguards against arbitrary use of the
automatic denial of bail.

Article 6

Criminal charge

See Blake v United Kingdom (App No 68890/01 – writ issued by A-G for account of profits
was civil in nature and not a criminal charge, discussed under freedom of
expression.

Civil rights and obligations

In Holthan v Kelmanson [2006] EWHC 2588 (Ch) it was held that the administration of a
bankrupt’s estate did not determine the bankrupt’s civil rights and obligations so as to
engage article 6 of the European Convention. The bankrupt had no enforceable right
against the trustee in bankruptcy.

In Eskelinen v Finland (2007) 45 EHRR 1, it was held that a claim by police officers with
respect to the removal by the state of special allowances constituted a civil right within
article 6. (Noted in [2007] EHRLR 441)

Fair and impartial tribunal

In Tsfayo v United Kingdom, 14 November 2006 it was held that the Housing Benefit
and Council Tax Benefit Review Board was not an independent and impartial tribunal so
as to satisfy article 6. The Court drew a distinction between this case and cases such as
Bryan v United Kingdom and Barnes and Holding v UK. In those cases the issue to be
decided was primarily policy based and thus an element of partiality was acceptable and
could be rectified on judicial review. In this case however the tribunal was dealing with
pure questions of law and fact and the lack of independence from the council was
unacceptable and not rectified by the possibility of JR.

Fair Trials and Excessive Delays

In Mitchell v United Kingdom (2003) 36 EHRR 52, it was held that there had been a
violation of article 6 of the Convention when there had been an excessive delay in the
applicants' domestic civil proceedings. Again, in Obasa v United Kingdom, decision of the
European Court 16 January 2003, it was held that there had been a violation of article
6(1) in respect of the length of proceedings regarding the applicant’s discrimination
claim – a period of over 7 years from the instigation of the claim until the final decision
to refuel leave to appeal to the House of Lords.

In Mellors v United Kingdom, The Times, August 4 2003, it was held that there had been
a violation of article 6(1) with respect to the length of the applicant's criminal
proceedings. Although the Court held that a delay of 8 months between arrest and
conviction was not unreasonable, it held that the fact that the appeal proceedings took 3
years constituted a violation of article 6, which guarantees the right to a fair trial



                                            17
within a reasonable time. Also, in Eastaway v United Kingdom, decision of the European
Court 22 July 2004, it was held that there had been a violation of article 6 when the
applicant complained that receivership proceedings against him had taken eight years
and 11 months.

In King v United Kingdom (Application No 13881/02) the European Court found a
violation of article 6(1) when the applicant’s tax penalty proceedings lasted nearly 14
years. Similarly, in Massey v United Kingdom (Application No 14399/02) the Court found
a violation of article 6 when the criminal proceedings against the applicant for indecent
assault lasted nearly 5 years. See also Henworth v United Kingdom (Application No
515/02) – breach of article 6 caused by a 6-year trial for murder.

See also Yetkinsekerci v. the United Kingdom (20 October 2005; Application no.
71841/01) where there was a violation of article 6 when the applicant’s criminal appeal
took over three years.
Fair Trials and the withholding of evidence

In Dowsett v United Kingdom, The Times, 12 July 2003, the European Court held that
there had been a violation of article 6 when the applicant had been deprived of a fair
trial because the prosecution had failed, on grounds of public interest immunity, to
disclose all the material evidence in their possession. In such cases the Court stressed
that the information in question should come before the trial judge to rule on its
possible disclosure. Also, in Edwards and Lewis v United Kingdom, The Times, 29 July
2003, it was held that there had been a violation of article 6 when substantive evidence
was withheld from the trial on the grounds of public interest. The Court held that the
evidence was material to the question of whether the defendants had been unlawfully
entrapped by police agent provocateurs and thus should have been made available. The
Government appealed this decision to the Grand Chamber, but the decision was upheld on
27 October 2004 – the government no longer wishing to pursue the case.

See also Botmeh and Alami v United Kingdom, 7 June 2007 – no breach of article 6 when
information withheld from the defendants on grounds of public interest immunity. The
defendants had benefited from subsequent disclosure.

In Blake v United Kingdom, 26 September 2006 the European Court held that there had
been a violation of article 6 when proceedings to recover profits he had gained from
writing his memoirs, in breach of his duty of confidentiality, which had lasted nine and a
half years. He was awarded 5,000 Euros for the distress caused by the delay.

In Boyle v Criminal Cases Review Commission, 7 March 2007 it was held that even if a
prisoner could prove that there had been an unreasonable delay by the Commission in
referring his case to the Court of Appeal, it would not be appropriate to grant damages
under s.8 of the Human Rights Act.

See also Steel and Morris v United Kingdom, dealt with under Freedom of
Expression




                                            18
Fair Trials and Military Discipline

In Cooper v United Kingdom, The Times, January 12 2004, it was held that there had
been no violation of article 6 when the applicant had been found guilty of theft at a
court martial and sentenced to 56 days imprisonment. In the Court’s view there was no
ground to question the independence of the Air Force judge advocate as he was a
civilian, appointed by another civilian (the Lord Chancellor), and appointed to the court
martial by another civilian in the form of the Judge Advocate General.

However, in Grieves v United Kingdom, The Times, 12 January 2004, it was held that
there had been a violation of article 6 when the applicant had been found guilty of
malicious wounding by a Naval Court Martial and as a consequence sentenced to three
years and discharged from the service. In that case the Court noted that in naval
discipline the prosecuting authority could appoint a prosecutor for a court martial from
a list of uniformed naval barristers. Further, the post of Permanent President of Courts
Martials did not exist in naval discipline, and although the Royal Naval judge advocates
fulfilled the same central roles as the Air Force equivalents, they were serving naval
officers and appointed by naval officers. See also GW v United Kingdom and Le Petit v
United Kingdom, decisions of the European Court, 16 June 2004, where the European
Court followed its decision in Grieves and found a violation of article 6. The decision was
taken into account in n R v Dudley, 15 March 2005 it was held that a tribunal that was
presided over by a uniformed judge advocate involved a lack of impartiality and was thus
contrary to article 6.

See also Thompson v United Kingdom, The Times, 24 June 2004, dealt with under article
5, above.

In R v Stow [2005] EWCA Crim 1157, it was held that a naval court martial did not
possess the necessary safeguards to ensure the prosecuting authority’s independence
and impartiality; article 6 did not just insist on the independence and impartiality of the
decision-makers, such as judges, and the prosecuting authority was subject to too much
pressure form his superiors regarding the performance of his duties to be considered
impartial. Accordingly there was a violation of article 6 of the European Convention and
the prosecution for drunkenness and using insubordinate language was unsafe.

And see Whitfield v United Kingdom, decision of the European Court 12 April 2005 with
respect to the impartiality of disciplinary proceedings in Youth Offender Institutions.
See Prisoners’ Rights, below.

In R (Hasse) v Independent Adjudicator [2007] EWHC 3079 it was held that the
presentation of the prosecution case in a disciplinary adjudication by a prison
officer who may have been a witness to the alleged offence was not incompatible
with article 6 of the Convention. The court drew a distinction between the
requirements in military discipline (R v Stow) and prison discipline on grounds such
as the seriousness of the offence, the need for speed and the inquisitorial nature
of the proceedings.

In Martin v United Kingdom, 24 October 2006 it was held that there had been a
violation of article 6 when an 18-year old boy had been charged and convicted of murder
by a court martial board. He was tried under military law because he was a family



                                            19
member of a member of the armed forces. The Court held that the subjection of a
citizen to a military style tribunal procedure would in all but exceptional cases amount to
a violation of article 6. Further, the tribunal in this case lacked the independence and
impartiality required by article 6. However, the Court found that circumstances of the
trial did not reach the threshold necessary to find a breach of article 3 of the
Convention.

In Bell v UK, 16 January 2007 it was held that 7 day’s detention for using insubordinate
language to an officer constituted a criminal charge.



Fair Trials and self-incrimination

In Kansal v United Kingdom, The Times, 29 April 2004, it was held that the use at a
subsequent criminal trial of answers given under compulsion to the Official Receiver
under the s.291 of the Insolvency Act 1986 breached the guarantees under article 6 of
the Convention, even though the trial took place before the Convention was incorporated
into domestic law by the Human Rights Act 1998. The Court noted that the information
received from those answers played a significant part in the criminal trial against him
and consequently the applicant had been denied a fair trial: Saunders v United Kingdom
applied.

In Blake v United Kingdom, the European Court held that a statement of B’s criminal
guilt during a civil trial did not violate art 6(2) as no criminal proceeding were pending
against the applicant.

In Yassar Hussain v United Kingdom, 7 March 2006 the Court held that there had been
a violation of article 6(2) when the domestic judge in refusing the applicant’s costs
order after acquittal (caused by the prosecution witness being absent) intimated that
the applicant had been guilty as there was compelling evidence against the defendant.
Such a statement violated the applicant’s right of presumed innocence under article 6(2)

See O’Halloran and Francis v UK, The Times, 13 July 2007 – no violation of article 6
when defendants forced to identify themselves as the driver of the vehicle and
subsequently charged with road traffic offences. Requirement was a proportionate
response to public safety on the roads.

See Berger, Self-incrimination and the European Court of Human Rights [2007] EHRLR
514

Fair Trials and Young Persons

In SC v United Kingdom, The Times, 29 June 2004 it was held that there had been a
violation of article 6(1) of the Convention when a young person of 11 was tried in an adult
court and sentenced to two and a half year’s detention for attempted robbery. The
Court accepted evidence that given the boy’s low intellect hew as incapable of fully
understanding the proceedings and their consequences. Consequently the Court could not
conclude that the applicant was capable of participating effectively in his trial to the
extent required by article 6. In the Court’s view, where a decision was taken to deal with
a young person by means of criminal trial, it was essential that he or she should be tried


                                             20
in a specialist tribunal which was able to give full consideration to and make proper
allowance for his particular difficulties and to adapt its procedure accordingly.

Fair trials and Legal Representation

In Hooper v United Kingdom, The Times, November 19 2004, the European Court held
that there had been a violation of article 6(1) and (3)(c) when the applicant and his legal
representative had been denied the opportunity to address the magistrate before it had
imposed a binding over order on him. The applicant had been committed to prison On the
basis of that order and the European Court awarded 8,000 Euros as non-pecuniary loss.

In Edwards v United Kingdom (Application No 38260/97) the Court effected a friendly
settlement between the applicants and the government when the applicants had been
denied legal representation in proceedings for non payment of poll tax, which led to
their detention. The applicants received ex gratia payments of between 3 and 5,000
pounds. See also, Townsend v United Kingdom, The Times 27 January 2005, where a
friendly settlement was reached to compensate the application for a period of
imprisonment following conviction for poll tax debts, in which the applicant as denied
legal representation. The applicant was awarded 4,000 euros in expenses and 10,000
euros for non-pecuniary loss. See also Beet v United Kingdom, dealt with under article 5
above

See Blake v United Kingdom (App No 68890/01) – lack of legal aid and representation
not in breach of article 6 as applicant had been represented in part and he had divested
himself of funds, which could have been used for legal assistance.

In R (R) v Durham Constabulary, The Times, March 2005, the House of Lords held that
the giving of a warning to a boy of 15 about his admitted behaviour of indecent assaults
was not a criminal charge under article 6 of the Convention. Therefore, the protection
of article 6 did not apply to such a case.

Access to the Courts

In Roche v United Kingdom, decision of the Grand Chamber of the European Court 19
October 2005, it was held that there had been no violation of article 6 or 13 of the
ECHR when the applicant had been denied his right to sue for medical injuries suffered
whilst in the armed forces. Section 10 of the Crown Proceedings Act 1947 did not take
away the applicants ‘civil right’ to bring an action, but rather confirmed the existing law
that no such right existed. However, there had been a violation of article 8 in this case
because the applicant had been denied access to certain health and safety records that
would have allowed him to assess the risk of injury from such dangers.

In Brooks v MPC, The Times April 26 2005 the House of Lords held that the police did
not owe a duty of care to a victim or a witness when investigating a suspected crime. The
House of Lords followed the decision in Hill v Chief Constable of West Yorkshire, which
their Lordships believed was not inconsistent with article 6 of the ECHR – Z v United
Kingdom applied.

See also R (Kehoe) v Secretary of State for Work and Pensions [2005] UKHL 48 the
House of Lords held that there had been no violation of article 6 when domestic


                                            21
legislation did not give her a right to enforce the Child Support Agency’s duty to ensure
that her former husband paid maintenance, dealt with under the Human Rights Act,
below

See Kehoe v United Kingdom (Application No 02010/06) – application under article 6
declared admissible.

Double Jeopardy

In R v Young, 24 October 2005 it was held that there had been no violation of article 4
of Protocol No 4 when a man found guilty of wounding but acquitted of attempted
murder was subsequently convicted for murder after the victim's death.

Article 8

On 8 July, 2003 (The Times, 10 July 2003) the Grand Chamber of the European Court of
Human Rights allowed the government’s appeal against the decision in Hatton v United
Kingdom (2002) 34 EHRR 1. The Grand Chamber held that the authorities had achieved a
proper balance between the rights of the residents to peaceful enjoyment of their
homes and their family lives in allocating the number of night flights at Heathrow. Given
the fact that only a limited number of people were affected by the noise, and that their
house prices had not devalued, thus giving them the opportunity to move, there had not
been a disproportionate interference with their rights for the purpose of achieving
economic benefit. The Court did, however, find that there had been a violation of article
13 of the Convention, because the domestic judicial review proceedings could only
question the bare legality and rationality of the executive decisions.

In Connors v United Kingdom, decision of the European Court 27 May 2004, the
European Court found a violation of article 8 of the Convention when the applicant and
his family, who were gypsies, were evicted from council-owned property which had been
their base for 15 years. In the Court's opinion the eviction was not attended by
sufficient procedural safeguards, namely the requirement to establish proper
justification for the serious interference with their Convention rights. The Court noted
that the law and the state had placed considerable obstacles in the way of gypsies
pursuing an actively nomadic lifestyle while at the same time excluding from procedural
protection those who decided to tae up a more settled lifestyle. See also, Price v Leeds
City Council, The Times 17 March, 2005, dealt with under the Human Rights Act, below.

In Ernst and others v Belgium, see below under Article 10, the Court held that there had
been a violation of article 8 when commercial and private premises were searched for
the purpose of finding documents in respect of a prosecution for breach of confidence.
The Court held that the search warrants were drafted in wide terms – to seize any
document or object that might assist the investigation, and gave no information about
the investigation concerned, the premises to be searched or the objects to be seized.
Furthermore, the applicants were not informed of the reasons for the searches.

See also Sciacca v Italy, discussed under Privacy, below

In Fadeyeva v Russia, 9 June 2005, the European Court held that there had been a
violation of article 8 when the applicant had been subjected to pollution from a steel


                                            22
works that they lived near. The domestic courts refused her claim for resettlement to
another area, placing her on a general waiting list rather than giving her priority. The
European Court was satisfied that her health had been affected by living by the plant
and that the quality of her home life had been adversely affected. The Court also held
that the consideration of others on the waiting list, and the economic benefits of the
plant, constituted legitimate aims for not providing her with priority housing. The Court
held that although it would be going to far to state that the State or the polluting
enterprise were under an obligation to provide the applicant with free housing, in the
applicant’s case the State had failed to offer any effective solution to help her move
from the dangerous area. Despite the knowledge that the plant was operating in breach
of environmental standards, the State had offered no measures to reduce the pollution
to acceptable levels. Despite the wide margin available to States (see Hatton v UK), the
State had failed to strike a fair balance between the interests of the community and
the applicant’s enjoyment of her article 8 rights.

In Keegan v United Kingdom, 18 July 2006 it was held that there had been a breach of
article 8 when the police broke into the applicant's home in the mistaken belief that an
armed robber lived there. In the Court's view the domestic courts had dismissed their
claim be because no malice could be found despite there being evidence that the police
had not taken basic steps to verify the details before entering the building. The Court
also found a breach of article 13 because of the law's insistence that malice had to be
proven to found a case for damages, despite the distress caused to the applicants.

See also Grant v United Kingdom, 23 May 2006, dealt with under Privacy, below

 In Tysia v Poland, 20 March 2003 the European Court held that there had been a
violation of article 8 when the applicant had been denied an abortion on the grounds that
the threat to her eyesight by the pregnancy did not constitute grounds for an abortion
on therapeutic grounds. The Court found that the uncertainty of what amounted to an
abortion on such grounds and the lack of a procedure to resolve such issues in cases of
disagreement (including the lack of a legal remedy to enforce her right to an abortion)
created a situation of prolonged uncertainty for the applicant and thus amounted to a
breach of her right to private life.

Article 9

In Sahin v Turkey, 29 June 2004, the European Court held that there had been no
violation of article 9 when the applicant had been refused permission to wear a Muslim
headdress at University and was suspended from University for non-compliance. The ban
on religious wear was proportionate to the protection of the rights of others and of
public order, being necessary to preserve secularism in the country’s educational
institutions. See also (R) Begum v Denbigh High School, dealt with under the Human
Rights Act, below. The Begum case was heard in the House of Lords in February 2006
and the decision was delivered on March 22, 2006. The House of a Lords overturned the
Court of Appeal’s decision and held that the rules with respect to suitable school
uniform were not in breach of her Convention rights.

The decision in Sahin v Turkey was upheld on appeal to the Grand Chamber of the
European Court, on 11 November 2005. The Grand Chamber stressed that it was not for
the European Court to apply the principles of proportionality in a way that would make


                                            23
the notion of an institution’s ‘‘internal rules’’ devoid of purpose. Article 9 did not always
guarantee the right to behave in a manner governed by a religious belief and did not
confer on people who did so the right to disregard the rules that had proved to be
justified.

In 97 Members of the Gldani Congregation of Jehovah’s Witnesses v Georgia, 3 May
2007 the European Court held that there had been a violation of article 9 when the
state authorities had given inadequate protection against harassment of the applicants’
church and followers by a rival religious group. (Noted by Langlaude, [2007] EHRLR
583.)

Article 10

In Murphy v Ireland, decision of the European Court 10 July 2003, it was held that
there was no violation of article 10 when the Irish broadcasting authority refused to
allow the broadcast of the applicant's video dealing with the historical facts about
Christ and evidence of resurrection. The domestic law prohibited religious
advertisements and the applicant's legal challenge to that law was unsuccessful. The
European Court held that the restriction on the applicant's freedom of expression fell
within the state's margin of appreciation, particularly as the applicant's advertisement
was broadcast on satellite television. The interference was prescribed by law and
pursued the legitimate aims of preserving public order and the protection of the rights
of others. The authorities were entitled to have regard to the extreme sensitivity of
the question of broadcasting of religious advertising in Ireland and to the fact that
religion was a divisive issue in Northern Ireland.

In IA v Turkey, 13 September 2005 the European Court held that there had been no
violation of article 10 when the applicant had been fined for publishing a novel which,
inter alia, that the prophet Mohammad did not prohibit sexual intercourse with a dead
person or a living animal. In the Court’s view the book was not merely provocative and
shocking but constituted an abusive attack on the Prophet of Islam. Notwithstanding a
degree of tolerance of criticism of religious doctrine within Turkish Society, believers
could legitimately feel that certain passages of the book constituted an unwarranted
and offensive attack on them. In addition the penalties were not disproportionate - the
fine was small ($16) and the book had not been seized.

In Tatlav v Turkey, judgment of the European Court 2 May 2006 it was held that there
had been a violation of article 10 when the applicant had been prosecuted (one year’s
sentence substituted for a fine) when he published a book entitled the Reality of Islam,
which claimed that religion had the effect of legitimising social injustices in the name of
‘’God’s will’’. The Court held that although the book contained strong criticism of the
religion, it did not employ an offensive tone aimed at believers or an abusive attack
against sacred symbols. Further the book had been seized four years after its
publication and on the basis of an individual complaint. In addition the applicant was
faced with the threat of imprisonment, which would have a discouraging effect on
authors.

In Ernst and others v Belgium, judgment of the European Court 15 July 2003, it was held
that there had been a violation of articles 8 and 10 of the Convention when the Serious
Crimes Squad conducted searches of the offices of a newspaper and a radio and


                                              24
television company as well as the private premises of four journalists. The searches
were conducted in respect of the prosecution of members of the State legal service
following leaks in highly sensitive criminal cases. The Court held that although the
searches pursued a legitimate aim, given the scale of the searches, the interest in
maintaining freedom of the press, and the fact that the applicants were not provided
with an explanation as to why they were alleged to have been involved in the offences,
the interference was not proportionate or justified.

In Plon (Societe) v France, judgment of the European Court 18 May 2004, the European
Court held that there had been no violation of article 10 when the family of the late
President Mitterand had obtained an interim injunction shortly after his death stopping
the publication of a book about the President’s illness. However, the Court held that
article 10 was violated when that prohibition was continued in force after the informant
had been sanctioned by the courts, and once the information became public property.
Such injunctions, therefore, were not necessary in a democratic society.

In Chauvy and others v France, 29 June 2004, the European Court held that there had
been no violation of article 10 when a journalist, a publishing company and a newspaper
were made criminally liable for a libel made in a magazine to the effect that the leader
of the French Resistance may have been guilty of betrayal. Having regard to the
magnitude of the libel and the size of the fine, the interference was not
disproportionate to the aim of the protection of the rights and reputations of others.

See also Lomabardo v Malta, 24 April 2007

In Hrico v Slovakia, decision of the European Court 20 July 2004, it was held that there
had been a violation of article 10 when the applicant had been fined by the domestic
courts for damaging the reputation of a judge by alleging that the judge had pre-
decided a defamation case, describing the judgment and the proceedings as a legal
farce. The criticisms were made because the judge was standing for election for a
political party that had specific views on the matters that formed the basis of the
defamation action. The European Court held that given the public debate surrounding
the judge's involvement and potential apparent bias, the fine was a disproportionate
interference with the applicant's freedom of expression.

In Barasilier v France, 11 April 2006 it was held that there had been a violation of
article 10 when the applicant had been found liable for public defamation of a fellow
candidate for election and made to pay a notional one franc in damages. The applicant
had distributed leaflets in an unauthorised meeting, which accused the candidate of
rigging the election. The Court held that given that the comments were made in the
context of a general and heated debate and inquiry as to the legality of an election, they
should be treated more as value judgments made in the context of a discussion on a
matter of public interest. The interference was therefore disproportionate
notwithstanding the size of the award, which nevertheless could have a chilling effect
on free speech during these times.

In Stoll v Switzerland, 25 April 2005 the Court held that there had been a violation of
article 10 when the applicant had been fined for publishing official confidential
deliberations (an official document on holocaust compensation), drawn up by an
ambassador and received by the applicant in breach of confidence. The report was



                                            25
published along with an article criticising the ambassador. Although the Court
recognised the need to protect the work of the diplomatic corps, it was not persuaded
that the disclosure of the government’s strategy concerning the assets of holocaust
victims and Switzerland’s role in WW2 was capable of prejudicing interests that were so
precious that they outweighed the freedom of expression in a democratic society.
Furthermore, the language adopted by the paper – ‘’The ambassador in bathrobe and
climbing boots puts his foot in it again’’ – although sensational, was within the right of
the press to use exaggeration whilst conveying public interest information.

In Dammann v Switzerland, 25 April 2006 it was held that there had been a violation of
article 10 when a journalist had been prosecuted and fined for inciting a civil servant to
disclose an official secret. The journalist had asked an administrative assistant to tell
him whether a list of suspects of a recent robbery had any previous criminal convictions
and she had supplied that information in breach of official secrecy law. The Court held
that the robbery was a matter of great public interest and debate and that the
information in question could have been obtained by other means, such as consulting law
reports or press records. See also Guja v Moldova, 12 February 2008, where it was
held that the dismissal of the a civil servant from his post for disclosing 2 letters,
not marked as confidential, to the press alleging interference with criminal
proceedings by a politician was not necessary in a democratic society and thus was
in violation of article 10. The public interest in that information was so important
that it overrode the needs of confidentiality. The servant had acted in good faith
and for no personal interest and the punishment was not in all the circumstances
necessary and proportionate.



See also Raichinov v Bulgaria, 20 April 2004, the prosecution of a civil servant for
referring to the deputy prosecutor general as ‘not a clean person’ was a disproportionate
interference with article 10. The deputy was a high ranking public official and the
remark was made to a limited number of people.

See also von Hannover v Germany on the balance between freedom of expression and the
right to private life, dealt with under Freedom of expression, below

See also Wirtschafts-Trend v Austria No 3, 13 December 2005, where it was held that
the prosecution of the applicant under the Austrian Media Act was incompatible with
article 10 of the Convention. They had not exceeded the standards of responsible
journalism when describing a politician (who was fleeing the country following allegations
of fraud) and his wife as ‘’Bonnie and Clyde.’’ The wife had commented on the allegations
of fraud and should show more tolerance to the newspaper articles; the articles did not
suggest that she was involved in the fraud.

In Karhuvaara v Finland (Application No 53678/00) the European Court found a violation
of article 10 when the applicant had been sanctioned for infringement of privacy in
aggravated circumstances because the article referred to the drunken behaviour of the
husband of an MP. In the Court’s view, the protection given to MP’s by domestic law by
making any infringement of their privacy aggravating, was not proportionate and did not
allow a proper balance. The applicant had not acted in bad faith and the infringement to
the MP’s privacy was slight. The Court considered cases such as Lingens v Austria, as
well as the severity of the fine and damages, in finding a violation of article 10. Contrast


                                             26
A v United Kingdom and Zollman v United Kingdom, where the European Court held that
the blanket immunity of parliamentary privilege was justified in a democratic society and
thus not in violation of article 8 of the Convention.

In Selisto v Finland (Application No 56767/000 the Court held that there had been a
violation of article 10 when the applicant had been fined for publishing an article which
indirectly identified a surgeon and which suggested that he might have been drunk
during an operation. In the Court’s view the subject matter was one of overriding public
interest, the surgeon had not been identified directly, the surgeon had had a limited
right to respond and the journalist had not broken the rules of journalism or acted in
bad faith. The Court concluded that the applicant’s comments were not excessively one-
sided or provocative and that the domestic courts had exceeded their margin of
appreciation by establishing liability and fining the applicant.

In July and Sarl v France, 14 February 2008, it was held that the conviction of a
newspaper for defamation for reporting criticisms of a judicial inquiry into a death
was in breach of article 10. The criticisms were not those of the paper but of
others who had been discussing a matter of public concern and the use of phrases
such as a catalogue of errors and that the investigation was conducted in a bizzare
fashion did not display any animosity and were not manifestly insulting having regard
to the paper’s watchdog duty to report on a matter of existing public debate.

In Steel and Morris v United Kingdom, decision of the European Court of Human Rights,
15 February 2005, it was held that there had been a violation of article 10 when the
applicants had been denied a fair hearing and had had excessive damages awarded
against them, See further under Freedom of Expression

In Independent News and Media plc and another v Ireland , 16 June 2005, the European
Court held that there had been no violation of article 10 when damages of 300,000 Irish
pounds had been awarded against the applicants in libel proceedings. An article linked an
Irish politician to the illegal activities of a group of which the politician was the leader.
The award was upheld in the Irish Supreme Court and the applicants were forced to pay
the costs of the claimant. The European Court held that the essential question was
whether there were adequate safeguards existing in domestic law to ensure that a
disproportionate sum was not awarded. In the Court’s view, the Supreme Court had
taken into account relevant factors such as the seriousness of the libel and the effect
it had on the claimant’s reputation and political ambitions. Having regard to the measure
of appellate control over the awarded sum, and the margin of appreciation offered to
each State in this context, the Court was not satisfied that there had been ineffective
or inadequate safeguards against a disproportionate jury award.

See also Salov v Ukraine, European Court of Human Rights 6 September 2005, where it
was held that the imposition of a suspended sentence and the debarring of a lawyer for
disseminating incorrect information which might influence the views of the electorate.
The domestic courts had failed to take into account the public interest in the
dissemination and the penalty was held to be disproportionate.

In Gunduz v Turkey (2005) 41 EHRR 5, it was held that there had been a violation of
article 10 when the applicant had been fined for airing anti-democratic views and
suggesting that children born to couples who underwent a civil marriage were


                                             27
illegitimate. The Court found that as the views were part of a balanced public debate on
television they should be protected by article 10 and not excluded by article 17.
Contrast Norwood v United Kingdom, considered under Freedom of Assembly.

In Blake v United Kingdom the European Court held that there had been no violation of
article 10 when B had been subjected to an order to account for profits made from the
publication of his memoirs, which were in breach of his contractual duty of
confidentiality (application inadmissible). The decision of the House of Lords was
sufficiently foreseeable to be prescribed by law, and the order for profits was not
disproportionate. Even if the information that he published in 1990 was not confidential
at that time, there were strong reasons to sanction him for divulging that information
(Observer and Guardian v United Kingdom distinguished).

In Duzgoren v Turkey, 9 November 2006 the European Court found a violation of article
10 when the applicant had been imprisoned for 2 months and fined for distributing
leaflets outside a court inciting others to evade military service. The Court found that
the content of the leaflet was not inflammatory and given the area would not have
incited members of the armed forces. Also the penalty was disproportionate.

In Veraart v Netherlands, 30 November 2006 it was held that there had been a
violation of article 10 when a lawyer had been disciplined for making derogatory remarks
during a broadcast. The remarks were made about a therapist’s qualifications and
conduct after it had been established that the therapist had given a young woman
treatment that led her to make accusations of incest against three family members.
Given the seriousness of the accusations, and the fact that the disciplinary body did not
insist that the therapist reveal his qualifications, there had been an unjustified
interference with the lawyer’s free speech.

See Kunstler v Austria, 25 January 2007, where it was held that there had been a
violation of article 10 when the applicants’ painting was the subject of an injunction and
an action for damages brought by a politician who claimed to have been debased by the
painting. The Court held that although state’s were given a wide margin of appreciation
with respect to obscene and blasphemous material, in this case the painting had depicted
political satire and that the law and the victims should be more tolerant of such
depictions.

Article 11

See Appleby v United Kingdom and Lucas v United Kingdom, discussed under Freedom of
Assembly, below.

See also Zdanoka v Latvia, decision of the European Court 17 June 2004, where it was
held that the life long prohibition of the applicant from standing for election because of
her past membership and activities of the Communist Party of Latvia was
disproportionate and thus in violation of Article 11 and Article 3 of the First Protocol.

In Sorensen and Rasmussen v Denmark, 11 January 2006 it was held that there had been
a violation of article 11 when the applicants had been, respectively, dismissed and forced
to join a trade union other than one of their choice in compliance with a closed shop
agreement. The Court held that such a system struck at the foundation of freedom of


                                            28
choice and that current trends did not show that such agreements were essential to the
effective enjoyment of trade union freedoms.

In Tum Haber Sen and Cinar v Turkey (21 February 2006) it was held that there had
been a violation of article 11 when the applicant’s trade union had been dissolved on the
ground that civil servants could not form trade unions. No evidence had been provided
as to why the union would threaten society and the absolute prohibition was contrary to
the state’s obligations under the ILO and the European Social Charter.

See also Linkov v Czech Republic, 7 December 2006, where the European Court held that
it was in violation of article 11 to refuse to register the applicant’s party as a political
party on the grounds that it advocated an unconstitutional agenda. There was no
evidence that the party was going to employ undemocratic or violent means and the
party had been banned before it had begun its activities.

In ASLEF v UK, The Times, March 9 2007 it was held that there had been a violation of
article 11 when a trade union had not been allowed to expel a member of the union who
was an active member of a right wing political group. There had been a disproportionate
interference with the union’s right to enforce its beliefs and the member had not been
unduly penalised by the expulsion.

In Zhechev v Bulgaria, 21 June 2007 the Court held that there had been a violation of
article 11 when the applicants’ party, which advocated restoring the monarchy and
opening the borders with former Macedonia, had been refused registration. In the
Court’s view the aims of the group were neither destructive of democracy nor
detrimental to national security or integrity.

Article 12

In B and L v United Kingdom, decision of the European Court 13 September 2005, it was
held that there had been a violation of article 12 when the applicants – former father-
in-law and daughter-in law - had been denied the right to marry because of their
relationship. The European Court held that the legal prohibition of such marriages,
unless both former spouses were dead, was a disproportionate interference with the
right to marry and that the procedure for exceptionally granting the right to marry in
such cases was arbitrary and uncertain. The Court noted that although there was a
legitimate aim – the protection of family life and of children’s interests – the fact that
such relationships did not establish criminal liability made the prohibition on marriage
unnecessary. See now Marriage Act 1949 (Remedial Order) 2007, complying with the
Court’s ruling.

See Baiai v Home Secretary, The Times, June 26 2007 – scheme controlling sham
marriages of those seeking to enter the country was in violation of article 12

Article 1 of Protocol 1

In Stretch v United Kingdom, The Times, 3 July 2003, the Court found a violation of
article 1 when the applicant had been denied the option of a further term of 21 years
under an existing lease. The refusal by the local council to renew the lease disrupted his




                                            29
legitimate expectation of renewal and was a disproportionate interference with his
property rights.

See also Admissibility Decision in Stec and others v United Kingdom, 5 September 2005.

In Pye (Oxford) Ltd v United Kingdom, November 15 2005 it was held that there had
been a violation of article 1 of the First Protocol when landowners had lost possession of
their land by virtue of the rules on adverse possession. In the Court’s view the laws
provided inadequate protection to the true owners, particularly as there was no
statutory right of the openers to be notified of the possessor’s intention to claim those
rights. The Court noted that recently passed legislation redressed those procedural
shortcomings. This decision was overturned by the Grand Chamber of the European
Court on 30 August 2007. The Grand Chamber held that the extinguishing of title where
the former owner was prevented by law from recovering possession of land could not be
said to be manifestly without reasonable foundation. The rules including the limitation
period served a legitimate and had been in force for many years and the owners were
aware of them. The fact that no compensation was payable was understandable given the
purpose of limitation periods and the law struck a proper balance between the interests,
particularly as the owners could take steps to stop the limitation period from running.

In Edwards v Malta, 24 October 2006 the Court found a violation of Article 1 when the
applicant’s house and adjoining land had been requisitioned by the government thirty
years ago to provide homes for the homeless and he had received the sum of 67 Euros
per year in compensation for the loss of his house (nothing for the adjoining field). The
Court concluded that the government had not achieved a proper balance between the
interests of the community and the applicant’s right to profit from his property rights.
The government had imposed an excessive burden on him to provide accommodation to
another family.

See also Bosphorous Airways v Ireland, discussed under general, above.

Article 2 of the First Protocol

In Sahin v Turkey, decision of the Grand Chamber November 10 2005, it was held that
the exclusion of the applicant from University for wearing religious dress did engage the
right to education (disagreeing with the European Court on this point). The Grand
Chamber held that institutions of higher education came within that article. However, it
held that the rules did not destroy the very essence of the applicant’s rights under that
article; the rule balancing the rights of religious observance with the protection of
secularism (See Marshall, Freedom of Religious Expression and gender equality (2006)
MLR 452)

In Folgero v Norway, 29 June 2007 the Grand Chamber held that there had been a
violation of article 2 when the state imposed compulsory Christian education in schools
and failed to allow appropriate and exemption for parents opposed to it.

Article 3 of the First Protocol

In Santora v Italy, decision of the European Court July 2, 2004, it was held that there
had been a violation of the applicant’s right to vote when he had been disenfranchised


                                            30
following his conviction for a criminal offence. Although the Court appeared to accept
that disenfranchisement was a lawful and proportionate measure, it noted that the
imposition of the penalty had been unreasonably delayed, causing the applicant to be
ineligible for voting at the time of parliamentary elections.

See also Hirst (No 2) v United Kingdom, dealt with under Prisoners’ Rights, below. Now
upheld by the Grand Chamber, The Times, 10 October 2005.

In Py v France, (Application No 66289/01) it was held that there had been no violation
of article 3 of the first protocol when the applicant had been denied the right to
participate in referendums and elections in New Caledonia because he failed to comply
with a 10-year residency requirement. In the Court’s view there were applying to New
Caledonia ‘‘local requirements’’ warranting restrictions on the eligibility to vote.

In Zdanoka v Latvia, 16 March 2006 the Grand Chamber held that there had been no
violation of article 3 (or article 11) when the applicants had been refused the right to
stand for election from being an active member of the communist party that had tried
to overthrow the government by violence. Such a measure was within the state’s margin
of appreciation, but the state should keep the ban under review.

Article 14

In PM v United Kingdom, 19 July 2005 the European Court held that there had been a
violation of article 14, in conjunction with Article 1 of the First Protocol, when the
applicant had been denied tax relief in respect of maintenance payments made to his
daughter because he had not been married to the girl’s mother. The Court held that
there appeared to be no reason to treat him differently from a married father, who
would have been eligible for relief. Although the purpose of the deductions served a
legitimate aim– to make it easier for married fathers to support a new family – it was
difficult to see why unmarried fathers would not have similar difficulties.

In Stec and others v United Kingdom, 7 April 2006 the Grand Chamber of the European
Court held that there had been no violation of article 14 in conjunction with article 1 of
the first protocol when eligibility for earnings related benefits depended on the
differential retirement ages for men and women (65/60). The Grand Chamber held that
the ages were introduced to correct the disadvantaged economic poison of women and
that the retention of those ages was within the state’s margin of appreciation.

In R (RJM) v Secretary of State for Work and Pensions [2006] EWHC 1761 (Admin) it
was held that a homeless person did not have a status for the purposes of article 14 of
the Convention and thus the withdrawal of disability benefits when he was homeless did
not violate that article. Moreover, if he did come within article 14 the difference in
treatment was justified and it was permissible to distinguish between the homeless and
those who did have accommodation. Upheld on appeal: [2007] EWCA Civ 614

In Barrow and others v United Kingdom, 22 August 2006, the European Court held that
there was no violation of article 14 of the Convention when the applicant claimed that
her invalidity benefit stopped at 60, whereas for a man it would have continued until 65.
The state was entitled to operate a different retirement age for men and women, and
was entitled to change that policy slowly and gradually.


                                            31
In Couronne v Secretary of State for Pensions [2007] EWCA Civ 1086 it was held that
the secretary’s refusal to exempt British citizens whose origins were in the Chagos
islands from the habitual residence test fro determining entitlement to social security
benefits was neither irrational nor discriminatory within article 14.

In Burden and Burden v United Kingdom, 12 December 2006 the European Court held
that there was no violation of article 14, in conjunction with article 1 of the first
protocol when two sisters who had lived together all their lives were unable to apply for
exemption from inheritance tax on either’s death, as can married couples or civil
partners. The Court held that the exclusion of sibling relationships from family
relationships that could obtain the benefit of the scheme was within the state’s margin
of appreciation, encouraging as it did stable sexual relationships. The case has been
appealed to the Grand Chamber of the European Court of Human Rights. The Grand
Chamber of the European Court upheld that decision on 29 April 2008. The sisters’
relationship could not be equated with married couples and couples within the Civil
Partnership Act 2004. That was the case even though member states adopted
different rules of succession.

See also Runkee and White v UK, 10 May 2007

See also AL (Serbia) v Home Secretary [2006] EWCA Civ 1619 – it was justifiable
discrimination under article 14 to distinguish an asylum seeker who was part of a family
and one (as the applicant) who was not.

Article 34

In Mamatkulov v Turkey, The Times, March 13 2003, the European Court found a
violation of article 34 of the Convention when the government extradited the applicant
to another country in breach of an interim order made by the European Court of Human
Rights. See also Cotlet v Romania, decision of the European Court 3 June 2003, where
the Court found a violation when a prisoner’s correspondence with the Strasbourg
authorities was interfered with.

In Fairfield v United Kingdom (Application No 24790/04) the European Court held that
the children and executors of a late person could not bring a case under article 10 of
the Convention on behalf of a person who had been convicted under s.5 of the Public
Order Act 1986 for using insulting words by referring to homosexuals as immoral and
had subsequently died. (See Hammond v DPP, dealt with under Freedom of Assembly,
below.) The European Court held that the applicants were not victims under article 34,
as they had not been directly affected by the conviction. The Court distinguished other
cases where the true victim had died after bringing an application. The Court also noted
that a different, more flexible, test applied in cases under article 2 of the Convention,
because of the importance of that right.

In D v Ireland, 5 July 2006, the Court declared inadmissible a claim that the lack of
abortion facilities in Ireland constituted a violation of articles 3, 8, 13 and 14. The Court
found that the applicant could have applied for a court exemption under the general rule
against abortion and had thus not exhausted her domestic remedies before applying to
the Court.


                                             32
In Cahuas v Spain, 10 August 2006 the European Court found that there had been a
violation of article 34 when the applicant had been deported to Peru to face terrorist
charges in defiance of the European Court’s interim measure not to deport. The refusal
to obey the order constituted a breach of article 34, even though it did not create a
violation of article 3 on the facts.

In Dimitrijevs v Latvia, 30 November 2006 the Court found a violation of article 34
when a prisoner’s correspondence from the European Court was opened without lawful
authority. There had also been a violation of article 34 when the authorities refused to
send his form to the Court on grounds of lack of resources and told him to write to the
judge for permission to petition the Court. However there was no violation when the
authorities had refused to photocopy documents at their expense.


Chapters 4 & 5 – Domestic protection of civil liberties and the Human
Rights Act 1998

Pre-Act position

In R (Hurst) v HM Coroner for Northern District Council [2003] EWHC 1721, it was held
that the obligation of the state to investigate allegedly unlawful deaths existed prior to
the Human Rights Act 1998 and therefore applied to a death occurring before the Act
came into operation. In such a case the Coroner had a duty to consider the State’s
obligations in deciding whether to resume an inquest. Also in R (Khan) v Secretary of
State for the Home Department Khan the Court of Appeal [2003] EWCA Civ 1129 held
that the case could be dealt with under the 1998 Act because the state’s obligation to
protect life continued after the Human Rights Act despite the death occurring before
the Act. However, In Re McKerr, The Times, 12 March 2004, the House of Lords held
that article 2 did not apply to deaths occurring before 2 October 2000 and that the
common law did not impose such an obligation. This decision was followed in R (Challender
and others) v Legal Services Commission [2004] EWHC 925 (Admin) In R (Hurst) v HM
Coroner for Northern District Council [2005] EWCA Civ. 890 it was held that s.3 could
have a limited retrospective effect. In that case it was held that as s.3 applied the
court’s new interpretative power to legislation whenever enacted, the court could, in
appropriate circumstances, give a Convention compliant interpretation to any legislation
even though the dispute in the case related to an act committed before the Act came
into effect. The public body in this case had always had a duty to comply with the UK’s
international law obligations, including article 2 of the Convention, irrespective of the
obligations under the HRA. Whether an Act could be interpreted in such a way so as to
bestow individual rights and public duties with respect to pre-Act actions depended on
the circumstances, and in this case public policy dictated that article 2 should inform
the duty of the coroner and that would not cause unfairness to the public body. This was
because the Convention rights, and the courts’ obligation to protect them, existed
before the 1998 Act came into operation. However, the House of Lords applied Re
McKerr and denied that the Act and article 2 could have a retrospective effect; [2007]
2 WLR 726

In R (Anufrijeva) v Secretary of State for the Home Department [2003] 3 All ER 827,
the House of Lords held that the constitutional principle requiring the rule of law to be



                                            33
observed also required that a constitutional state to accord to individuals the right to
know of a decision before their rights could be adversely affected. Parliament had not
expressly or impliedly legislated to displace the applicable constitutional principle.
Accordingly, an uncommunicated administrative decision (in this case that the claimant's
income support was to be stopped) could not bind an individual. Both cases illustrate the
employment of constitutional fundamentals beyond the rights laid down in the European
Convention, the House of Lords referring to cases such as Raymond v Honey and ex
parte Simms.

In R (Hooper) v Secretary of State for Work and Pensions [2003] 3 All ER 674, the
Court of Appeal confirmed that the claimants could not claim for damages suffered as a
result of the application of discriminatory law (with regard to the payment of widowers
benefit) when such discrimination took place before the coming into operation of the
Human Rights Act. However, with respect to those acts committed after the Act, the
court found that the Secretary of State had acted incompatibly with the claimant’s
rights under articles 8 and 14 of the Convention. This case was heard jointly with R
(Wilkinson) v IRC [2003] 3 All ER 719, where the Court of Appeal held that although
taxation legislation was incompatible with the Convention because of its discriminatory
effect, the court had no power to grant compensation in the face of clearly worded
legislation passed by Parliament. On appeal to the House of Lords, The Times, May 6
2005, it was held in Hooper that it was not unlawful for the government to pay widow’s
benefit to widows alone and not to widowers, and in Wilkinson it was held that the
revenue authorities had no power to award widower widow’ allowances to the claimants as
the word widow could not be interpreted to mean widower

In Cullen v Chief Constable of the RUC, The Times, 11 July 2003, the House of Lords
held that failure to give reasons for delaying an arrested person's right to access to a
solicitor, as required by s.15 of the Prevention of Terrorism (Temporary Provisions) Act
1989 did not give rise to a private law remedy in damages. The majority of their
Lordships held that it was not enough that Parliament imposed the duty for the
protection of a limited class of the public; it also had to be shown that breach of the
duty was calculated to occasion loss of a kind for which the law normally awarded
damages. Lords Bingham and Steyn dissented, feeling that the Act's provisions were
passed with the clear intention of creating private law rights. Although the individual
would now have an action under the Human Rights Act 1998, presumably the rationale of
the case would be used to deny the award of just satisfaction in the form of damages.

In Cumming and others v Chief Constable of Northumbria Police [2003 EWCA Civ 1844,
the Court of Appeal held that a court in assessing whether the police had reasonable
grounds to arrest a person had to take into account article 5 of the European
Convention, even though the arrest took place before the coming into operation of the
Human Rights Act 1998.

Retrospectivity of the Act

In Wilson v First County Trust (No 2) [2003] 3 WLR 568, the House of Lords held that
the Act could not apply to challenge a credit agreement entered into before the Act
came into operation. The Court of Appeal had applied the Act because they took the
imposition of the court order as the relevant act in determining the application of the
1998 Act. (See below under Declarations of incompatibility). See now MPC v Hurst


                                           34
[2005] EWCA Civ. 890, where it was held that s.3 of the 1998 Act can have
retrospective effect in appropriate cases.

Note, in Kansal v United Kingdom, The Times, 29 April 2004, the European Court found
that the applicant had been denied a fair hearing under article 6 of the Convention when
the applicant’s answers to questions made under compulsion by virtue of the Insolvency
Act had been used at his criminal trial. The House of Lords had decided that his claim
under article 6 could not be heard as the original trial took place before the coming into
operation of the Human Rights Act 1998.

In R v Beckles, The Times, November 17 2004, the Court of Appeal allowed an appeal
against conviction because the jury might have drawn adverse inferences against the
defendant’s right to silence. In coming to this conclusion the Court of Appeal referred
to the European Court’s decision in Beckles v United Kingdom (considered in chapter 4)
for the purpose of attacking the jury’s decision in the original trial. Although this case
appears to run counter to R v Lyons (page 147 of the text), the Court of Appeal is saying
that the jury could and should have complied with article 6 and the common law at the
time of the trial. In Lyons, the Court had no choice but to follow incompatible domestic
law at the trial.

See also R (Wright) v Home Secretary, 30 November 2004, upheld by the Court of
Appeal ([2006] EWCA Civ 68, where it was held that the source of the prisoner’s article
5 rights was the 1998 Act, and that any victim would have to prove that the violation
took place after the coming into force of the Act. There was no basis for giving article
5(5) a different interpretation and applying that provision retrospectively.

See also In M v Secretary of State for Work and Pensions, The Times, March 14 2006
the House of Lords held that the statutory framework for assessing child support
contributions for non-resident parents, which distinguished between parents in
heterosexual and homosexual relationships was not in violation of article 8. The
provisions, now amended by the Civil Partnership Act, above, struck a fair balance and it
was within the state’s margin of appreciation not to apply the Act retrospectively.

See also Wainwright v Home Office, and Wainwright v United Kingdom, 26 September
2006, dealt with under Privacy, below.

Note the government’s recent Green Paper on the Governance of Britain (CM 7170),
containing proposals for the reform of the Human Rights Act 1998.

Scope of the Act

In R (B and others) v Secretary of State for the Foreign and Commonwealth Office
[2004] EWCA Civ 1344, the Court of Appeal held that it was possible to engage the
liability of UK diplomatic personnel under the Human Rights Act for decisions made in
the Australian Embassy. Thus, the refusal of such an officer to grant refugee status to
someone who had unsuccessfully applied for such to the Australian authorities raised an
issue of liability under article 3 of the Convention. However, on the facts the applicants
had failed to show the necessary real risk of ill treatment had they been deported.




                                            35
In R (Al Skeina and others) v Secretary of State for the Defence [2004] EWHC 2911
(Admin) it was held that the death of an Iraqi civilian in the custody of British forces in
Iraq engaged the Human Rights Act 1998 and thus the duty to hold a proper
investigation into that death as required by article 2 of the European Convention. On the
facts the investigation lacked the openness, speed and effectiveness to comply with
article 2. The Court held that the civilian’s custody in the hands of British soldiers
placed him within the United Kingdom’s jurisdiction as required by article 1 of the
Convention. However, it also found that the shooting of civilians during the hostilities
did not engage article 1, as article 1 did not apply to extend a broad, worldwide extra-
territorial jurisdiction arising from the exercise of authority by state part agent
anywhere in the world. The decision was upheld in the Court of Appeal ([2005] EWCA Civ
1609 –See now House of Lords decision: [2007] UKHL 26, where it was held that ss.6
and 7 of the 1998 Act should be interpreted so as to apply not only where a public
authority acted within the UK but also when it acted within the jurisdiction of the UK
for the purposes of article 1 ECHR but outside UK territory. The purpose of the Act was
to provide remedies in domestic law to those whose rights had been violated by a UK
public authority and making such remedies available for acts done on another territory
would not be offensive to state sovereignty. Both article 2 of the Convention, given
effect to by the 1998 Act, and s.6 needed to be interpreted as applying wherever the
UK had jurisdiction within article 1 of the ECHR. The matter was referred back to the
Administrative court to consider whether the investigation complied with the procedural
duties under article 2 of the Convention. The House of Lords confirmed that th3
shooting of the other civilians did not engage article 1 or the HRA.

In R (Smith) v Oxfordshire Assistant Deputy Governor [2008] EWHC 694 (Admin) it
was held that a soldier who had died from hyperthermia whilst carrying out duties
in Iraq was subject to the jurisdiction of the Human Rights Act 1998 and thus
could rely on the procedural obligation under article 2 of the European Convention.
It was held that the protection under article 2 was capable of extending to a
member of the armed forces wherever they were.

See also R (Razzaq) v Secretary of State for the Defence [2005] EWHC 1809 (Admin)
where it was held that the detention of an Iraqi/British citizen in Iraq for reasons of
security, under UN Resolution 1546, was lawful despite being in violation of article 5 of
the ECHR as article 5 had been displaced by that resolution. An appeal to the Court of
Appeal was dismissed: [2006] EWCA Civ 327. The Court of Appeal held that the UN
resolution gave the multi national force the power to intern people for imperative
reasons of security and that power embraced people of all nationalities whose
internment was deemed necessary. That resolution displaced Convention obligations and
consequently the HRA could not be relied upon (relying on Quark Fishing, below). See
now the House of Lords decision: [2007] UKHL 58, dismissing the appeal and stressing
that UN procedures can take precedence provided art 5 rights were not infringed to any
greater extent than was inherent in any such detention.

In R (Quark Fishing) v Secretary of State for Foreign and Commonwealth Affairs, The
Times, October 14 2005, it was held that the Human Rights Act 1998 did not extend to
the South Sandwich Islands so as to engage the government’s liability under the Act to a
fisherman who had been refused a licence by the Secretary of State.




                                            36
In R (Al Rawi and others) v Foreign Secretary and others [2006] EWHC 972 it was held
that the principle in R (Abassi) whereby the secretary would have a discretion to plead
with a foreign country with respect to the detention of British national did not apply to
foreign nationals who had British relatives. Such a distinction was not in violation of
articles 8 or 14 of the Convention. This decision was upheld by the Court of Appeal
[2006] EWCA Civ 1279, where it was held that the different treatment of non-nationals
did not constitute discrimination under the Race Relations Act 1976; the reason for the
distinction was not nationality but for diplomatic reasons. There was no obligation under
the European Convention for the UK to take up the families’ complaints with respect to
the actions of the US authorities, and any by review of the secretary’s decision would
be circumvented by a broad margin of discretion.

In R (Gentle) v Prime Minister [2006] EWCA Civ 1690 the Court of Appeal held that
article 2 of the ECHR did not impose an obligation on member states to take reasonable
steps to ensure that their armed forces were not sent on military operations that were
unlawful under international law. There was no duty to ensure that the operations were
militarily or politically desirable or sensible. Other than article 2 of the Convention, the
issue of whether the government had complied with international law was non-justiciable.
The House of Lords will hear an appeal in early 2008.

See Gordon, Global Reach (2007) 157 NLJ 237 for account of extra territorial liability
under the HRA.

Section 2 – taking into account the case law of the European Court

In Price v Leeds CC, The Times, 17 March 2005, it was held by the Court of Appeal that
when faced with a House of Lords’ decision that was inconsistent with a decision of the
European Court of Human Rights (Connors v United Kingdom, dealt with under the
European Convention on Human Rights, above) the Court of Appeal should follow the
decision of the House of Lords and refer the case to the House of Lords. The House of
Lords’ decision was on a particular statutory scheme and it would subvert legal certainty
if the decision in Connors was followed. The case should be referred to the House of
Lords to decide on compatibility. In the House of Lords (Kay v Lambeth LBC; Price v
Leeds CC, The Times, 10 March 2006) it was held by Lord Bingham that the European
Court accorded a generous margin of appreciation to the national authorities, attaching
much importance to the facts of the case. Thus, it was for the courts to decide how in
the first instance the principles expounded in Strasbourg should be applied in the
special context of national legislation, practice and social and other considerations. To
those decisions the ordinary rules of precedent should apply.

In R (Khail) v Home Secretary [2006] EWHC 2139 (Admin) it was held that a decision by
the secretary as to whether a claim was a fresh claim for asylum was only reviewable on
Wednesbury grounds. The pre Act decision in ex parte Oniboyo was still good law until
the Court of Appeal overruled it.

See also Eastaway v Secretary of State for Trade and Industry [2007] EWCA Civ 425,
where the Court of Appeal held that the fact the claimant had won a victory before the
European Court with respect to the delay of his criminal proceedings did not mean that
his original disqualification proceedings should be quashed in breach of article 6. In




                                            37
addition, the fact that he gained compensation for delay from the European Court did
not preclude him from being a victim under the HRA 1998 if he could make out a case.

See also Dowsett v Criminal Cases Review Commission [2007] EWHC 1293 – a finding of a
breach of article 6 does not necessarily render the relevant conviction unsafe.

Statutory interpretation

In Bellinger v Bellinger, see under PRIVACY, the House of Lords held that it was not
possible to use s.3 of the 1998 Act to interpret the words man and woman to include a
person who had undergone gender reassignment. See also Anderson and Taylor v Home
Secretary, also dealt with in the main text, but contrast Ghaidan v Mendoza dealt with
in the main text and below.

In R (S) v Waltham Forest Youth Court [2004] EWHC 715, it was held that it was not
possible to add words to s.16 of the Youth Justice and Criminal Evidence Act 1999 so as
to allow a young defendant to give evidence via a television link where he was afraid of
his co-defendants. Section 16 of the Act lay down clearly and specifically when the
court could give protection to those giving evidence, and by reading an extra provision
into the section the court would be legislating and not interpreting. (R v A distinguished)

On 21 June 2004 The House of Lords upheld the Court of Appeal’s decision in Mendoza v
Ghaidan that the Rent Act 1977 could be interpreted to give a homosexual the right to
inherit his partner’s tenancy. According to the majority of their Lordships (Lord Millett
dissenting) it was possible to interpret the legislation so as to avoid an incompatibility
with article 14 of the European Convention. Lord Millett dissented on the grounds that it
was for Parliament to change a law that was quite clearly not intended to cover same sex
relationships.

See also R (Hurst) v HM Coroner for Northern District Council [2005] EWCA Civ. 890
where it was held that s.3 could have a limited retrospective effect. Whether an Act
could be interpreted in such a way so as to bestow individual rights and public duties
with respect to pre-Act actions depended on the circumstances, and in this case public
policy dictated that article 2 should inform the duty of the coroner and that would not
cause unfairness to the public body. This was because the Convention rights, and the
courts’ obligation to protect them, existed before the 1998 Act came into operation.

In Attorney-General’s Reference (No 4), The Times, 15 October 2004, the House of
Lords interpreted s.11(2) of the Terrorism Act 2000 as imposing an evidential rather
than legal burden on the defendant so as to make that provision compatible with article
6 of the Convention and to avoid a finding that that provision was disproportionate and
incompatible. This was the case (two of their Lordships dissenting) even though
Parliament had intended to impose a legal burden in such cases. Although Parliament had
had that intention when passing the 2000 Act, having regard to its intention in passing
s.3 of the Human Rights Act 1998, - that provisions such as s.11 should not be
incompatible - it was possible to read s.11(2) down in such a way as to avoid a legal
burden. See The Act, article 6 and the right to a fair trial (below). See also MB v Home
Secretary, considered under declarations of incompatibility, below




                                            38
In R v Keogh, 7 March 2007 the Court of Appeal held that the reverse burden of proof
in ss.2 and 3 of the official Secrets Act 1989 was incompatible with article 6 of the
ECHR. It was held that the provisions could act effectively without such a reversal and
thus the measures were disproportionate and in breach of article 6. Accordingly those
provisions were incompatible but could be read down to be so compatible. (A-G’s
Reference No 4, above, applied)

In R v Holding, Court of Appeal December 1 205 it was held that it was possible to read
a proviso into s.75(1) (a) and (b) of the Representation of the People Act 1983 to the
effect that expenses up to £500 could be allowed. This proviso was evident in s75(1)(c)
and(d) and could be read into the offences under (a) and (b). The Court of Appeal held
that this was possible by adopting the principles used in Mendoza (above) and that it was
not necessary to rely on the government’s concession that the omission in those
offences was an oversight. The Court of Appeal referred the question of the provisions’
compatibility under article 10 to the House of Lords

See also R (Morris) v Westminster CC, dealt with below under declarations of
incompatibility

See also R (Haw) v Secretary of State for the Home Department and another, The
Times, 4 August 2005, dealt with under Freedom of Assembly, below

See also Culnane v Morris [2006] 2 All ER 149, dealt with in Freedom of Expression,
below, where the High Court used s.3 of the HRA 1998 to interpret s.10 of the
Defamation 1952, overruling previous contrary case law on the matter.

Declarations of incompatibility

In R v Attorney-General, ex parte Rushbridger and another [2003] 3 All ER 784, the
House of Lords held that although s.3 of the Treason Felony Act 1848 was capable of
being incompatible with article 10 of the Human Rights Act 1998, it would refuse to
make such a declaration without proof that there was any victim of the legislation. In
this case there was no real risk of anyone being prosecuted under the legislation for
non-violent conduct and thus no real risk of any interference with free speech. In their
Lordship's view, it was for the legislature and not for the courts to keep the statute
book up to date. This overruled the Court of Appeal's decision to grant a declaration:
[2002] EWCA Civ 397.

See also Taylor v Lancashire CC [2005] EWCA Civ 284, where it was held that a person
who was not affected by a provision allegedly incompatible with article 14 of the
European Convention could not seek and rely on a declaration of incompatibility of that
provision. In this case the claimant had been affected by another provision of the
Agricultural Holdings Act 1986 and could not thus rely on the possible incompatibility of
another provision of that Act.

In Wilson v First County Trust (No 2) [2003] 3 All ER 568, The House of Lords
overturned the Court of Appeal decision in Wilson [2002] QB 74. The Court of Appeal
held that relevant provisions of the Consumer Credit Act were incompatible with article
6 of the Convention because they prevented credit companies from enforcing
agreements unless specific procedures had been followed in the making of such


                                           39
agreements. The House of Lords held that such provisions did not interfere with the
company’s access to the courts as it merely constituted a limitation on the substantive
scope of a creditor’s rights, whereas article 6 guaranteed procedural fairness (see, for
example Matthews v Ministry of Defence, below). With respect to the claim under
Article 1 of the First Protocol, the House of Lords were prepared to accept that there
had been an interference with the company’s property rights, but felt that the
interference with lender’s rights was justified. It was open to Parliament to adopt the
provisions as part of an overall package in response to the social problem in question.
Equally importantly, the House of Lords held that the Court of Appeal had been wrong in
making a declaration of incompatibility in respect of a cause of action that arose before
the Act came into operation; the Court of Appeal were wrong to find that the relevant
act for the purpose of s.6 of the Act was the court’s order refusing to enforce the
agreement. In addition, the House gave some guidance on the granting of declarations
and the interpretation of legislation. In their Lordships’ view, when a court was
exercising its jurisdiction under the Act in assessing the compatibility of primary
legislation, it was entitled to have regard to the policy objectives behind the legislation
by looking at ministerial statements at the time the Bill was proceeding through
Parliament. In considering that material, the court was not encroaching upon
parliamentary privilege or questioning proceedings in Parliament. However, the content
of parliamentary debates had no direct relevance to the issues the court was called upon
to decide in compatibility matters and those matters were not a matter for investigation
or consideration by the courts. (The latter point was applied in R (Wilson) v Wychavon
DC [2007] EWCA Civ 52)

In R (M) v Secretary of State for Health, The Times, 25 April 2003, the High Court
held that provisions of the Mental Health Act 1983 were incompatible with the inmate's
article 8 rights. The provisions allowed the patient's nearest relative – a person who can
confirm decisions relating to the patient's welfare – to be changed without the patient's
consent and such a situation had already been declared unlawful by the European Court
of Human Rights (FC v UK; JT v UK). The court granted the declaration despite the
government's concession of their incompatibility and the fact that the rules were about
to be changed. In the court's view the government had known for a substantial period
that the provisions were inconsistent with the European Convention and the finding of
the European Court, and a declaration was therefore appropriate.

In R (MH) v Health Secretary [2004EWCA Civ 1690 the Court of Appeal held that a
prolonged detention under s.2 of the Mental Health Act 1983, as permitted by s.29 of
the same Act, was incompatible with article 5(4) of the European Convention. The law
should place the incompetent patient in the same position as the competent patient with
respect to access to a tribunal and the applicant in this case had been denied such
access and detained for an additional 28 days as a result. The case was appealed to the
House of Lords ([2005] UKHL 60) who held that the process under s.29 was capable of
being operated compatibly with article 5 because the patient could either ask the
secretary to refer the case to a tribunal, or seek judicial review of his decision.

In R (Morris) v Westminster City Council [2004] EWHC 2191 (Admin), it was held that
s.185(4) of the Housing Act 1996 was incompatible with article 14, taken with article 8,
of the Convention because it required a dependent child of a British citizen to be
disregarded when determining priority needs, when that child was subject to
immigration control. The applicant had been discriminated against in the enjoyment of


                                            40
her family and home life on the grounds of her daughter’s national origin and such
discrimination. That provision had the effect of depriving the applicant of a priority
need and therefore could not be regarded as reasonable and proportionate. It was not
possible to read that section in a way that was compatible with article 8 and thus the
provision should be declared incompatible. To read it any other way would cause the
court to fall into the trap of amending rather than interpreting the provision. (Contrast
Attorney-General’s Reference (No 4), dealt with above. This decision was upheld by the
Court of Appeal who held that the measures were not a proportionate and reasonable
response to discouraging overstaying tourists: [2005] EWCA Civ 1184; The Times,
October 17 2005

Following the decision of the House of Lords in Re S (children) (Care Order), see pages
157-158 of the text, an application was lodged before the European Court of Human
Rights, alleging a violation of articles 6 and 8 of the Convention: S v UK (Application No
34407/02, August 31 2004).

In A and others v Home Secretary, 17 December 2004 the House of Lords held that
s.23 of the Anti-Terrorism, Crime and Security Act 2001 were incompatible with article
5 of the European Convention and were not justified under article 15 of the Convention.
See now s.23 Terrorism Act 2006 on extended detention powers and s.2 of the PTA
2005, successfully challenged in Re MB, below

In Re MB, The Times, 14 April 2006, the High Court held that the procedures in s.3 of
the Prevention of Terrorism Act 2005 relating to supervision orders under that Act
(passed in response to the House of Lords’ decision in A v Home Secretary, above, were
incompatible with article 6 of the Convention. The court held that the procedures under
s.3 merely allowed the court to review the legality of the secretary’s decision to make a
detention order and that that was conspicuously unfair. The thin legality of that
procedure could not disguise the fact that the controlees’ rights were being determined
by the executive and not by an independent court as required by article 6. The court
held that the cumulative effect and unfairness of the procedure breached article 6.
However, as the court could not on the face of it conclude that the secretary’s order in
this case was legally flawed (because of the one-sided information available to him), the
order should continue in force. This was overturned by the Court of Appeal [2006]
EWCA Civ 1140 where it was held that the provisions under s.3 of the 2005 Act could
and should be read to allow the courts to review those powers beyond bare legality and
to insist that there were reasonable grounds for the secretary’s belief and order. The
Court of Appeal also held that the use of closed materials was not necessarily in
violation of the Convention, provided there were appropriate safeguards in place – the
use of a special advocate and the rules of the court constituted such safeguards. The
court of Appeal remitted the case back for the validity of the order to be reconsidered.
On appeal to the House of Lords [2007] UKHL 46 it was held that the procedures under
the Act for the admission of closed evidence had to be read and given effect ‘’except
where to do so would be incompatible with the right of the controlled person to a fair
trial. The cases were remitted back to the original court on that basis. Their Lordships
held that the procedure was not incompatible with article 6 per se as long as strenuous
efforts were made by the court to ensure a fair trial. Subsequently, in Secretary of
State for the Home Department v AE [2008] EWHC 132 it was held that the
adopted procedures complied with article 6 and that the process as a whole did not
involve a serious injustice to the controlled person. In the present case it was


                                            41
strictly necessary to invoke the closed evidence procedure, and given that all that
needed to be shown was that the secretary had reasonable grounds to suspect
terrorist related activity and that there was evidence of E’s fraudulent activity
which would have undermined his refutation of the closed evidence, there had been
no injustice. However the court and the secretary agreed that it would cause
injustice if he was not told of certain allegations; in such a case it was agreed not
to rely on such evidence.

In Re JJ and others, 28 June 2006 it was held that control orders imposed on the
applicants under s.2 of the Prevention of Terrorism Act 2005 were in breach of article
5 of the ECHR. Consequently, the orders, which purported to be non-derogating orders
because the Home Secretary regarded them as restrictions on liberty rather than
deprivations of liberty, were in fact derogating orders that the Secretary had no
jurisdiction to make. The High Court applied the decision of Guzzardi v Italy and noted
that the orders impacted severely on liberty and were expected to last indefinitely.
Thus was upheld by the Court of Appeal [2006] EWCA Civ 1141, where it was held that
the judge had been correct in his interpretation of article 5 and the relevant case law in
concluding that the restrictions prevented the individuals from pursuing the life of their
choice. The Court of Appeal also held that the judge was right in quashing the orders
instead of modifying them. See also AF v Home Secretary, The Times, April 18 2007,
where JJ was applied. In the House of Lords [2007] UKHL 45 it was held by a majority
(Hoffmann and Hale dissenting) that there had been an interference with liberty and
that the court at first instance was right in refusing to modify as opposed to nullify
control orders made ultra vires the Act. Subsequently, in Secretary of State for the
Home Department v AF [2008] EWHC 453 the court accepted that there was an
exception to the right to a fair trial under article 6 with respect to the control
order process – where despite the lack of meaningful disclosure the court
nevertheless felt that in any event no possible challenge could conceivably have
succeeded. This exception had been articulated by Lord Brown in Re MB. However
in subsequent proceedings (The Times, 25 April 2008) it was held that that
exception in Lord Brown’s dicta did not represent the law. Article 6 was concerned
with procedure and the right to a fair trial and was not concerned with the
substantive outcome of the case. Any injustice to the respondent’s rights referred
therefore to his procedural rights and not whether the result of the litigation was
the right result. Article 6, as interpreted by the House of Lords in Re MB,
required the substance of the secretary’s case on which she relied to be disclosed
to a respondent with no exception, if there was to be compliance with article 6.

In Home Secretary v E [2007] EWHC 233 the High Court held that there had been a
breach of article 5 by the issuing of a non-derogating control order under s.3 of the
2005 Act. Applying the test in Guzardi v Italy and JJ (above) it was held that the
restrictions placed on E (similar to those imposed on JJ) deprived him of his liberty and
not merely interfered with his freedom of movement. The court stressed that the
powers under s.3 were not limitless and were subject to intense review by the courts;
however, they held that the powers were sufficiently certain to be lawful. It also took
notice of E’s mental state and the effect that such would have on the measures imposed
on him. This decision was overturned on appeal: [2007] EWCA Civ 459 – the Court of
Appeal held that the restrictions were not severe enough to engage art 5. On appeal the
House of Lords [2007] UKHL 47 held that the conditions imposed on the controlled
persons did not engage article 5 and secondly that although it was implicit in the 2005


                                            42
Act that if there was evidence that justified the bringing of a criminal charge a suspect
would be prosecuted rather than be made the subject of a control order, the absence of
a realistic prospect of prosecution was not a condition precedent to the making of such
orders. Section 2(1) of the Act did not include that element as a qualifying condition,
and to require the secretary not only to consult on whether there was such a prospect,
but also to obtain a clear answer, would emasculate what was clearly intended to be an
effective procedure and would not represent the intention of Parliament.

See also Abu Rideh v Home Secretary [2007] EWHC 2237 (Admin) – modification to
individual’s control orders were proportionate and not in breach of article 5

See Sandell, Liberty, fairness and the UK control order cases: two cases forward,
two steps back [2008] EHRLR 120 and Walker, Prevention of Terrorism Act 2005
[2008] Crim LR 486

See also R (Wright and others) v Secretary of State for Health [2006] EWHC 2886
(Admin), under the right to a fair trial, below

In R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37 the House of
Lords held that it was not unlawful to deny pension payment increases to a UK national
now living in South Africa. The claimant could not compare herself to a person living in
the UK. Further, in the joint case of R (Reynolds) v SSWP, it was held that the granting
of a lower rate of job seeker’s allowance to persons under the age of 25 was objectively
justified; the matter being one for Parliament to determine.

In R (Countryside Alliance) v Attorney-General, The Times, 3 August 2005 the High
Court held that the Hunting Act 2004 was not incompatible with the European
Convention or relevant EC law. The application did not engage any Convention right apart
from article 1 of the First Protocol to the Convention, and in that case the Act imposed
a justified and proportionate interference, within Parliament’s area of discretion. This
was upheld by the Court of Appeal ([2006 EWCA Civ817 – the Court held that articles 8
and 11 were not engaged (there had been no impact on private life, and only a restriction
on an activity of that assembly, rather than a restriction on the right of assembly itself.
Article 1 of the First protocol was engaged but the interference was for a legitimate
aim and was proportionate. EC law (articles 28 and 49) was not engaged. The decision
was upheld by the House of Lords: [2007] UKHL 52 – article 8 not engaged as the
activity did not fall within the scope of privacy interests protected by that article and
was in any case carried out in public. Also, the pursuit did not engage the type of
democratic assembly envisaged by article 11 See also Friend v Lord Advocate [2007]
UKHL 53 – no engagement of article 9 right to thought and conscience.

See also Bellinger v Bellinger, detailed in The right to private life, below, and R (Uttley)
v Secretary of State for the Home Department, The Times, August 4 2003, detailed
under Prisoners' Rights, below

See also R (Hammond) v Home Secretary, discussed in Prisoners Rights, below.

In R (Clift) v Home Secretary; Hindawi and Headley v Home Secretary [2006] UKHL 54
the House of Lords held that the early release provisions contained in the Criminal
Justice Act 1991 (for long term prisoners and those awaiting deportation) were


                                             43
incompatible with articles 5 and 14 of the Convention because they denied those
prisoners the right of access to the Parole Board. However, in Clift’s case he had not
been treated differently on grounds of ‘other status’ within article 14 – that referred to
personal characteristics and not to what the person had done in the past; in this case
the length of the sentence was not a personal characteristic falling within art 14, it
related to the seriousness of the offence he had committed – the fact that Parliament
had not remedied this anomaly did not mean that the provision was incompatible with the
Convention, particularly as the European Court had not ruled on this issue.

Statements of (in)compatibility

Section 321(2) of the Communications Act 2003 makes political advertising unlawful.
Because this provision may be inconsistent with the European Court’s decision in VgT
Verein gegen Tierfabriken v Switzerland, the Minister made a declaration under
s.19(1)(b) of the Human Rights Act 1998 that he intended to proceed with the Bill
despite not making a declaration of compatibility. (For a discussion of this provision, see
Lewis, Political Advertising and the Communications Act 2003 [2005] EHRLR 290. See
now Lewis, Rights Lost in Translation [2007] EHRLR 663. The decision of the High
Court was upheld by the House of Lords: [2008] UKHL 15. The House of Lords held
that the greater immediacy and impact of radio and television advertising accounted
for a need for a blanket prohibition of political advertising in those media where no
such prohibition applied to other communication media. There was no common
consensus about how to legislate for religious and political advertising and each
Member State appeared best fitted to judge the checks and balances necessary to
safeguard the integrity of its own democracy consistently with article 10. The full
arguments about equality in freedom of speech and political advertising were not
considered and employed in VgT and it was not to be assumed that the European
Court would disagree with the House of Lords in this case: the decision in the
present appeal showed no more than the possibility of a divergence of opinion of
the European and domestic courts, something which was implicitly contemplated by
the Human Rights Act 1998.

The provision has recently been challenged under the Human Rights Act by Animal
Rights International, who claims that it is contrary to article 10 and to European Court
case law. In R (Animal Defenders International) v Secretary of State for Culture and
Media and Sport [2006] EWHC 3069 (Admin) it was held that the prohibition on political
advertising on television and radio was not incompatible with article 10. Parliament had
acted in the ambit of the discretionary judgment available to it in introducing and
maintaining the prohibition. Parliament had laid great store on the establishment of a
regime of impartiality peculiar to television and radio services in matters political
because of the potency and persuasiveness of those media their and corresponding
vulnerability to abuse by powerful or well-placed interests, who might distort the
democratic process unfairly to their advantage.

Public authorities

In Parochial Church Council of the Parish of Aston Cantlow and others v Wallbank [2003]
3 WLR 283, the House of Lords held that a parochial church council was not a public
authority within s.6 of the Human Rights Act. Although the Church of England had
special links with government, it was essentially a religious body and not a governmental


                                            44
one. This overruled the decision of the Court of Appeal ([2002] Ch 51, where it was held
that it was a public authority because it carried out functions that a private individual
could not. The House of Lords appear to have re-asserted the importance of the source
and nature of the body in determining the term public authority. The House also agreed
that there was no violation of article 1 of the first protocol to the Convention simply
because the owners of property acquired a very expensive duty to repair.
However, in Hampshire CC and another v Beer [2003] EWCA Civ 1056 it was held that
the decision of the Hampshire Farmers Markets Ltd to reject an application by a trout
farmer to participate in the Farmers Markets Programme was susceptible to judicial
review and s.6 of the Human Rights Act. Although it was a private company, it owed its
existence to Hampshire County Council, replaced the Council's functions and was
assisted by the Council in a variety of ways.

In R (Mannering and others) v Havering LBC [2006] EWHC 1714 (Admin) it was held that
a private body providing accommodation to persons pursuant with arrangements with the
local authority so as to carry out the latter's functions under statute were not a public
authority under s.6 of the HRA merely because they were carrying out duties that could
and would be carried out by the local authority; Leonard Cheshire Foundation applied. It
was also held that the local authority still maintained its liability under the HRA to
ensure that the claimants' rights under articles 3 and 8 were not breached on transfer
of such duties to the defendants. This was upheld by both the Court of Appeal (The
Times, February 2) and the House of Lords in L v Birmingham Council and Johnson v
Havering LBC [2007] 3 WLR 112 – the mere possession of special powers conferred by
Parliament did not of itself mean that a body had functions of a public nature; equally
some bodies might not have statutory powers but be amenable to review. The focus was
on the functions being performed and in this case the actual provision of care by a
private care home, as opposed to its arrangement by the local authority, was not an
inherently governmental function. The care home was a private profit making company.

Note the Human Rights Act 1998 (Meaning of Public Authorities) Bill, seeking to clarify
the meaning of public authorities. That Bill was dropped but the Human Rights Act
(Meaning of Public Function) Bill 2007 has a provisional date of 16 May 2008 for a
second reading, and the Act will be extended to protect people in privately run
residential and nursing homes

In Cameron and others v Network Rail Ltd [2006] EWHC 1133 (QB) it was held that
Railtrack (a company responsible for controlling the infra structure of the national
railway) was not a public authority for the purpose of s.6 of the HRA. Although the
company originally had public law functions, regulations passed in 2000 divested it of
those duties. Thus, it was not acting as public authority at the time of the accident in
question. Further, assuming that the accident was caused by R’s negligence, the fact
that damages were limited to funeral expenses did not mean that the state were in
violation of article 2 by failing to provide an effective remedy for unlawful deaths.
There was a civil remedy and no gross negligence or manslaughter was alleged. It was
within the state’s margin of appreciation to limit the availability of financial claims to
financially dependant relatives.

In R (Smith) v Secretary of State for the Defence [2004] EWHC 1797 (Admin), it was
held that the failure of the Secretary to pass secondary legislation which might have
cured a discriminatory practice was not an ‘act’ for the purposes of section 6 of the


                                             45
Human Rights Act 1998. It was also held that the provisions of the Pensions Scheme Act
were objectively justified in respect t any discriminatory effect they had.

In R (Mullins) v Jockey Club [2005] EWHC 2197 (Admin) it was held that the Jockey
Club was not subject to judicial review, confirming the decision in Aga Khan.

Proportionality and the Human Rights Act

In Edore v Secretary of State for the Home Department [2003] NLJ 998, the Court of
Appeal gave guidance on the determination of the proportionality of interferences with
qualified Convention rights. In this case the Court of Appeal held that given the margin
of discretion available to decision-makers, there was often room for two possible
proportionate outcomes in a particular situation. Within that margin, a decision-maker
may, in some circumstances, fairly reach one of two opposite conclusions. However, both
decisions would strike a fair balance between the competing claims and be proportionate.
In the present case, the deportation of a woman who had lived in the country for over 10
years, and who had had two children by a man who kept in regular contact with her and
the children, was not proportionate and was not a decision open to the Secretary of
State. (Applied in Vujnovic v Secretary of State for the Home Department [20003]
EWCA Civ 1843).

In R (British American Tobacco and others) v Secretary of State for Health [2004]
EWHC 2493 (Admin), the High Court considered the proportionality of regulations
banning the advertising of tobacco products and their compatibility with article 10 of
the European Convention. The regulations, passed under the Tobacco Advertising and
Promotion Act 2002 provided limited exception to the overall ban provided by that Act
and were challenged as an interference with the applicant’s right to commercial speech.
It was held that whilst any restriction on freedom of expression had to be
proportionate, there were areas in which the courts had to be particularly wary of
imposing its own value judgments upon a legislative scheme. The proportionality of the
regulations had to be judged in the context that the protection of health was a far
reaching social policy; that restrictions on the right to commercial speech had to be
justified and that the need to restrict tobacco advertising was not challenged. The
objective of the regulations was much wider than the protection of children and in the
court’s view was sufficiently important to justify limiting a fundamental right. The
measures were rationally connected and were proportionate to promoting health by
restricting advertising at the point of sale.

In A and others v Home Secretary, The Times, 17 December 2004 (dealt with below
under Miscellaneous), the House of Lords held that the detention of foreign nationals
suspected of terrorism under s.21 of the Anti-Terrorism, Crime and Security Act 2001
was a disproportionate response to the threat of terrorism and not strictly required by
the exigencies of the situation. The powers thus fell outside the right to derogate under
article 15 of the Convention and were thus in violation of article 5, protecting individuals
against arbitrary arrest. Lord Bingham held that where the conduct of government was
threatened by serious terrorism difficult choices had to be made and that while any
decision of a representative democratic body commanded respect, the degree of
respect would be conditioned by the nature of the decision made. The traditional
Wednesbury approach was no longer appropriate and the domestic courts themselves
had to form a judgment whether a Convention right was breached, the intensity of the


                                            46
review being greater under proportionality. Even in terrorist situations the Convention
organs were not willing to relax their supervisory role. Given the importance of article 5,
judicial control of the executive's interference with individual liberty was essential and
the courts were not precluded by any doctrine of deference from scrutinising such
issues. Although the judiciary must keep to their proper limits, the Attorney-General's
allegation that the courts interference would be undemocratic was inappropriate, given
the content of s.6 of the Human Rights Act and the courts' expressly conferred role
under ss.2 and 3 of the Act to consider the case law of the European Court and to
interpret legislation compatibly with Convention rights. This did not affect
parliamentary sovereignty as the legislation would stand, and the 1998 Act gave the
courts a wholly democratic mandate.

In response to that decision, the government has proposed a number of measures, which
would allow the house arrest or controlled supervision of those suspected of terrorist
activities: see now Prevention of Terrorism Act 2005 and Terrorism Act 2006.

In Machado v Home Secretary [2005] EWCA Civ 597, the Court of Appeal held that
upon a challenge to an administrative decision that involved issues of public policy as well
as human rights issues that decision required a more intensive review than the test of
whether the decision maker's response was within the range of reasonable responses
open to it. In a case where someone was being deported because they posed a threat to
the public interest an immigration appeal tribunal should address the issue of whether
his conduct manifested a present and serious threat to the public interest and, if so,
whether it was proportionate to deport him. However, in M v Home Secretary, 19 May
205, it was held that a court should ask whether a reasonable tribunal could have
concluded that the imperative of proportionality demanded that the decision be made in
the claimant's favour.

In R (Baiai and others) v Home Secretary and another [2006] EWHC 823 (Admin) it was
held that the Home Secretary’s regime of limiting the right to marry for those who
were subject to immigration control was disproportionate and thus in violation of
articles 12 and 14 of the Convention. The policy required those who wished to undertake
a marriage to obtain approval from the secretary unless they were marrying according to
the rites of the Church of England. The High Court held that the regime had a
legitimate aim – the prevention of sham marriages for the purpose of avoiding
immigration control – but held that the policy adopted an illogical criterion that was not
related to that legitimate aim and neglected to consider the length of the relationship.
Moreover it was discriminatory contrary to article 14. The decision was upheld by the
Court of Appeal: The Times, June 26 2007 where it was held that the scheme failed the
test of proportionality because it acted as a blanket interference with the right to
marriage based on the presumption that all marriages entered into by persons with less
than 6 months leave to stay were not genuine. For the scheme to be proportionate it had
to properly investigate whether each marriage was a sham and that the scheme came
close to identifying cases that fell into that target. The scheme was as equally flawed
when applied to illegal entrants as the secretary was relying on the same flawed criteria
to justify his scheme.

In Tweed v Parades Commission of Northern Ireland [2006] UKHL 53 the House of
Lords held that the disclosure of documents in judicial review proceedings should be
ordered more readily when the claimant is challenging the action on grounds of


                                             47
proportionality and breach of Convention rights. However the proportionality issue would
not automatically give rise to disclosure and would have to be balanced with and against
other factors

In Huang v Home Secretary [2007] UKHL 11 the House of Lords held that a special
immigration tribunal hearing appeals against decisions relating to the right to enter or
remain are not performing a secondary review of the decision on the grounds of
illegality, irrationality etc, but had to decide whether the decision in question was lawful
and compatible with the European Convention. Moreover, the tribunal did not have to
apply a test of exceptionality to challenge the decision. The giving of weight to the
original decision as not deference: it was the performance of the ordinary judicial task
of weighing up competing interests and according appropriate weight to the judgment of
a person with responsibility and access to special sources of knowledge. With respect to
proportionality, it was not sufficient to apply the test in de Freitas, it must also strike a
fair balance between individual and community rights. (See Amos, [2007] EHRLR 679)

In R (Wilson) v Wychavon DC, 6 February 2007 the Court of Appeal held that the least
restrictive approach of measuring proportionality did not have to be applied in every
case. There may be cases where there is a less restrictive approach which could have
been adopted, yet still the measure is necessary and proportionate. In this case the
different treatment accorded to caravans and buildings with respect to the power to
issue stop notices to compel the following of planning law was justified under article 14
and proportionate. A wide area of judgment would be given with respect to measures
intended to achieve social and economic benefits.

In Belfast City Council v Miss Behavin’ 2007] 1 WLR 1420 the House of Lords held that
the decision to refuse the claimants a sex shop license was not disproportionate and in
breach of their Convention rights. Their rights were engaged a low level and the council
were better placed than the courts to make the decision. The Court of Appeal had erred
in taking into account the quality of the decision-making process rather than the
substantive outcome of that decision – Begum applied.

The Act’s horizontal effect

In X v Y, The Times, 16 June 2004, the Court of Appeal attempted to clarify the
application of the Human Rights Act to unfair dismissal disputes between employees and
employers in the private sector. The employee, a probation worker, had been dismissed
for receiving a caution for an indecency offence committed in a public toilet with
another man. He claimed unfair dismissal and asserted that the dismissal was in breach
of his Convention rights under articles 8 and 14 of the Convention and that the test of
unfairness contained in the Employment Rights Act 1996 should be interpreted in the
light of those rights by using s.3 of the Human Rights Act. The Court of Appeal held
that the tribunal were entitled to find that articles 8 and 14 were not engaged because
the act in question was not part of his private life and that the real reason for the
dismissal was his failure to disclose the criminal caution. However the Court of Appeal
held that the 1998 Act might have an effect on unfair dismissals in the private sector in
appropriate cases. In the Court’s view it would not normally be fair to dismiss an
employee in violation of the enjoyment of his Convention rights, although if there was a
justifiable reason for his dismissal under the 1996 Act the tribunal should consider
(Article 8) in the context of the application of s.3 of the 1998 Act to the provisions of


                                             48
the 1996 Act. A tribunal should not uphold a dismissal that was clearly incompatible with
the Convention rights of the employee.

But note, in Copsey v WWW Devon Clays Ltd, The Times, August 25 2005 it was held
that article 9 had limited application when considering whether a dismissal of an
employee for refusing to work Sundays was fair. The majority of the Court of Appeal
held that article 9 was not engaged and that the decision to dismiss had to be judged on
the statutory provisions relating to unfair dismissal. (See Collins, ‘The Protection of Civil
Liberties in the Workplace’ (2006) MLR 619)

See also, Wainwright v Home Office and Wainwright v United Kingdom, dealt with under
PRIVACY, below.

The Act, article 6 and the Right to a fair trial

In Matthews v Ministry of Defence [2003] 3 WLR 435, the House of Lords confirmed
that the barring of a civil action under s.10 of the Crown Proceedings Act 1947 was not
an interference with article 6 of the Convention. The bar was part of the legal system’s
substantive law and not a procedural limitation on the enforcement of a legal claim. See
also Manjera v Ministry of Defence, The Times, July 12 2003, where the Court of
Appeal held that a soldier could not claim a violation of article 6 because his claim for
race discrimination was barred under the Race Relations Act 1976 because as a public
servant he should have made a complaint to his officer. (See also Wilson v First County
Trust, above)

In R (Harrison) v Secretary of State for the Home Department, The Times, April 15
2003, the Court of Appeal held the right to be recognised as a British citizen was not a
‘civil right’ so as to engage article 6 of the Convention. Further, in Begum v Tower
Hamlets LBC [2003] 2 WLR 388, following the principles in Alconbury, held that the
opportunity to appeal against housing decisions by internal review and appeal to the
county court on appoint of law satisfied article 6 of the Convention. See also R (Keyhoe)
v Secretary of State for Work and Pensions, The Times, May 21 2003 – the right of
judicial review of the Child Support Agency’s decisions was compatible with article 6.

In Sheldrake v DPP [2003] 2 All ER 497, the Divisional Court held that the reverse onus
of proof in s.5(2) of the Road Traffic Act 1988 could be read down under s.3 of the
Human Rights Act 1998 so as to impose an evidential burden of proof on the defendant,
which was in breach of article 6(2) of the Convention guaranteeing the presumption of
innocence. Also, in Attorney-General’s Reference (No 4 of 2002), The Times, April 1
2003, the Court of Appeal held that the offence under s.11 of the Terrorism Act 2000
was compatible with article 6(2) of the Convention. The offence – of belonging to a
proscribed organisation – did impose a legal burden of proof on the accused, but was
nevertheless compatible with articles 6 and 10 because s.11(2) contained a defence
which went to the question of liability under that provision. Alternatively, in the Court’s
view the provision was proportionate and Parliament was entitled to impose a legal
burden in such cases.

Those cases have both since been appealed to the House of Lords. The cases were heard
together and in Sheldrake their Lordships held that s. 5(2) of the Road Traffic Act
imposed a legal burden on an accused and was not in violation of article 6(2). The burden


                                             49
placed on the defendant to prove that he was not driving pursued a legitimate aim (the
prevention of death and other injury) and it was not in such circumstances objectionable
to criminalise a defendant’s conduct without requiring the prosecutor to prove criminal
intent. The defendant would have full opportunity to show that there was no likelihood
of his driving. In Attorney-General’s Reference (No 4) the House of Lords held that
Parliament had intended that s.11(2) impose a legal burden on the defendant and that in
such a case a conviction would be a disproportionate breach of article 6. However, that
section could be read down to impose an evidential burden only.

See also Norwood v DPP, below under Freedom of assembly, on the compatibility of
ss.5 and 6 of the Public Order Act with article 6(2).

In R v G and Home Secretary [2006] EWCA Crim 821 the Court of Appeal held that the
conviction of a 15 year old boy for rape under s.5 of the Sexual Offences Act 2003 was
not incompatible with article 6 of the Convention, despite the lack of defence of
reasonable belief that the victim was over 13. Although a conviction for an absolute
offence might be incompatible with other articles of the ECHR, it did not follow that
the trial for such an offence was unfair under article 6

The Privy Council upheld the principles of legal professional privilege in B v Aukland
District Law Society, The Times, May 21 2003. In this case it was held that the
legislative power to require a solicitor facing investigation to produce documents for the
purpose of conducting the inquiry did not extend to override a claim to legal professional
privilege. The Privy Council referred to the decision of the House of Lords in R (Morgan
Grenfell) v Special Commissioner of Income Tax [2003] 1 AC 563. Such privilege would
continue in the absence of clear statutory words to the contrary.

In R (Ullah) v Secretary of State for the Home Department [2003] EWCA Civ 1366, the
Court of Appeal held that although a decision on entry into the country did not engage
Article 6 of the European Convention, as a matter of common law the claimant was
entitled to a fair trial and that the burden of proving that leave to enter was obtained
by fraud was a high one: R v Home Secretary, ex parte Khawaja [1984] AC 74 applied.

In Polanski v Conde Nast Publications, The Times, November 18 2003, the Court of
Appeal held that there had been no violation of article 6 of the European Convention
when a claimant in a defamation action had been refused permission by the court to give
evidence by video link instead of being ordered to give evidence in court; he had
requested such to avoid the risk of being arrested in the United Kingdom and deported
to the United States. The Court of Appeal held that the courts’ general policy should be
to discourage litigants from escaping the normal legal process. In the present case it
had been legitimate and proportionate for the court to insist that he attend court to
give evidence and such insistence was not, therefore, in violation of article 6. The
decision was overturned on appeal to the House of Lords. In Conde Naste Publications v
United Kingdom (App No 29746/05) it was held that it was not in violation of the
magazine’s rights to allow a claimant in a defamation action to give information via
vide link. Such a process assisted the principle of the equality of arms and helped
the claimant in bringing his case before the court. The deprivation of such facilities
would destroy the guarantee of equality of treatment and there had been no
disadvantage to the applicants as a result of the admission of that evidence.




                                            50
In Hammerton v Hammerton [2007] EWCA Civ 248 the Court of Appeal held that in the
absence of unreasonable behaviour on the part of the litigant a person who was liable to
be sent to prison for contempt of court was entitled to legal representation under
Article 6 ECHR

In R v O’Connor and Mirza [2004] UKHL 2, the House of Lords held that the common law
rule which declared that evidence of jury deliberations was inadmissible to question the
legality of a criminal trial was to be applied in all cases and was not inconsistent with
article 6 of the European Convention on Human Rights. The rule was there to protect the
secrecy of jury deliberations, and attempts to ignore the rule to allow evidence of a
wrongful conviction should be resisted by the courts. Thus, s.8(1) of the Contempt of
Court Act 1981 could not be read to allow such deliberations, but was not incompatible
with article 6. However, the trial court was allowed to investigate allegations of bias
made known to it during the trial and would not be in contempt of court in so doing.

In R (Kehoe) v Secretary of State for Work and Pensions [2005] UKHL 48 the House of
Lords held that there had been no violation of article 6 when domestic legislation did not
give her a right to enforce the Child Support Agency’s duty to ensure that her former
husband paid maintenance. The Act gave no right of enforcement to the spouse and
article 6 could not create a substantive right where there was no legal basis for such in
domestic law. Baroness Hale dissented, opining that children had a right to be
maintained which engaged article 6, and by not enforcing that right the CSA had failed
in their duties as a public authority under s.7 of the Human Rights Act 1998.

In A v Hoare, The Times, 27 October 2005, it was held that the six-year limitation
period for bringing actions in tort was not incompatible with article 6 of the ECHR
(Stubbins v UK applied)

See also R v Crown Court ex parte Times Newspapers [2006] EWCA Crim 04 – the
conducting of an appeal without a hearing and restricting public access to a criminal trial
on grounds of national security was not incompatible with article 6. The order was
justified because of the substantial risk to national security if the hearing was held in
public.

See also MB v Home Secretary, dealt with under declarations of incompatibility, above.

In R (Wright and others) v Health Secretary [2006] EWHC 2886 it was held that s.82
of the Care Standards Act 2000, allowing for the listing of care workers thought
unsuitable to provide care, was incompatible with articles 6 and 8 of the Convention. The
provision only allowed workers to appeal against such listing nine months after the listing
and judicial review of that decision was not thought to be an adequate remedy. On appeal
to the Court of Appeal [2007] EWCA Civ 999 it was held that a declaration was not
required as the 2000 Act could be read as requiring the secretary of state to give care
workers the right to make representations to him before a decision was made to
provisionally place the worker on a list (unless he reasonably considered that the delay
would place the would place a vulnerable adult at risk of harm)

In Stretford v FA [2007] EWCA Civ 238 the Court of Appeal held that the rules of the
FA allowing disputes to be referred to arbitration were compatible with article 6,
further the parties had agreed to waive their right to a public hearing.


                                            51
Victims

In Woodin v Home Office, 31 July 2006 it was held that the prisoner was not a victim
under s.8 of the HRA when his legal correspondence had been inadvertently opened by
the prison authorities. Neither was as there had been no deliberate flouting of the
rules, the authorities had apologised, the delays were not substantial and no damage had
been caused.

Damages and the Human Rights Act

In Somerville v Scottish Ministers [2007] UKHL 44 it was held that the time bar of 12
months included in s.7(5) of the Human Rights Act 1998 did not apply to a claim for
damages for just satisfaction in respect of an act by a member of the Scottish
executive which was outside his devolved competence by reason of it being incompatible
with a Convention right. In such a case the victim could sue under the Scotland Act
1998, which did not include the time bar contained in the Human Rights Act 1998

In R (KB) v Mental Health Review Tribunal, The Times, March 5 2003, it was held that
damages for breach of human rights under the Human Rights Act should be no lower
than for a comparable tort and should, as afar as possible reflect the English level of
damages. The court awarded damages of between £750 and £1,000 to patients whose
release had been delayed in breach of article 5(4) of the Convention. However, it was
held that damages would not be granted automatically for violation of that article, and
that the courts should follow the principle of just satisfaction as practiced by the
European Court.

Again, in R (N) v Secretary of State for the Home Department, The Times, March 7
2003, it was held that damages under the Act could be granted for omissions or
inactivity of public authorities that caused breaches of Convention rights. In this case
the court granted damages to the claimant when the Home Office had mishandled the
claimant’s asylum application, thus depriving him of income support and related benefits.
This decision was, however, overturned by the Court of Appeal ([2003] EWCA 1406),
where it was held that although article 8 of the Convention was capable of imposing
positive obligation to provide such support, maladministration would only infringe article
8 where the consequences were serious.

See also Anufrijeva v London Borough of Southwark [2004] 2 WLR 603, where the Court
of Appeal held that damages for breach of article 8 of the Convention were not
recoverable automatically, and would only be awarded when necessary to give just
satisfaction. Breach of a public law duty would not be sufficient on its own and there
would have to be a degree of culpability together with foreseeable harm.

In Wainwright v Home Secretary (see Privacy, below), the House of Lords held,
obiter, that it was doubtful whether damages could be claimed under the Human Rights
Act 1998 for invasion of privacy by a public authority which had caused distress to a
person, where that act was merely negligent.

In R (Greenfield) v Home Secretary, The Times, 18 January 2005, the House of Lords
held that when domestic courts are considering awarding compensation under s8 of the
Human Rights Act they should take into account the case law of the European Court,



                                            52
although they are not bound to follow such decisions. In particular, the courts should
apply the principle applied by the European Court in cases where there has been held to
be a breach of article 6, to the effect that a finding of a violation of article 6 is
normally just satisfaction in itself, and that it was not appropriate for such awards to be
comparable to tortuous awards.

See Compton, Claiming damages: a public law perspective (2006) Legal Action (March) 23

See R (Hirst) v Secretary of State for the Home Department and another , The Times, 4
July 2005, discussed in Prisoners’ Rights, below, where the applicant was awarded
£1,500 for a failure to provide reasons for his recall to prison, which led to a violation
of article 5(4).

In Van Colle v Chief Constable of Hertfordshire [2006] EWHC 360 (QB) it was held that
that there had been a violation of articles 2 and 8 when the defendant had taken
inadequate steps to safeguard the life and private and family life of a prosecution
witness (G) from attacks by suspects in a forthcoming trial. The court awarded £15,000
for G’s distress suffered before his death and £35,000 for the distress suffered by
his mother. It was held that in deciding the level of damages the court should consider
the character and conduct of the parties and the extent and seriousness of the breach,
taking into account the negligence of the police officer, the distress suffered by the
death victim and the mother, and the fact that there had been no apology from the
force or the individual officer, who had faced minor disciplinary charges.

The High Court has awarded £50,000 damages under the Act to an asylum seeker who
was detained unlawfully pending deportation; see The Times, 8 December 2006.

In Re P [2007] EWCA Civ 2 the Court of Appeal held that damages were not available to
a mother who had not been consulted before a care plan with respect to her
rehabilitation had been abandoned. In the Court’s view the breach was purely procedural
and would not have materially affected the mother’s position, who was clearly not
capable of participating constructively in the procedure. However, it held that damages
were available in appropriate cases where parents are not involved in decisions affecting
family life.

In Boyle v Criminal Cases Review Commission, 7 March 2007 it was held that even if a
prisoner could prove that there had been an unreasonable delay by the Commission in
referring his case to the Court of Appeal, it would not be appropriate to grant damages
under s.8 of the Human Rights Act.

In R (Richards) v Home Secretary, 28 January 2004 it was held that damages could be
given under article 5(5) for unlawful detention of a prisoner even though the detention
took place before the European Court’s decision to the effect that such detention was
unlawful: Stafford v UK




                                            53
Miscellaneous:

Deportation and the risk of human rights abuses

In R v Special Adjudicator, ex parte Ullah, The Times, December 18 2002, the Court of
Appeal held that the principle in Soering v United Kingdom that engaged the liability of a
deporting or extraditing state when there was a real risk of the individual being
subjected to a violation of article 3 of the Convention, did not apply to cases where
there was a risk of religious persecution on return. (See also Serpet and another v
Secretary of State for the Home Department, The Times, March 21 2003, where it was
held that conscientious objectors to compulsory military service were not entitled to
refugee status under the Geneva Convention). However, that decision in Ullah was
questioned by the House of Lords, The Times, 18 June 2004, where it was held that an
article other than article 3 (in this case article 9) could be engaged in relation to the
removal of an individual where the anticipated treatment in the receiving state would be
in breach of the requirements of the Convention, but did not meet the threshold of
article 3. On the facts the House of Lords held that the applicants had failed to show
evidence supporting their claim of religious persecution. Similarly, in Razgar v Home
Secretary, The Times, 18 June 2003, the House of Lords held that the rights under
article 8 of the Convention could be violated when a deportation might cause an effect
on his mental health, even where the treatment did not violate article 3.

In Othman (Jordan) v Secretary of State for the Home Department [2008] EWCA
Civ 290 it was held that it would be unlawful to deport a person to a country where
they would face a retrial based on evidence that may have been gained via torture
(A v Home Secretary (No 2) applied. However, it would not have been so unlawful
simply because he would have faced a trial at the hands of a court that was
conceded not to be independent and impartial. Such a factor would no have led to a
flagrant violation of article 6.

In AS (Libya) v Secretary of State for the Home Department, The Times, April 16
2008 it was held the Appeals Commission were entitled to find that the deportation
of two suspected terrorists to Libya would have been in breach of article 3.
According to the Court of Appeal the correct test was whether there were
substantial grounds for believing that they would face a risk of suffering contrary
to art 3; that meant no more than there must be a proper evidential basis for
concluding that there was such a real risk.

In N v Secretary of State for the Home Department [2003] EWCA Civ 1369, the Court
of Appeal held that there had been no violation of article 3 of the European Convention
when a person had been returned to Uganda when such a return would have deprived her
of life-saving treatment for her AIDS condition. The Court of Appeal distinguished this
case form D v United Kingdom (1997) 24 EHRR 423, which was, in the court's opinion
both exceptional and extreme. See the House of Lords decision, discussed under Article
3 the European Convention on Human Rights, above

In R (Gedara) v Home Secretary, July 10 2006 it was held that in assessing whether a
person was at sufficient risk of ill treatment in another country it was permissible to
take into account the fact that that person was a police officer and thus faced a
naturally heightened risk of harm in order to provide security to the public.


                                           54
In R (S and others) [2006] EWCA Civ 1157 it was held that the secretary of state’s
refusal to give temporary admission to the claimant’s (2 individuals who had entered the
UK by hi-jacking a plane and then applying for asylum) was unlawful. The claimants had
been recognised as individuals whose Convention rights were under threat if returned to
Afghanistan (they were members of a group opposed to the Taliban regime) and that
status could not be taken away by the secretary devising a new status outside the
existing statutory scheme.

Education and human rights

In R (Williamson) v Secretary of State for Employment [2003] 1 All ER 385, the Court
of Appeal held that teachers and parents could not claim that the prohibition of
corporal punishment interfered with their Convention rights under article 2 of the First
Protocol and article 9. In the Court’s view, although the belief in corporal punishment
was a recognisable belief under those articles, the prohibition of such punishment in
schools did not deprive the parents of those beliefs as they could carry out such
punishment in the home. Accordingly, the teachers in this case could not claim any right
over and above that possessed by the parents. On appeal, the House of Lords refused to
declare the Education Act 1996 incompatible with articles 9 and protocol No 2 of the
First Protocol: R (Williamson) v Secretary of State for Education, The Times, 25
February 2005. Although, in their Lordships' view, the articles were engaged, Parliament
was entitled to make an exception to those rights on the basis that they interfered with
the child’s rights not to be subject to inhuman and degrading treatment and were
entitled to have a broad blanket rule on prohibition.

See now s.58 of the Children Act 2004: Keating, Protecting or punishing children:
physical punishment, human rights and English
law reform (2006) LS 394.

In R (Begum) v Denbigh High School, The Times, June 18 2004, it was held that the
insistence that a student wear school uniform that precluded the wearing of the Muslim
jilbab was not in violation of article 9 or article2 of the First Protocol to the European
Convention. In the court’s view the school had not excluded her from the school as she
had the choice to attend in the requisite uniform or to stay away from school. In any
case, if there had been any exclusion, she had been excluded for refusing to wear the
requisite uniform and not for the manifestation of her religious beliefs. The policy had a
legitimate aim and was proportionate under article 9(2) of the Convention. However, on
appeal The Times, March 4 2005), it was held that there had been a violation of those
articles. Contrary to the findings of the High Court, the claimant had clearly been
excluded and excluded on religious grounds that engaged articles 9 and article 2 of the
First Protocol. The school had not put forward any convincing reason for the ban and
thus the interference was not justified; noted by Idriss, M in [2005] Judicial Review,
296. The case has been heard in the House of Lords and judgment was delivered on 22
March. The House of Lords overturned the Court of Appeal’s decision and restored the
trial judge’s order. According to the majority (Birkenhead and Hale dissenting), there
has been no engagement of article 9 in this case as B' family had chosen a school outside
the catchment area and there was no evidence to show that there was any real difficulty
in her attending one of the three schools in her area that permitted the wearing of the
'jihab'. Further, the 'shalwar kamazee' had been worn by her without objection and her


                                           55
beliefs modified only in accordance with her and her parent's consent. Accordingly,
there had been no interference with her right to manifest her religion as she had
chosen a school where such a policy existed; the two-year disruption to her schooling
was the result of her unwillingness to comply with a rule to which the school was entitled
to adhere. The Court of appeal had erred in applying the doctrine of proportionality
instead of inquiring first whether a convention right had been violated. In any case the
school was fully justified in acting as it had done and it would be irresponsible of any
court, lacking the experience background and detailed knowledge of the head teacher,
staff and governors to overrule their judgement on a sensitive matter.

The House of Lords also held that Begum had not been denied the right to education
under Article 2 of the First Protocol. The disruption to her schooling had been caused
by her unwillingness to comply with a rule that the school were entitled to adhere to,
and of her failure to secure prompt admission to another school where her religious
convictions could be accommodated.

On the same day the House heard the appeal in the case of Ali v Lord Grey School Head
Teacher and Governors [2006] UKHL 14. In that case it was held (Baroness Hale
dissenting) that Article 2 of the First Protocol did not confer a right to be educated at
a particular school, but rather conferred a right not to be denied access to the general
level of educational provision available in the state. On the facts of the case a pupil had
not been excluded from school education in breach of the Convention where he had
chosen not to take up the school's invitation to attend a meeting to re-admit him, nor its
offers to o provide work for him to do from home

See also the decision of the European Court of Human Rights in Sahin v Turkey, decision
of the European Court 29 June 2004, dealt with under The European Convention
on Human Rights, above. (See Knights, Religious Symbols in the School: freedom of
religion, minorities and education [2005] EHRLR 499, and Poole, 'Of Headscarves and
Heresies' [2005] PL 685).

In R (X) v Head teachers and governors of Y school , 21 February 2007 the High Court
held that there had been no violation of article 9 when a girl had been refused
permission to wear a full veil (showing only her eyes) to school. Although her article 9
rights were engaged, there had been no violation of that rights (Begum, above, applied).
Conversely, any violation was justified under article 9(2) for the protection of the rights
of others and for public safety. Neither had there been a legitimate expectation arising
from the fact that her three sisters had in the past been allowed to wear the veil.

See also R (Playfoot) v Millais School, The Times, July 23 2007 – refusal to allow
schoolgirl to wear a chastity ring did not breach her article 9 rights.

In R (O) v Hackney LBC, 4 December 2006 the High Court held that the local education
authority and an educational trust had discharged its duties under the ECHR and the
Education Act 1996 by offering secondary school places that met the child’s assessed
educational needs. Article 2 of Protocol 1 set a relatively low threshold with respect to
the quality of the education provided and all the schools offered to the applicant met
that minimum standard.




                                            56
In Khan v Royal Air Force [2004] EWHC 2230 QB it was held that a claim to
conscientious objection was not protected under article 9 of the Convention.
Consequently, article 9 could not provide a defence to a charge of being absent without
leave. In any case there was provision for exemption on grounds of conscientious
objection and the applicant had not made use of that facility. Such a procedure was
‘prescribed by law ‘for the purposes of justifying any interference with article 9 had
that right been broken.

In Copsey v WWW Devon Clays Ltd, The Times, August 25 2005 it was held that an
employer was entitled to change his work pattern to include Sunday working, despite
that interfering with the employee’s right to manifest his religion under article 9 of the
ECHR. Such a decision, according to the majority, did not engage article 9 because the
case law of the Convention stated that the individual’s freedom had not been interfered
with as they could resign.

Asylum Seekers and human rights

Much controversy arose from the decision of Collins J in R (Q and others) v Secretary
of State for the Home Department, The Times, February 20 2003 that the refusal of
support for asylum seekers under s.55 of the Nationality, Immigration and Asylum Act
2002 was unlawful because individual circumstances had not been taken into
consideration. The court also found a violation of article 6 because there was no appeal
to an independent body against such determinations. On appeal to the Court of Appeal
(The Times, March 19 2003) it was held that the procedure adopted by the Home
Secretary for deciding whether asylum seekers had made their claims as soon as was
reasonably practicable was unfair, but that if the Secretary of State took the
necessary steps to rectify that system, there would be no violation of article 6 and thus
there was no need for a declaration of incompatibility. The Court also held that there
was no breach of article 3 or 8 of the Convention simply because the claimants could
prove that there was a real risk that he would be left destitute and thus subjected to
inhuman or degrading treatment; it was not unlawful for the secretary to decline to
provide support unless and until it was clear that charitable support had not been
provided and that the individual was not capable of fending for himself such that his
condition verged on the degree of severity described in the case law of the European
Court (Pretty v UK).

Also, in R (S and others) v Secretary of State for the Home Department , The Times,
August 6 2003, it was held that the refusal by the Home Secretary to relieve asylum-
seekers of the consequences of destitution – including begging for food and sleeping
rough - amounted to a violation of article 3. However, this decision was overturned on
appeal: [2003] EWCA Civ 1285. Here the Court of Appeal held that the applicant’s
condition verged on inhuman and degrading treatment. He had shelter, sanitary facilities
and some money for food and although he was not entirely well physically, he was not so
unwell as to need immediate treatment. This decision was upheld by the Court of Appeal
(decision of the Court of Appeal 23 September 2003 [2003] EWCA Civ 1285), where it
was confirmed that an asylum seeker who had shelter, money for food and sanitary
facilities could not be regarded as being subjected to ill treatment within article 3, even
where that person was not physically well.




                                            57
Further, in R (Limbuela) v Secretary of State for the Home Department , decision of the
High Court 4 February 2004, it was held that evidence that the applicant would have to
sleep rough, would have no reliance on charitable donations and would have access to
irregular food and washing facilities, particularly in winter, was sufficient to cross the
threshold necessary to find a violation of article 3 of the Convention. In coming to that
decision the court refused to follow the decision of Newman J in R (Zardasht) v Home
Secretary, decision of the High Court 23 January 2004, where the judge felt that there
was insufficient evidence of the applicant’s alleged destitute status being sufficient to
constitute a violation of article 3. The decision in Limbuela was followed in R (Adam) v
Secretary of State for the Home Department, decision of the Administrative Court 17
February 2004 and R (Tesema) v Secretary of State for the Home Department, decision
of the Administrative Court 16 February 2004, and the High Court’s decision in Limbuela
was upheld by the Court of Appeal on 21 May 2004: The Times, May 26 2004. The Home
Secretary appealed against these decisions, but on 3 November the House of Lords
dismissed the appeals: R (Adam, Limbuela and Tesema) v Home Secretary [2005] UKHL
66. Their Lordships held that as soon as an asylum seeker made it clear that there was
an imminent prospect of a violation of article 3 because the conditions that we was
having to endure were on the verge of reaching the necessary degree of severity, he had
the power under the Immigration and Asylum Act 1999, and a duty under the Human
Rights Act 1998, to avoid that situation. The act of withdrawing support from a person
who would otherwise become destitute was intentionally inflicted and one for which the
secretary became responsible. The withdrawal of support would not necessarily violate
artciel3 but it would do so once the margin was crossed between destitution and inhuman
and degrading treatment. The test was whether the treatment the person was
subjected to by the entire package of restrictions and deprivations could properly be
described as inhuman or degrading. The threshold might be crossed if a person with no
means of support was by the deliberate act of the state denied shelter, food or the
most basic necessities of life

In EM Lebanon v Home Secretary [2006] EWCA Civ 1531 the Court of Appeal held that
the text for granting asylum was whether the applicant’s article 8 rights would be
completely denied or nullified, not whether they would be severely restricted: R (Ullah)
v Special Adjudicator applied).

In AJ (Liberia) v Home Secretary [2006] EWCA Civ 1736 it was held that where a
tribunal had no evidence to substantiate its finding that the applicant would receive
adequate treatment abroad its decision was flawed and should be quashed.

In Nasseri v Home Secretary [2007] EWHC 1548 it was held that provisions passed
under the Asylum and Immigration (Treatment of Claimants) Act 2004 were
incompatible with article 3 because they precluded the secretary and the courts from
investigating the procedures of particular states in ordering deportation to an unsafe
country and thus a potential breach of article 3.

Detention and human rights

In R (Saadi) v Secretary of State for the Home Department [2002] 1 WLR 3131, the
House of Lords had held that the temporary detention of asylum seekers pending the
determination of their asylum claims was not in violation of article 5. (See the main text
for details) However, in Nadarajah v Secretary of State for the Home Department


                                            58
[2003] EWCA (Civ) 1768, it was held that the detention of asylum seekers pending their
removal from the country removal was unlawful and in violation of article 5 of the
Convention where the asylum seekers had given notice to the Home Secretary of their
intention to initiate judicial review proceedings. Although the Home Secretary was
entitled to have a policy encouraging expedition in appealing or applying for judicial
review, the Home Secretary’s policy was not generally known and accessible. In this case
the applicant had given clear notice of his intention to apply for judicial review and thus
his deportation was not imminent. In such a case his detention was in violation of article
5(1)(f) of the Convention and thus lacked legality. The decision in Nadarajah was
followed in R (Konan) v Secretary of State for the Home Department [2004] EWHC 22
Admin; the decision in Saadi was followed in R (Kpandang) v Home Secretary [2004]
EWHC 2130 (Admin) where it was held that the applicant’s detention for a short period
at a detention centre pending the determination of his fast track asylum claim was not in
violation of article 8 of the Convention as it was both necessary and proportionate.
Further, in ID v Home Office [2005] EWCA Civ 38 the Court of Appeal held that
immigration officers did not have immunity from an action in damages for false
imprisonment when it had been established that their decisions to detain were ultras
vires.

In Saadi v United Kingdom, July 11 2006 the European Court held that there had been
no articles 5(1), although a breach of article 5(2) because the applicants had not been
informed of the reasons of their arrest in a language they understood. The case is to be
heard by the Grand Chamber of the European Court shortly. This decision was
confirmed by the Grand Chamber of the European Court of Human Rights on 29
January 2008.

In T v Secretary of State for the Home Department, 18 December 2007 it was
held that the detention of an individual pending deportation in prison rather than in
an immigration removal centre was not contrary to the European Convention. The
claimant had been detained in a secure unit in prison as he was a police informer
and vulnerable to attacks and threats. There was no rule precluding the use of such
prison facilities for persons awaiting deportation and no duty on the state to
provide such facilities in immigration centres. The threshold of article 3 had not
been met in this case and the detention was not contrary to articles 5 or 8 of the
Convention.

In A and others v Home Secretary [2005] 1 WLR 414 the Court of Appeal held that the
detention of suspected terrorists under s.21 of the Anti Terrorism, Crime and Security
Act 2001 was lawful despite the submission that some of the evidence founding the
police’s suspicion of guilt was obtained in violation of article 3 of the European
Convention. In the Court’s view it would be unrealistic to expect the Home Secretary to
investigate each statement relied on to issue a certificate under s.21 with a view to
deciding whether any evidence had been obtained in violation of article 3. Provided he
acted in good faith; recognition of his responsibility for national security was required in
assessing his approach to the available material. See now the decision of the House of
Lords: A v Home Secretary (No 2), The Times, 9 December 2005. The House of Lords
held that evidence obtained by torture was not admissible against a party to proceedings
in a British court irrespective or where, by who and on whose authority the torture had
been inflicted. In coming to that decision, their Lordships referred to the common law
rejection of such practices and both European and United Nations treaties and


                                            59
instruments on torture, and stated that although it was within the power of Parliament
to allow such evidence to be admitted, there was no evidence to suggest that the 2001
Act intended to override the common law and international position. The House of Lords
referred the cases of the detainees back to the Special Immigration Appeals
Commission to consider in the light of their Lordships’ decision. (See Rasiah, Occupying
the moral high ground? (2006) MLR 995; Jenkins, The European legal tradition against
torture [2007] PL 15.

NB The House of Lords (The Times, 17 December 2004) decided by a majority of 8-1,
that the detention of the suspects under the 2001 Act was disproportionate and
discriminatory and thus not justified under article 15 of the Convention, which allows
states to derogate from certain Convention articles (including article 5) in times of was
or other emergency threatening the life of the nation. The majority of their Lordships
accepted that there was such an emergency (Lord Hoffmann dissenting on the basis that
the threat was to individuals and their property and not to the life of the nation as
such). However, the majority (Lord Walker dissenting) held that a right so fundamental
as freedom from arbitrary arrest could not be taken away unless in the most compelling
of circumstances, and that in the present case there was no justification for detaining
one group of persons (foreign persons suspected of terrorism) and not others (British
nationals suspected of the same).

See also MB v Home Secretary and R (JJ) v Home Secretary, dealt with under
declarations of incompatibility, above.

In R (Q) v Home Secretary [2006] EWCA Civ 2690 the Court of Appeal held that there
had been no violation of article 5 when the applicant had been detained for nine months
pending his deportation to Algeria. The applicant had been a master of aliases and the
governments had taken constant steps to verify his identity. Thus, his application for
Habeus Corpus was denied.

In R (B) v Ashworth Hospital Authority, The Times 18 March 2005, the House of Lords
held that the 1983 Mental Health Act authorised a mental patient to be treated for any
mental disorder, and not merely the one for which the patient was detained. His
treatment to deal with other personality traits was not therefore unlawful or in violation
of article 5 of the Convention.

Chapters 6, 7 & 8 - Freedom of Expression

Nature of Free Speech

In Sanders v Kingston, The Times, 16 June 2005 it was held that the disciplining of a
local councillor for making a comment bringing his office into disrepute engaged article
10 of the European Convention. The councillor had made uninformed comments about
deaths in Northern Ireland, calling on the people of Northern Ireland to apologise for
killing soldiers and to hand their heads in shame for involving the English in their own
quarrel. He was disqualified for 2 years as a consequence. It was held that the concept
of failing to treat others with respect, contained within the relevant code, was
sufficiently clear to be prescribed by law and that the claimant had clearly broken that
code. The claimant’s speech did not attract the special protection afforded to political
speech because it was not an expression of his political opinion but merely his, abusive,



                                            60
personal opinion. However, in the light of the fact that the claimant’s re-election had
occurred after the event s, his disqualification was disproportionate and should be
replaced by a one-year’s suspension from holding the office of leader of the council.

See also Livingstone v Adjudication Panel for England [2006] EWHC 2533 (Admin). Ken
Livingstone (London Mayor) had been charged with performing his functions in a manner
that could be regarded as bringing his office into disrepute when he accused a Jewish
reporter of being a concentration camp guard when he left a social function. The High
Court held that s.52 of the Local Government Act 2000 did not extend to conduct of an
officer in his private life; in this case there was no question that L was performing his
functions as mayor. There had been an interference with his free speech which could
not be justified unless he had acted unlawfully or there were otherwise satisfactory
reasons to sanction him. Further the panel had not drawn a distinction between
misconduct which affects the reputation of the man as opposed to the office he
represented.

Section 12 of the Human Rights Act 1998

There is still a good deal of confusion among judges with respect to the status of
freedom of expression under s.12 of the Human Rights Act 1998; some judges insisting
that the section does not require an elevated status for article 10, and others insisting
that s.12 does require the court to give greater weight to free speech. All appear to be
agreed that the starting point is always that any restriction on free speech is unlawful
and needs to be justified on very strong grounds.

In Cream Holdings v Banjaree and another [2003] 2 All ER 318, the Court of Appeal
confirmed that the test for granting interim injunctions that interfered with freedom
of speech was whether the claimant had shown that he had a real prospect of success,
not whether the claimant was to succeed on the balance of probabilities. Section 12 of
the Act did not require the courts to give freedom of expression a higher order than
other convention rights. See Defamation, below. On 14 October, 2004 the House of
Lords heard the appeal in Crown Holdings (The Times, 15 October 2004). It held that
the test under s.12(3) on applications for interim injunctions was whether the applicant’s
prospects of success at trial were sufficiently favourable to justify the making of such
an order in the particular circumstances of the case. Their Lordships stressed that the
purpose of s.12(3) was to emphasise the importance of freedom of expression a the
interim stage and that it set a higher threshold for granting interim orders against the
press than the American Cynamid criteria (the balance of probabilities). However, they
also held that the word ‘likely’ in the section does not mean more likely than not and that
there was no single inflexible test. As a general approach the courts should be very slow
to make such orders where the applicant had not demonstrated that he would probably
succeed at trial, although in some cases a lesser degree of likelihood would suffice.

In Coys Ltd v Autocheris Ltd and others [2004] EWHC 1334 (QB) the Court of Appeal
held that the approach set out in Cream Holdings did not apply to defamation cases.
Further, in Green v Associated Newspapers, October 16 2004, the High Court held that
s.12(3) of the Human Rights Act 1998 was displaced by the rule in Bonnard v Perryman,
where an interim injunction will be refused in cases where the defendant intends to us
the defence of justification and fair comment at the main trial, unless the defence is in
the court’s view bound to fail. The judge held that he was bound by the rule in Bonnard,


                                            61
which was there to protect free speech from prior restraint, but noted that it was
arguable that the rule was inflexible and might need to be modified in the light of s.12
of the Act. Accordingly, his Lordship granted the injunction pending an appeal on this
issue. Two weeks later, the Court of Appeal ([2004] EWCA Civ 1462) upheld the decision
of the High Court and confirmed that the rule in Bonnard v Perryman was not caught by
s.12(3) and the decision in Cream Holdings. The Court of Appeal further held that the
rule was justified in order to protect free speech from prior restraint and thus was not
contrary to article 8 of the Convention.

In Re S (Publicity) The Times, 21 July 2003 the Court of Appeal held that in restraining
the identification of a murderer (the child’s mother) and her victim (the child’s brother)
in order to protect the welfare of a child who was in care, the Court should conduct a
balancing exercise between the child’s right to private life and freedom of expression.
Section 12(4) of the Act did not require the court to give pre-eminence to either article
and the judge had to consider the magnitude of the interference proposed and then
what steps were necessary to prevent or minimise that interference. In the present
case, the murder incident was already in the public domain and anonymity would only have
a mitigating effect. On the other hand, there was a clear and proper interest in knowing
the name of the defendant in the murder trial. Decision upheld in the House of Lords
([2005] 1 AC 593). The decision in Re S was applied in A Local Authority v PD and GD
[2005] EWHC 1832 (Fam) where it was held that that an injunction prohibiting the
naming of a child's father, who had killed his mother, was not, in the absence of
exceptional circumstances, necessary to protect the privacy and best interests of the
child.

See also Torbay BC v News Group Newspapers, dealt with under Confidentiality, below,
and Re LM, dealt with under Privacy.

In A Local Authority v A Health Authority and another [2003] EWHC Fam 2746, it was
held that a local authority should be allowed to publish a report of an investigation into
the management of a home for foster children and vulnerable adults unless a strong case
could be made out against such publication. Dame Butler-Sloss P held that in deciding
whether to grant an injunction prohibiting the report’s publication, the court by virtue
of s.12(4) of the Human Rights Act had to have particular regard to the importance of
freedom of expression. The correct approach was to publish unless that publication
would be so disadvantageous to the children and others that the court was driven to
restrain publication in whole or in part. In the present case the balance came down in
favour of the children and those adults with a disability. However, the owner of the
home had failed to make out such a case and the court did not have jurisdiction to
protect the interests of the NHS.

In BBC v Rochdale MBC [2005] EWHC 2862 the High Court refused to grant an order
prohibiting the disclosure of the identity of 2 social workers who had been involved in a
high profile child abuse case. In the court’s view there was not a sufficiently pressing
need to preserve their identities and their right to private life was overridden by the
need for press freedom and the desire of the victims for open justice.

In E v Channel Four and others [2005] EWHC 1144 (Fam) the court refused an injunction
preventing the broadcast of a television film regarding the life of mentally ill person,
who had consented to the filming and broadcasting. In the Court’s view the Official


                                            62
Solicitor had failed to establish that she did not have the capacity to consent and in any
case he had failed to show that the broadcast would not be in her best interests.
Consequently, he had not shown that he was likely to succeed at full trial, as required by
s. 12(3) of the Human Rights Act 1998.

See also R (Gazette Media) v Teeside Crown Court [2005] EWCA Crim 1983 where the
Court of Appeal overturned an order under the Children and Young Person Act 1933,
prohibiting the identification of the defendant in a child rape case

See also Stone v Kent CC and others [2006] EWHC 1668 (Admin), where it was held the
public interest required publication in full of a report following an independent inquiry
into a person who had been convicted of two murders and one attempted murder, and
who had cooperated with the report.

In Red Dot Technologies Ltd v Apollo Fire Detectors [2007] EWHC 1166 the High Court
held that the Cream Holding test needed to be modified in a case of restraining
comparative advertising where there was insufficient time to establish whether the
claimant was likely to succeed at full trial. In any case the claimant should not be
granted an injunction as the idea in question was already in use and there was a public
interest in such advertising.

In Boehringer Ingelheim Ltd v Vetplus Ltd, The Times, June 27 2007 it was held that
s.12(3) and the test in Cream Holdings applied to prior restraint orders sought for
breach of trade marks.



Obscenity and Free Speech

In Interfact v Liverpool City Council [2005] EWHC 995, it was held that it was an
offence under s.12(1) of the Video Recordings Act 1984 to supply, or to offer to supply,
a video classified as R18 at any other place other than a licensed sex shop. Thus, an
offence had been committed when the proprietors of the shop had sold or offered such
videos by mail or telephone order. Further, the court held that the provisions of the
1984 Act were lawful, necessary and proportionate, existing to make it more difficult to
supply such videos to people under the age of 18.

A new Consultation Paper – Consultation: On the Possession of Extreme Pornographic
Material (2005) - produced by the Home Office - recommends the creation of a new
criminal offence of being in possession of extreme pornographic material. In August
2006, the government announced that they would be introducing a new offence of
possession of violent and extreme pornography (see ‘Mother wins fight for law against
violent porn on the net’), The Times, August 31 2006) See now clause 64 of the Criminal
Justice and Immigration Bill 2007, and McGlynn and Rackley, Striking a Balance [2007]
Crim LR 677.

In R v Kirk (9 March 2006) the Court of Appeal held that a judge had not misdirected a
jury in stating that the words indecent or obscene in s.85 of the Postal Services Act
2000 included that which was shocking and lewd. The words obscene and indecent were
words that were readily understood by a jury and the judge had not misdirected them.
Thus, the appellant’s conviction for sending a package through the post to employees at


                                            63
an animal laboratory, describing it as equivalent to Auschwitz and including a Swastika
was not flawed for that reason.

In R v Porter [2006] EWCA Crim 560 the Court of Appeal held that a person could not
be in possession of indecent photographs, contrary to s.160(1) of the Criminal Justice
Act 1988 if he had deleted the images and could no longer retrieve or gain access to
them.

Clause 68 of the Criminal Justice and Immigration Bill 2007 extend the Protection
of Children Act 1978 to photographs which consist of a tracing or other image,
whether made by electronic or other means.

In O’Connor v United Kingdom (2005) 45 EHRR SE1 (noted by Gillespie [2006] J Crim
Law 127), the European Court held that the term indecency was not so vague as to be in
violation of article 7 of the Convention. Specifically, the fact that the term and its
application to the facts were left to a jury did not violate article 7. The judge had the
power to direct a jury on whether the material was capable in law of being indecent and
this provided sufficient protection to the defendant.

In DPP v Collins [2005] EWHC 1038 it was held that the defendant had not committed
the offence of sending a grossly offensive message contrary to s.127 of the
Communications Act 2003. Although the message (which included crude and derogatory
references to ethnic and racial groups) would have been grossly offensive if the listener
had been from such a group, there was no evidence that he cared who the listener was.
It was also relevant that the messages were to be given to his MP. However on appeal
[2006] UKHL 40 it was held that a reasonable person would have found the message
grossly offensive, judged by the standards of an open and just multiracial society:
appeal allowed.

In Connolly v DPP [2007] EWHC 237 the High Court held that the appellant’s
prosecution under s.1 of the Malicious Communications Act 1998, for sending pictures of
aborted foetuses to pharmacists who sold the after morning pill, was not incompatible
with article 10 ECHR. It was held that protest speech was not excluded from the Act
and that the real question was whether the words or images used were indecent and
grossly offensive, which they were. Although the Act could be read in the light of
article 10, sop as not to allow the creation of an offence when that would be an
unjustifiable breach of article 10, the prosecution in this case was necessary for the
protection of the rights of others. The messge caused undeniable distress and were
aimed at people who could not effectively influence a public debate on abortion. It was
difficult therefore to see how the message could contribute to matter of public debate.
Although they represented her personal and religious views, article 9 did not give
religious expression a higher order than freedom of secular expression included in
article 10.

Blasphemy

See IA v Turkey, 13 September 2005, and Tatlav v Turkey, 2 May 2006, dealt with
under Article 10, European Convention on Human Rights, above.




                                            64
See Kunstler v Austria, 25 January 2007, where it was held that there had been a
violation of article 10 when the applicants’ painting – depicting crude sexual images
involving political figures and Mother Theresa - was the subject of an injunction and an
action for damages brought by a politician who claimed to have been debased by the
painting. The Court held that although state’s were given a wide margin of appreciation
with respect to obscene and blasphemous material, in this case the painting had depicted
political satire and that the law and the victims should be more tolerant of such
depictions. The Court stressed that the action had been brought to protect individual
reputation and dignity and was not connected with the protection of public morals.

In R (Green) v Westminster Magistrates Court [2007] EWHC 2785 (Admin) it was held
that the Theatres Act 1968 and the Broadcasting Act 1990 provided immunity for
prosecutions for the common law offence of blasphemy. In any case the subject matter
of the attempted private prosecution – the staging and broadcast of Jerry Springer, the
Opera – was not an attack on the Christian religion but an attack on the television star
himself.

Clause 77 of the Criminal Justice and Immigration Bill 2007 proposes the abolition
of the common law offences of blasphemy and blasphemous libel. It is unsure
whether this will affect the duties and powers of regulatory agencies such as the
Vide Appeals Committee and broadcasting authorities in respect of their right to
uphold standards of taste and decency. See Parpworth, The Abolition of the
Blasphemy Laws (2008) 172 JP 164.

Broadcasting controls and free speech

In R (Quintaville) v BBC, The Times, May 16 2003, the House of Lords overturned the
decision of the Court of Appeal, which had held that the BBC had acted unlawfully in
banning ProLife's proposed election broadcast on the grounds that it portrayed graphic
footage of abortions. The House of Lords held that the BBC were entitled to come to
the conclusion that the broadcast should be banned on the grounds that it offended
against good taste and indecency and that the courts should be reluctant to interfere
with the broadcasting authority's decision. In their Lordships' view, the BBC's
application of the statutory criteria could not be faulted and there was nothing to
suggest that they had applied an inappropriate standard. The Court of Appeal had erred
and a challenge to the broadcaster's decision had become a challenge to the
appropriateness of imposing a restriction on party broadcasts. The Court of Appeal had
in effect carried out its own balancing exercise between the requirements of political
speech and the protection of the public from being unduly distressed. The decision of
the House of Lords displays remarkable deference to the decisions of statutory bodies,
and, it is submitted, fails to show the same respect to freedom of expression than the
Court of Appeal's judgment.

Defamation

The Right to Bring an Action in Defamation

In Jameel v Wall Street Journal [2004] 2 All ER 92 it was held that article 10 of the
Convention did not justify barring a foreign claimant from seeking a remedy in
defamation simply because they could not prove any financial loss resulting from the


                                             65
alleged defamatory article. In the court’s view the right of journalists to free
expression was not given such a high priority that such foreign corporations should be
denied a remedy that would be available to domestic companies. This was upheld by the
House of Lords, The Times, 12 October 2006, although it was noted that in such cases
the damages awards should be small and kept within ‘modest bounds.’

See further, Jameel and another v Times Newspapers, decision of the Court of Appeal
21 July 2004, on the possible meanings of allegedly defamatory statements, Jameel v
Wall Street Journal, The Times, 14 February 2005, on the defence of qualified
privilege, and Jameel v Times Newspaper [2005] EWHC 1219 (QB) where the High Court
struck out the newspaper’s defence of justification, finding that there did not exist
sufficient grounds for the court to investigate whether the applicant had been
associated with Bin Laden and Al-Queda. In the summer of 2006 the House of Lords
will rule in that case on whether the applicant can sue under domestic law when there
has not been a substantial publication in the UK; appeal from Jameel v Dow Jones [2005]
EWCA Civ 75.

In Zollman v United Kingdom (Application No 62902/00), the European Court rejected
as inadmissible a claim that the immunity for defamation attached to parliamentary
debates was in violation of the applicants’ rights under articles 6 and 8 of the
Convention. The Court followed its previous ruling in A v UK where it had found that such
immunity was necessary in a democratic society of the purpose of upholding democracy
and free speech. In addition, article 13 of the Convention did not guarantee a remedy
allowing a contracting state’s primary legislation to be challenged on the basis that it
was incompatible with the Convention. Contrast Cordova v Italy (2005) 45 EHRR 43 and
De Jorio v Italy (2005) 45 EHRR 42 where it was held that article 6 had been violated
when a state official had relied on immunity when defaming someone outside the
exercise of his parliamentary duties.

In Steel and Morris v United Kingdom, The Times, 17 February 2005, the European
Court of Human Rights held that it was not incompatible with article 10 of the
Convention to allow a multi national corporation to defend its reputation in defamation
proceedings. However, in such a case the law had to ensure that sufficient protection
was given to political protest speech that informed public opinion. In this case the Court
held that there had been a violation of article 6 because of the lack of legal aid available
to the defendants (contrast McVicar v United Kingdom, dealt with in the main text). It
also held that there had been a violation of article 10 because of the applicant’s inability
to fully present their defences in the action, and that the award of damages was
excessive infringement on their right to free speech, even though it had not been
enforced by the claimants. (For the domestic proceedings, see Steel and Morris v
McDonald’s Corp, Court of Appeal 31 March 1999, The Independent, May 10 1999)

In Panday v Gordon, [2005] UKPC 36 the Privy Council held that the Constitution of
Trinidad and Tobago did not prohibit the bringing of libel actions in respect of the
expression of political views, and that no such proceedings were permissible provided
the expression was honest. An absolute right to express such views would be
inconsistent with the right of private and family life. Accordingly, the plaintiff, the
Prime Minister, was allowed to bring an action in damages, with respect to allegations of
misconduct in his business affairs.




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In March 2006, a woman who referred to an MP as a racist bigot and accused him of
being a sex offender whilst using an internet chat room, was successfully sued for libel:
see 'Chat room insults leads to internet libel victory,' The Times, March 22 2006

Opinion and Fact

In Keays v Guardian Newspapers and others (LAWTEL, 7 July 2003) it was held that in a
libel action, the fact that a claimant had placed herself in the public arena invited public
comment by the media and that articles commenting on her behaviour should be
construed as expressions of opinion rather than fact.

Further, in Unabhangige Initiative Informationsvielfalt v Austria (2003) 37 EHRR 33, it
was held that an accusation levelled at a political party that they were guilty of ‘racist
agitation’ was, in the context of political debate, a value judgement made in response to
that group’s strong views in relation to immigration control. The granting of an injunction
to prevent what the domestic courts regarded as a statement of fact was not
proportionate and necessary in a democratic society.

See also Albert-Englemann Gesselschaft mbH v Austria, 19 January 2006, where the
Court found a violation of article 10 when the applicant newspaper was fined under the
Media Act for defamation when it printed a story containing strong value judgments
made against a priest in the context of a religious debate. The domestic courts had
failed to give account to the context of the public interest debate and the fact that the
statements were largely opinion and value judgments, albeit exaggerated. Neither was
the paper obliged to identify the author of those views or to distance itself from such
views. (Obershclik v Austria applied)

In Mamere v France, 7 November 2006 the Court found a violation of article 10 when a
journalist and member of the ecologist party, and a member of parliament, was fined for
aiding and abetting the public defamation of a former civil servant. The applicant had
derided the servant over his in capacity with respect to the Chernobyl disaster and its
affect on France territory. The Court concluded that given the public importance of the
subject matter, the position of the applicant and the fact that the plaintiff was retired
from public life, the interference under article 10 was unjustified. In particular the
applicant had not been given the opportunity to justify what was principally a value
judgment of the plaintiff.

In Falter Zeitschriften GmbH v Austria and Nikowitz v Austria, 22 February 2007 the
European Court found violations of article 10 when the press had published articles
expressing, respectively, views about whether charges against politicians should have
been dropped, and joking that a sportsman was happy that a competitor had broken his
leg. Both fell within acceptable criticism and political satire.

However, in Standard Verlagsgesellshafy v Austria, 22 February 2007 the Court held
that there had been no violation when the press had been liable under the Media Act
when making allegations that the victim had deliberately misled Parliament. The
allegations were clearly statements of fact and were very serious in nature.

See also Lindon and others v France, 22 October 2007 where it was held that the fining
of a journalist and newspaper for publishing an article accusing right-wing figures of


                                             67
being liars, of suing violence and leading a gang of killers was proportionate and
necessary and thus not in violation of article 10. The articles stirred up hatred and
violence against the victims, even if they occupied an extremist position in politics.

Fair Comment and Justification

In Coys Ltd v Autocheris Ltd and others [2004] EWHC 1334 (QB) the Court of Appeal
held that the approach set out in Cream Holdings did not apply to defamation cases.
Further, in Green v Associated Newspapers, October 16 2004, the High Court held that
s.12(3) of the Human Rights Act 1998 was displaced by the rule in Bonnard v Perryman,
where an interim injunction will be refused in cases where the defendant intends to us
the defence of justification and fair comment at the main trial, unless the defence is in
the court’s view bound to fail. The judge held that he was bound by the rule in Bonnard,
which was there to protect free speech from prior restraint, but noted that it was
arguable that the rule was inflexible and might need to be modified in the light of s.12
of the Act. Accordingly, his Lordship granted the injunction pending an appeal on this
issue. Two weeks later, the Court of Appeal ([2004] EWCA Civ 1462) upheld the decision
of the High Court and confirmed that the rule in Bonnard v Perryman was not caught by
s.12(3) and the decision in Cream Holdings. The Court of Appeal further held that the
rule was justified in order to protect free speech from prior restraint and thus was not
contrary to article 8 of the Convention.
See also the discussion of the decision in Green v Associated Newspapers, above, under
Section 12 of the Human Rights Act

See also Armstrong v Times Newspapers [2004] EWHC 2928 (QB) and Jameel v Times
Newspapers (above) with respect to failed attempts to raise the defence of
justification, because the words were not capable of bearing a lesser meaning than that
alleged by the claimant.

In Lowe v Associated Newspapers [2006] EWHC 320 (QB) it was held that a defendant
relying on fair comment could rely on facts which were extrinsic to and not included in
the relevant article. In this case the comments about the claimant’s behaviour with
respect to taking over a football club had been discussed in the public domain. The facts
had to be known to the defendant at the time of publication, but it was not essential
that they were at the forefront of the defendant’s mind.

In Henry v BBC [2006] EWHC 386 it was held that the BBC could rely on the defence of
justification when it had alleged that the claimant had been guilty of falsifying hospital
waiting list figures. Evidence suggested that H was aware of the manipulation of
statistics regarding waiting lists and had actively participated in the concealment of
such figures when investigations began. See also the failed defence under qualified
privilege, below.

In White v Sweden, 19 September 2006, the European Court held that there had been
no violation of article 8 when Swedish newspapers had published articles about the
applicant (a well known public figure whose alleged illegal activities, including the alleged
murder of the Swedish Prime Minister in 1986, had attracted public debate) accusing
him of various criminal offences. In the Court’s view the articles offered a balanced
account, including denials of the allegations by the applicant and others. The domestic
courts were entitled to find that the newspapers had a reasonable basis for publication


                                             68
and that the public interest in the articles’ publication outweighed his right to private
life under article 8.

In Associated Newspapers v Burstein [2007] EWCA Civ 600 the Court of Appeal held
that a critical review of the claimant’s opera constituted a fair comment and thus gave
summary judgment for the newspaper. The reviewer stated that he found the tone of
the piece depressingly anti-American and that the idea that there is anything heroic
about suicide bombers was, frankly, a grievous insult. The claimant alleged that this
intimated that he was a terrorist sympathiser. The Court of Appeal held that the words
clearly related to the artistic review the piece in general and were a fair comment on
matter of public interest.

Absolute Privilege

In Jennings v Buchanan [2004] UKPC 36, the Privy Council held that the affirmation in a
newspaper of statement made by a New Zealand MP outside Parliament did not attract
absolute privilege even though the statement referred to a statement that was so
privileged. The MP might be able to rely on qualified privilege, but freedom of
expression in Parliament did not require the absolute protection of such affirmations.
The Privy Council also held that it was not in violation of article 9 of the Bill of Rights
1689 for the claimant in this case to rely on the statement made by the defendant in
Parliament as evidence that the defendant had actually made the allegation.

In W v Westminster City Council [2004] EWHC 2866 (QB) the High Court refused to
extend the scope of absolute privilege to statements made by a social worker in a child
protection case conference. In the Court’s view the availability of qualified privilege
offered sufficient protection. (see below under Qualified Privilege))

In Buckley v Dalziel [2007] EWHC 1025 it was held that allegedly defamatory remarks
made in a witness statement to the police were covered by absolute privilege. See also
Westcott v Westcott [2007] EWHC 2501 (QB) where it was held that an initial oral
compliant about an alleged crime and a subsequent statement were essential early parts
of the criminal investigation and thus protected by absolute privilege

Qualified Privilege

In Kearns and others v General Council of the Bar [2003] 2 All ER 534, the Privy Council
held that in a claim for qualified privilege in respect of persons who have an existing
relationships (such as communications between professional bodies), the rule in Reynolds
that the allegation must be properly investigated and verified only goes to the question
of malice, and is not relevant in deciding whether that communication is privileged or
not. Thus the law will attach qualified privilege more readily to communications within an
existing relationship than to those between strangers.

In Seaga v Harper [2008] UKPC the Privy Council held that the defence of qualified
privilege applied to publications in the public interest made by any person and not
just to those published by the media. The Privy Council held that there was no
reason why the Reynolds principle could not extend to others apart from the media
provided they met the conditions of responsible journalism identified in that case.
On the facts the defendant, a politician who had defamed a police commissioner in


                                             69
a statement where the press were present had not adhered to those principles as
he had taken insufficient care to verify the information. Neither was the
defendant able to rely on traditional qualified privilege because there was no duty
interest present in the case.

However, in Wood v Chief Constable of West Midland Police [2004] EWCA Civ 1638, the
defence of qualified privilege could not succeed when a police officer had written
letters to the Crime Fraud Prevention Bureau, informing it that the claimant had been
charged with handling stolen goods and detailing thee allegations against him. In the
Court of Appeal’s view, as the claimant had not been convicted particular care was
needed. The statements of the officer were ill considered and indiscriminate and did not
contribute to the prevention of crime or the protection of victims of crime.

See also Al Mismade v Azzaman Ltd [2003] EWHC 1783, following Saad Al Fagih v HH
Saudi Research (page 263 of the text), held that with cases with an international
dimension, account should be taken of the fact that journalists may for political reasons
find it difficult to verify their sources. In such a case the defence of qualified privilege
should not be struck out at the interlocutory stage.

In Galloway v Telegraph Group Ltd [2004] EWHC 2786 (QB) it was held that the
claimant (An expelled MP) should succeed in an action for defamation when he had been
accused of benefiting financially form the regime of Saddam Hussein. The court held
that on their proper reading the words used in the article were defamatory and that the
defence of qualified privilege was not available to the defendants. The issue of public
interest was an issue for the judge and in this case the articles did not fairly and
disinterestedly report the context of the relevant documents, they went beyond
assuming them to be true and drew their own inferences as to the personal receipt of
funds, something not imputed in the documents. The newspaper were not under a moral
or social duty to make the allegations about the claimant without any attempt at
verification and without putting to him what they were proposing to publish allegations
of personal enrichment. Further, the articles were not comment but contained
allegations of fact and thus the defence of fair comment was not available. Finally, the
compensation should reflect the manner in which the allegations were out into the public
domain and their seriousness – an appropriate sum would be £150,000. This decision was
upheld by the Court of Appeal on 25 January 2006: [2006] EWCA Civ 17. The Court held
that the decision in the High Court struck a fair balance between article 10 and 8 and
was thus consistent with the case law of the European Convention. The statements made
by the paper were essentially of fact and it had adopted and embellished the allegations
made in original documentation found by the paper's reporter. There was no basis on
which to interfere with the trial judge's findings.

In Armstrong v Times Newspapers (above), it was held that there was no duty on behalf
of a newspaper to publish allegations that the claimant had probably taken performance-
enhancing drugs. Applying Reynolds it was held that although there was a matter of
public concern, there was no duty to print allegations without offering the claimant an
opportunity to respond. However, on appeal the Court of Appeal held that the failure to
put allegations to the claimant was not necessarily determinative of the defence of
qualified privilege ([2005] EWCA Civ 1007).




                                             70
In W v Westminster CC (above) it was held that where defamatory statements had been
made during a child protection case conference the test of malice was whether the
defendants acted bona fide in the discharge of their moral duty to raise matters of
concern or whether they acted from some other unjustifiable motive. The test in
relation to irrelevant matter was whether it provided evidence from which malice could
be inferred. In the present case the recklessness of the defendants was such which if
proved might be evidence that the communication was made for some wrongful motive.

In Jameel v Wall Street Journal, The Times, February 9 2005, the Court of Appeal held
that for a defence of qualified privilege to succeed the defendants would have to show
that they not only exercised standards of professional journalism, but that the
publication would be in the public interest. In the court’s view the latter test was more
stringent than proving that the public would be interested in the matter. In the present
case the defendants had not exercised the standards of professional journalism, when
making allegations about the terrorise links of the claimant’s trading company as they
had not given the claimants the opportunity to comment on the article before publication
despite being asked to do so by the claimant. The Court also held that in considering the
defence a jury must not presume that the statements were untrue and that the question
of whether the defence was available should be judged from the position of those
responsible for the publication. The decision of the Court of Appeal on qualified
privilege was overturned on appeal, The Times, 12 October 2006. The House of Lords
held that the Court of Appeal had erred by rejecting the plea simply because the journal
had not given the claimants an opportunity to comment. The House of Lords stressed the
high public interest in the subject matter, the quality of the publication and the high
level of professionalism shown by the journal in the case. (See Beattie, New Life for
Reynolds ‘Public Interest Defence’? [2007] EHRLR 81)

  In McKeith v NGN [2005] EWHC 1162 (QB) the court struck out the defence of
qualified privilege when a newspaper had alleged that the claimant, the presenter of
‘‘You are what you eat,’’ had deceived the public about her qualifications. In the court’s
view it was difficult to see that the newspaper had a duty to inform the public of these
allegations and assert the worthlessness of her qualifications when it was well known
that her doctorate took 2 years to complete and the allegations had not been put to her
in advance of publication.

In Henry v BBC [2005] EWHC 2787 (QB) it was held that the BBC was not entitled to
rely on qualified privilege when it broadcast allegations that the claimant had falsified
information relating to NHS patient lists. Although the subject matter was of public
interest it was not necessary to broadcast the material in that fashion, making specific
allegations about the claimant. In addition, as the broadcast contained excessive
journalistic opinion and input, the BBC could not rely on statutory privilege under s.15 of
the Defamation Act 1996. (See the decision in that case on justification, above)

In Times Newspapers v United Kingdom, admissibility decision October 11 2005 it was
held that the striking out of the applicant’s qualified privilege defence (in Loutchansky v
Times) was foreseeable by the applicants (and thus not insufficiently prescribed by law),
and proportionate to protecting the claimant from a serious factual defamatory
statement. Also, the Court refused to rule on the compatibility of the ‘internet rule’
applied in that case because notice had not been given to the respondent state. (See




                                            71
Dunlop ‘Article 10, the Reynolds test and the rule in the Duke of Brunswick case’ [2006]
EHRLR 327)

In Roberts and others v Searchlight Magazine and others [2006] EWHC 1025 (QB) it
was held that the defendants could rely on a qualified privilege defence at the
preliminary stage of a libel action. The action had been brought by 2 members of the
BNP with respect to an article which reported allegations made by other BNP members
that the claimants were guilty of theft and making threats. In the court’s view the
principles laid down in Reynolds could apply to a reportage case. Further, whilst Reynolds
did not create a separate category of privilege for political information, the political
significance of a publication would often be an important factor in determining the
merits of a privilege claim. Reporting both sides of a dispute in a political party was an
important element in the doctrine of reportage and the fact that the journalist or
journal had a political stance contrary to the claimant did not deprive the former of the
defence: what mattered was whether the matter was reported in an objective and
disinterested way. In the facts, applying the principles in Reynolds, particularly the fact
that the publication did not adopt the views but merely reported them, the defence
should be allowed to stand at trial.

In Culnane v Morris [2006] 2 All ER 149, the High Court held that s.10 of the
Defamation Act 1952 was not to be interpreted to preclude an election candidate from
relying on the defence of qualified privilege. Section provides that defamatory
statements published by or behalf of candidates shall not be deemed to be published on
a privileged occasion on the ground that it is material to an election issue. Eady J held
that the purpose of the section was to stop such publications receiving special immunity
over and above the normal availability of qualified privilege; it was not to deprive such
publications of the defence where that defence was otherwise satisfied. The court used
s.3 of the HRA 1998 to achieve this outcome and overruled previous contrary case law
on this matter.

See also Charman v Orion Publishing [2006] EWHC 1756, where the defence of qualified
privilege failed because the defendants had not exercised professional journalism by
publishing a book relating the to claimant's trial in a manner which was not fair or
disinterested. In particular the defendants had been irresponsible in relying on
unsubstantiated reports from police officer involved in the trial. Neither was the book a
fair and accurate report of judicial proceedings under the Defamation Act 1996. On
appeal [2007] EWCA Civ the Court of Appeal held that although the book was not mere
reportage of allegations so as to allow the defendants to rely on that defence, following
Jameel (above) the court should give effective weight to the professional judgment of
the journalist and the fact that in this case the author asserted that he did not intend
to convey the meaning attributed by the court to those words was a relevant factor to
take into account. In this case the judge had erred in not considering the books as a
whole and the claimant’s story within them and in not taking sufficient account of what
the author had omitted and his editorial judgment. Applying Reynolds and Jameel the
correct conclusion was that the books were responsible journalism.

Contrast Prince Radu v Houston and another [2007] EWHC 2735 (QB), where it was held
that a defence of qualified privilege (and reportage) failed because the publishers did
not neutrally cover both sides of a debate on whether the claimants title had been
properly bestowed on him.


                                            72
In Malik v Newspost Ltd and others [2008] EWHC 3063 it was held that the
defence of qualified privilege was not available to a person who had sent in
unsubstantiated allegations of fact to a newspaper which were seriously defamatory
of an MP. Normally the Reynold’s defence would apply to journalists and journalism
although it could apply outside that context. In the present case there was no
public interest in publishing that allegation irrespective of its truth or falsity. With
respect to the paper and editor, they had not corroborated the allegations or
provided an opportunity for response and thus lost the Reynold’s defence.

In Blackwell v News Group Newspapers [2007] EWHC 3098 it was held that there
was no public interest in a football chairman publicly attacking the competence of
an ex football manager so as to attract the defence of qualified privilege.

In Trumm v Norman [2008] EWHC 116 it was held that there was no general public
interest in disseminating remarks critical of the claimant which pertained to a
dispute between the claimant and his trade union.

In Tonsberg Blad AS and Haukom, 1 March 2007 the European Court held that there
had been a violation of article 10 when the press had faced a criminal prosecution for
libel after it had published a number of articles suggesting that a pop singer had
violated planning laws, and that once it was clear he was not to be prosecuted suggesting
that he had got off and exposed a loophole. A subsequent article was published
clarifying the matter. The Court held that a possible failure of a public figure to
observe laws and regulations aimed at protecting serious public interests, even in the
private sphere, might in certain circumstances constitute a matter of public interest. In
this case the allegations were not that the pop star had committed a criminal offence,
and given the strong public interest in the story, and given the fact that the property
was on the council’s list, the press were not obliged to fully verify whether the victim’s
property was covered by the regulations.

In Curistan v Times Newspapers [2008] EWCA Civ 432, the Court of Appeal upheld
the High Court ruling to the effect that an article linking the claimant with money-
laundering for the IRA was a fair and accurate report of what had been alleged in
parliament by an MP. Any information additional to the statement – that the
claimant’s company accounts had, contrary to the claimant’s contention, been
subject to some criticism by the auditors - was closely associated with the
parliamentary statement and the article contained no gratuitous or irrelevant
commentary. The newspaper’s liability for the additional comments was to be judged
in the context of what the MP had said. Further the Court of Appeal held that the
article had merely indicated that there were grounds for suspecting that the
allegations against the claimant were true, not that they were true.

Damages

In The Gleaner Company and another v Abrahams, The Times, 22 July 2003, the Privy
Council held that the Jamaican Court of Appeal were entitled to reduce defamation
damages by half because they had given an award that no reasonable jury would have
thought reasonable to compensate the claimant. However the Privy Council also held that
the final ward of £533,000 was not disproportionate to the enjoyment of freedom of


                                            73
expression given the evidence of loss of earnings and of actual psychological and
physiological damage suffered by the claimant. In Pedder v News Group Newspapers
(October 7, 2003), the High Court held that the granting of high costs in a libel action
could have a stifling effect on freedom of expression and thus should be avoided so as
to avoid a violation of article 10 of the European Convention. See also Galloway v
Telegraph Group Ltd, above under Qualified Privilege

In Trumm v Norman [2008] EWHC 116 it was held that in assessing damages for
libel the court should take into account that the defamatory remarks were made in
response to provocative comments made initially by the claimant.

Costs

In Campbell v MGN, The Times, October 21 2005 the House of Lords held that it was
not in violation of article 10 of the European Convention for a defendant in libel
proceedings to be forced to pay the extra cost of solicitor’s success fees which had
been incurred by the claimant in bringing the action. This was the case even though
those fees were twice as expensive as normal fees and the claimant did not need to avail
herself of such a service because of her own personal wealth. Conditional fee
arrangements (available to all) were not invalid simply because they were inconsistent
with article 10 and Parliament could choose to provide access to litigation in a way it
deemed fit.

Criminal Libel

In Worme and another v Commissioner of Police of Grenada, The Times, 5 February
2004, the Privy Council held that the prosecution of two individuals for criminal libel
after writing letters to a newspaper defaming the Prime Minister of Grenada, was in the
public interest, and was not an unreasonable restriction on the appellants’ freedom of
expression under article 10 of the Constitution. The protection of good reputation was in
the public interest, as was the protection of the reputation of public figures from false
accusations of misconduct in a public office. The criminal prosecution of the appellants,
in respect of an allegation that the Prime Minister spent millions of dollars trying to
bribe people to vote for him and his party, was justified, despite the sparse use of the
law and the fact that it did not exist in every democratic society.

Contempt of Court

Contempt and Disclosure of Sources

The Court of Appeal re-iterated the importance of the protection of journalistic
sources, in Mersey Care NHS Trust v Ackroyd, The Times, May 31 2003. In that case
the Court of Appeal stated that although there was a clear public interest in preserving
the confidentiality of medical records, that fact alone could not automatically justify
making a summary order for order against a journalist without the case being considered
at full trial. At full trial, Mersey Care NHS Trust v Ackroyd, The Times, February 9
2005, the High Court held that it was not necessary to disclose the journalist’s source;
in Ashworth v MGN (2002) the House of Lords had ordered disclosure of Mr Ackroyd,
who was the source of another journalist’s article on the treatment of Ian Brady at a
mental hospital. The High Court stressed the vital public interest in protecting



                                            74
journalists’ sources and concluded that the necessity of disclosure had not been
convincingly established in this case. The High Court noted that the circumstances had
changed since the original order and that it was no longer necessary to disclose the
identity of the original source. These circumstances included the fact that since 1999
there had been no further disclosure and thus the risk of further disclosures was lower.
(For commentary, see (2006) NLJ 444. This decision was upheld by the Court of Appeal:
The Times, February 26, 2007. The Court of Appeal held that the judge was entitled to
conclude that the interests of a journalist in protecting his sources outweighed the
competing interests of maintaining confidential medical records. Given the history of
the problems at the hospital in the 1990’s and the importance of investigative journalism
in bringing them to light, the judge was entitled to regard the journalist’s freedom of
expression as being of a high order in the balance between free speech and confidential
medical records. On the other hand, circumstances had changed since the granting of
the original order, notably that the source’s purpose was not to gain financial payment
and the patient had now given his consent.

In Assistant Deputy Coroner for Inner West London v Channel 4 [2007] EWHC
2513 (QB) it was held that it was necessary and proportionate for a coroner
investigating the death of Princess Diana to order a television channel to reveal
documents provided by witnesses to the event and supplied to the channel in order
to make the programme. Before assessing whether such disclosure was necessary
and balanced the court needed to assess and balance the competing interests: in
this case the disclosure would only be made to the coroner and the documents were
necessary to present the jury with the fullest and fairest account of what took
place.

The liberal ruling of the Court of Appeal in Attorney-General v Punch Ltd and another ,
detailed in chapter 8 of the text, has been overturned by the House of Lords; [2003] 1
All ER 301. The House of Lords held that when a court issued an injunction to restrain
publication of information relating to the Security Service pending an action in
confidentiality, the purpose of that order was the prevention of publication during that
period, and not the protection of national security. Thus, a deliberate breach of that
order constituted contempt as it prejudged the issues that the trial court would be
considering. The House of Lords also held that a proviso imposed on the order that it did
not apply to information that the Attorney-General consented to, was not censorship as
the parties could always apply to the court for an alteration of that order if it became
too restrictive. (The case is noted by ATH Smith, ‘Third Parties and the Reach of
Injunctions' [2003] CLJ 241).

In A-G v Scotcher [2005] UKHL 36 the House of Lords held that although a juror would
not commit an offence under s.8 of the Contempt of Court Act 1981 if he disclosed the
jury’s deliberations to the court with the genuine intention of avoiding a miscarriage of
justice, there would be a contempt if he disclosed that information to a third party who
had no authority to receive disclosures on behalf of the court and who might to might
not pass on that information to the court. The House of Lords held that s.8 was not
incompatible with article 10 of the European Convention as the juror can in relevant
cases draw his concerns to the attention of the judge before the journey returned its
verdict.




                                           75
In Chief Constable of Greater Manchester Police v Channel 5 Broadcast Ltd [2005]
EWCA Civ 739 the Court of Appeal allowed an appeal against the granting of an
injunction prohibiting Channel 5 from broadcasting a programme entitled ‘‘Gangsters’’.
The programme centred on the unlawful activities of 2 brothers, one of which had been
killed. The police claimed an order on the basis that their investigations were at a
delicate stage and that the programme might deter potential witnesses from coming
forward. The Court of Appeal held that there were insufficient grounds to conclude that
the programme would create a substantial risk that the proceedings would be seriously
impeded or prejudiced. The trial was some months off and a properly directed jury could
cope with the fact that intimidation of witnesses in Manchester was rife. Further, since
the killing there had been articles in both the local and national press and given the
brothers’ notoriety it could not be established that the showing of the programme would
add substantially to the risk that already existed

In Tourancheau and July v France, 24 November 2005, the European Court held that
there was no violation of article 10 when an editor and a journalist were convicted of
contempt of court and fined 1,500 euros each (suspended) when they had published an
article explaining the details of a murder and revealing information from the case file
whilst the matter was still under investigation. The article backed the version of events
claimed by one of the accused and thus the domestic courts were entitled to find that
the article had prejudiced ongoing proceedings. The conviction and the punishment were
necessary and proportionate and freedom of expression was outweighed by the need to
protect the administration of justice.

In Kyprianou v Cyprus, 15 December 2005 the European Court held that there had been
a breach of article s 6 and 10 of the Convention when a lawyer had been sentenced to 5
days in prison for contempt of court when he had objected to the behaviour of the
judge and other court officials when defending his client. The Court held that the
domestic court had shown insufficient objectivity and detachment by saying that the
judges had been deeply offended by the applicant’s behaviour and that such language
was contrary to article 6. There had also been a breach of article 10 because although
the applicant had used certain objectionable words (he had accused court officials of
passing secret notes and love letters during the prceedings0, such words had been used
in the context of the applicant’s attempt to secure a fair trial for his client. The finding
of contempt and the resultant sanction were thus disproportionate.

Contempt of Court and Reporting of Proceedings

In Clayton v Clayton [2006] EWCA Civ 878 the Court of Appeal held that the prohibition
under s.97 of the Children Act 1987 on publication identifying children in family
proceedings normally ceased to have effect when those proceedings ended, The
prohibition may extend beyond the ending of the proceedings, but in such a case the
court would have to conduct a balancing exercise between the child’s article 8 rights and
freedom of expression. In this case a prohibition on a father making a video diary of his
daughter, reliving the child’ abduction by him, was as proportionate interference with
article 10 given the impact on the child’s privacy and welfare.

See also Norfolk CC v Webster and others, dealt with under confidentiality, below.




                                             76
In R v B, Court of Appeal 27 October 2006 it was held that it was not necessary to
impose a reporting restriction on the press under s.4 of the Contempt of Court Act 1981
in respect of a forthcoming trial of a defendant for acts of murder and terrorism. Even
though the trial and conviction of his co-defendant had attracted wide publicity and
debate the reporting of the co-defendant’s sentencing hearing, the press could and
should be trusted not to publish anything prejudicial to the forthcoming trial and the
jury trusted to act fairly.

In R v L, The Times, 31 July 2007 the Court of Appeal quashed an order made under s.4
of the 1981 Act which had prohibited for an indefinite period the defendants from
reporting a question and answer given in open court during a trial under the Official
Secrets Act 1989. Section 4 permitted postponement of reporting but only during the
proceedings in question. In the present case it was difficult to see that the order made
during the trial was necessary to prevent prejudice to the administration of justice as
the trial would have continued even if the report had been published.



Confidentiality

At the full trial, the Chancery Division decided in Douglas v Hello! Ltd, The Times, April
21 2003 that the wedding of two celebrities could be regarded a commercial commodity
thus attracting protection under the law of confidence. The wedding was a sufficiently
private affair to possess an air of confidence. The claimants therefore succeeded in
their action with respect to breach of confidence when a rival magazine took
photographs of the claimant’s wedding. In addition, the defendants had acted in breach
of the PPC Code of Practice, there being no overriding public interest in freedom of
expression in the publication of their photographs. The claimant’s privacy claim was
rejected because the law of confidence adequately covered that claim. On November 7,
2003 the Chancery Division of the High Court awarded OK! magazine £1,033, 156 in
damages representing losses in sales, and awarded the Douglases £14,600, incorporating
£3,750 each for distress. The Court of Appeal upheld this decision on 18 May 2005
[2005] EWCA Civ 595, although it held that OK magazine could not receive damages fro
breach of the Douglass's confidence and privacy. The Court of Appeal confirmed that
where a person had private information at his disposal which he intended to profit from
commercially, then a third party who was or should have been aware of those matters
who knowingly obtained the information without authority would be in breach of
confidence by publishing the information to the detriment of the owner. The case has
now been heard by the House of Lords and it was confirmed that the wedding
photographs constituted confidential information as none were publicly available. The
couple had made it clear that anyone admitted to the wedding should not take
photographs and that duty was imposed for their benefit as well as OK magazine: [2007]
UKHL 21.

In X and Y v Persons Unknown [2006] EWHC 2783 QB the High Court allowed the
continuation of ‘John Doe’ injunctions, forbidding all newspapers from discussing
intimate details of the respondents’ marriage if such detail was provided by persons
unknown. The court held that the respondent’s article 8 rights were engaged despite
them being in the public eye and that it was not unreasonable to continue the injunctions
against the press, albeit in a modified form




                                            77
In Norfolk CC v Webster and others [2006] EWHC 2733 (Fam) it was held that a
reporting restriction on care proceedings, prohibiting the press from attending and
reporting on the case was contrary to article 6. The principles of open justice applied to
such proceedings, albeit with exceptions and there should be no automatic preference
for privacy. In this case there was a public interest in exposing a possible miscarriage of
justice and the case had already received public exposure. The restrictions should be
lifted.

In Archer v Williams (LAWTEL 4 July 2003), Mary Archer was granted an injunction
restraining her former employee from disclosing confidential details of Lord and Lady
Archer in breach of an express clause in her contract of service She was also granted
£2,500 damages when the employee disclosed that Lady Archer had had a facelift,
details of which later appeared in a newspaper. The court held that there was no
overriding public interest in the disclosure of sensitive personal information.

In D v L [2003] EWCA Civ 1169, the Court of Appeal refused an application for an
injunction to restrain L, the former lover of D, from disclosing the contents of a tape
recorded message containing information relating to D' s sexual proclivities. Although D
could rely on the long-term relationship and the illegal method of obtaining the
information to found a claim in confidentiality, the matter was already in the public
domain and in any case there was no evidence to suggest that L was to abuse the
information. The Court of Appeal accepted that there could be a duty in equity not to
publish secretly taped conversations despite such information being in the public domain
because of the greater distress caused by such recordings (and photographs),

In Attorney-General v MGN Ltd, decision of the Chancery Division 20 November 2003,
an injunction was granted on behalf of the Royal Family to stop the further publication
of material acquired by a former employee of the Royal household and in breach of an
express covenant in his contract of employment. The employee was in fact a journalist
employed by the Daily Mirror and the latter had written extensive articles based on
information provided by him. It was held that the claimants had a real prospect of
success at trial and that it was unlikely that a defence of public interest would succeed
against an express contractual clause forbidding disclosure, especially where no illegality
was being alleged. Subsequently the defendants agreed to a permanent injunction
agreeing not to publish further stories or photographs and to pay the Queen’s legal
costs: Attorney General v MGN and Parry, decision of the Chancery Division, 24
November 2003.

In Campbell v MGN, The Times, 7 May 2004, the House of Lords overturned the decision
of the Court of Appeal, and held that the revelation of detailed information relating to
the claimant’s drug addiction, including the publication of photographs of her visiting a
rehabilitation clinic and details of her treatment, was an interference with her right of
enjoyment of private life. Although the majority accepted that her drug addiction was a
matter of public interest and could therefore be revealed, they decided that the
revelation of such detailed information was not justified. Lords Nicholls and Hoffmann
dissented, feeling that this information lacked the necessary elements of privacy and
confidentiality.

In Von Hannover v Gemany, decision of the European Court of Human Rights 24 June
2004, it was held that the persistent photographing of the former Princess Caroline of


                                            78
Monaco by the paparazzi was in violation of article 8 of the Convention. The European
Court denied any overriding public interest in the photographs and the decision might
have an enormous impact on the use of confidentiality by celebrities and public figures in
English law. On 28 July 2005 the Court effected a friendly settlement of 10,000 euros
for non-pecuniary loss and 105,000 for expenses. See Muller and Munz, ‘The Protection
of Privacy in Germany: has anything changed since the Von Hannover decision?’ (2005)
Communications Law 205

In Jagger v Darling [2005] EWHC 683, the High court granted an injunction to
Elizabeth Jagger, daughter of Mick Jagger, to stop the further publication of CCTV
footage taken in the defendant's nightclub, showing the claimant engaged in sexual
activities with another minor celebrity. Granting the injunction the judge held that
there was no genuine public interest in the publication of the images and that repeated
publication of the images, blurred photographs had already appeared in a Sunday tabloid,
would only serve to humiliate the claimant. Further, the claimant had a reasonable
expectation of privacy and the balance clearly was in favour of publication taking into
account s.12(3) of the Human Rights Act 1998.

In Sir Elton John v Associated Newspapers, 23 June 2006 the High Court refused to
grant an injunction to restrain the publication of photographs taken by the press of the
claimant. In the court’s view there was no harassment of the claimant (as there had
been in Von Hannover) and although the photographs and story would have been
unflattering and offensive that was insufficient to ground an action in confidentiality.
Further, the fact that the photos were taken without his consent did not per se give
rise to an action.

In Murray v Express Newspapers [2007] EWHC 1908 it was held that there had been no
breach of confidentiality and privacy when the newspapers had taken a photograph of
the son of a famous author (JK Rowling). There was no evidence of harassment and
distress and the taking of a photograph without consent did not per se amount to an
action. See Foster, Photographs, Privacy and Press Intrusion (2007) JP 732

See also Mahmood v Galloway [2006] EWHC 1268 – investigative journalist had no
reasonable expectation of privacy with respect to photographs taken of him undertaking
undercover operations. There was also no risk to his life re any publication.

In Beckham v Morris (unreported) the High Court refused to grant the Beckham’s an
injunction pending trial to prohibit the claimant’s nanny from breaching her contract of
confidentiality and selling a story to the tabloids relating information about the
Beckham’s marriage and like style. The judge accepted that there was a public interest
in the story and refused to grant an interim injunction. (See Dadak, Beckhamgate: a blow
to press freedom? (2005) NLJ 679)

See now the High Court decision in McKennitt v Ash [2005] EWHC 3003 (QB). In that
case the High Court granted an injunction to prevent the further publication of a
biography about the claimant (a famous country singer) written by her friend and
providing details of her private life. The court also granted the claimant £5000 in
damages fro distress. The court noted that there was a significant shift taking place as
between, on the one hand, freedom of expression for the media … and, on the other
hand, the legitimate expectations of citizens to have their private lives protected. In


                                           79
this case the author and publisher of the book must have appreciated the claimant’s
legitimate expectation of privacy and that its publication would cause the claimant
distress. The case has been appealed to the Court of Appeal and various media groups
have sought leave to intervene in the case. The Court of Appeal confirmed the decision
of the High Court: [2006] EWCA Civ 1714. The Court of Appeal held that the trial judge
was correct in regarding the details of M’s life as private and confidential to her despite
the fact that the defendant was her confidante and friend. There had been a
reasonable expectation of privacy and article 8 was engaged. Further, the trial judge
had been correct in balancing her private life with the defendant’s article 10 rights –
the defendant had no story to tell of her own as opposed to the claimant’s and article 10
clearly had to yield to article 8. The claimant’s limited disclosure of her private life
(about the death of her fiancé) did not open up the whole areas of her private life to
intrusive scrutiny. She was not a public figure in whom there was a legitimate interest to
justify or require exposure of her private life.

In CC v AB [2006] EWHC 3038 (QB) the High Court granted the claimant an injunction,
prohibiting the defendant from exposing the fact that the claimant was having an affair
with the defendant’s wife. There was no general rule that an adulterer could not seek an
injunction to restrain the publication of matters relating to such an affair and such
publication would not have been in the public interest, albeit interesting to the public.
The court also considered the reason for the defendant’s publication – to revenge his
wife’s affair and to earn money for selling the story to the newspapers. Contrast A v B,
C and D [2005] EWHC 1651 QB, where an injunction to stop the publication of the
claimant’s details of drug-taken and other personal and health details was refused on
grounds of iniquity and previous publication.

In HRH Prince of Wales v Associated Newspapers, 17 March 2006, the High Court
granted the Prince of Wales an injunction to stop the publication of one of his stolen
political diaries (the Hong Kong Diary) on grounds of breach of confidence and copyright.
Earlier the judge had reserved his judgment allowing the publication of the diaries
pending that decision. The case will now go to full trial and the Prince must await that
action to remedy the publication of the other diaries. The newspaper intends to appeal
against this order, claiming that publication was in the public interest. See Foster, The
Prince's Diaries (2006) JP, April 8, 2006. This case decision was upheld by the Court of
Appeal: The Times, December 28 2006. Permission to appeal to the House of Lords has
been refused.

In Browne v Associated Newspapers [2007] 3 WLR 289 it was held that an interim
injunction should not be granted prohibiting the defendant from disclosing certain
information relating to the chairman of BP’s affair with a young man. The judge had been
correct in protecting the claimant from intimate details regarding the relationship and
to allow disclosure of allegations that the claimant had abused the company’s resources
during the relationship.

In Mosley v News Group Newspapers [2008] EWHC 687 (QB) an injunction
prohibiting the further publication of video footage showing the claimant taking part
in sexual activities with prostitutes was refused on the grounds that the footage
had already entered the public domain (via various websites). It was held that the
footage was private and confidential and that there was no legitimate public
interest in further publication of the video – there was no public interest in further


                                            80
publication and the footage was not needed to refute the claimant’s claim that the
activities did not have a Nazi connection. However, as the information had already
been published there could be no interest in prohibiting its publication; either the
claimant had lost his expectation of privacy or there was nothing left in practical
terms for the law to protect.

In Tiller Valley Foods v Channel Four Television [2004] EWHC 1075 Ch, Mann J refused
an interim injunction preventing the defendants from broadcasting a programme about
the claimant’s food production practices. The film had been made with the help of a
journalist who had posed as an employee and who had reported on allegations of bad and
unhygienic practices at the claimant’s factory. In the judge’s view the information was
not confidential just because images of the factory had been taken without the
claimant’s consent. In any case its disclosure was justified in the public interest. The
defendants did not have to give the claimant a right of reply in order to rely on the
public interest defence. In the court’s view the claimant was not likely to succeed and
thus the injunction would not be granted.

In Torbay BC v News Group Newspapers, [2004] EMLR 8 the High Court allowed the
publication of a girl’s story concerning her pregnancy at the age of 12. The courts had
previously granted an injunction protecting the identities of the girl and the 12-year old
father as well as the child. It was held that the right to communicate one's story was
protected not only by Article 10 of the ECHR, but also by Article 8, which protected an
individual's physical and social identity. Although the father’s rights justified
maintaining the injunction as far as he was concerned, it did not prevent the girl or the
press from telling his story anonymously, and an injunction wide enough to do that would
infringe the girl’s and the newspaper’s rights. The girl, not quite 17, had sufficient
understanding and maturity to decide what should remain private, and the court had a
duty to protect her right to make a choice. The child’s position was similar to the
father’s and there was no evidence to show that Y was entitled to greater protection,
which would prevent the newspaper from telling the girl’s story at all. Therefore the
local authority could not surmount s. 12(3) of the Act and the injunction could not be
maintained in its current form.

In Green Corns Ltd v Claverley Group Ltd [2005] EWHC 958 it was held that where a
newspaper had published the addresses of homes for troubled children, which had
resulted in a campaign by local residents to have the homes abandoned, it was necessary
to place a restraint on the publication of addresses in subsequent newspaper articles. It
was held that institutions such as children’s homes could be a proper claimant in such
proceedings on behalf of the children’s right to privacy. On the facts the balance lay in
favour of the injunction as the public interest did not justify the publication and re-
publication of such sensitive information as the addresses of the children and their past
mental and social problems. The court found that although the placing of offenders was
a matter of public interest, the concerns of the public in this case were matters more
related to the private rights of the neighbours.

See also Blake v United Kingdom the European Court held that there had been no
violation of article 10 when B had been subjected to an order to account for profits
made from the publication of his memoirs. See Article 10 European Convention on human
rights, above




                                            81
Freedom of expression and the control of terrorism

See also R (A) v Secretary of State for the Home Department [2003] EWHC 2846
(Admin), detailed in Prisoners' rights, below

Freedom of Information

The main Provisions of the Freedom of Information Act 2000 came into force in January
2005

In Office of Government Commerce v Information Commissioner [2008] EWHC 737
(Admin) it was held that the law of parliamentary privilege deemed that
parliamentary questions should not be answered by a ministerial statement as to the
application of the Freedom of Information Act 2000to a particular case.

In BBC v Sugar [2008] EWCA Civ 191 it was held that where the Information
Commissioner had ruled under the 2000 Act that a report held by the BBC was held
for the purpose of journalism etc and that the BBC was not a public authority under
the Act, he had not issued a decision notice and thus the Information Tribunal did
not have jurisdiction to hear an appeal.


Chapter 9 – Freedom of Assembly and Association

Freedom of Association

In R v Z [2005] 2 WLR 1286 the House of Lords held that the Real Irish Republican
Army could be regarded as a proscribed organisation under s.3 of the Terrorism Act
2000 even though it was not specifically listed under the legislation. The historical
context of the legislation was paramount in concluding that the ‘’IRA’’ included all
manifestations, representations and emanations of the IRA.

In R v Hundai and Dhaliwal, The Times 13 February 2004, the Court of Appeal held that
a person in the United Kingdom could commit the offence of belonging to a proscribed
organisation under s.11 of the Terrorism Act 2000 even where he or she had joined that
organisation in another country that did not proscribe the group. Such a finding was not
in violation of article 7 of the European Convention because the person was only in
violation of the law once he or she entered the United Kingdom, thus rendering him or
her liable to the relevant legislation. Further, the prosecution was entitled to rely on
evidence obtained as a result of a compulsory search of the defendant under the Act.

See now the Terrorism Act 2006, which creates new offences of encouraging terrorism
(s.1) and disseminating terrorist publications (s.2). See also the provisions relating to the
preparation of terrorist acts and training for terrorism (ss.5-8), proscription (ss.21-22)
and detention and searches (ss.23-30). Subsequently, two groups have been proscribed
under the new provisions: see 'Militant Islamist Groups banned under terror law,' The
Times, July 18 2006.

In R v Zafar and others, The Times, February 15 2008 it was held that for an
offence under s.57 of the Terrorism Act 2000 of possessing an article for a



                                             82
purpose connected with the commission, preparation or instigation of terrorism,
there had to be a direct connection between the possession of the article and the
act of terrorism with which the article was alleged to be connected. In the present
case the appellant had been in possession of extremist literature and the
prosecution had shown evidence of their plan to visit Pakistan and train to fight in
Afghanistan, but there was nothing that evidenced expressly the use, or intention
to use, the extremist literature to incite each other to do so. In the Court of
Appeal’s views, s.57 should be read as follows: A person commits an offence if he
possess and article circumstances which give rise to a reasonable suspicion that he
intends it to be used for the purpose of the commission, preparation or instigation
of an act of terrorism.

Also in R v K, The Times, February 18 2008 it was held that s.58 of the
Terrorism Act 2000 – collecting information likely to be useful to a person
committing or preparing an act of terrorism – did not require the jury to have
regard to the surrounding circumstances when deciding whether a publication was
likely to be so useful. The document had to contain information of such a nature as
to raise reasonable suspicion that it was intended to be used to assist in the
preparation or commission of an act of terrorism. It was not legitimate to seek to
show via extrinsic evidence that a document which was innocuous on its face was
intended to be used for the statutory purpose.

Article 11 and the ECHR

In Appelby v United Kingdom, The Times, May 13 2003, it was held that there had been
no violation of article 11 when the applicants had been prohibited from holding a
demonstration in a town centre shopping centre. Although the state had a duty to ensure
there was sufficient opportunity for individuals to take part in freedom of assembly, the
application of private law to stop the applicants campaigning against the building on a
local playfield was not a disproportionate interference with their rights under articles
10 and 11 of the Convention. Other avenues of protest were still open to them and there
was insufficient evidence to suggest that the prohibition in this case had rendered their
protest meaningless.

In Lucas v United Kingdom, admissibility decision of 18 March 2003, the European Court
upheld the Scottish law relating to breach of the peace. It had been argued that the
definition of breach of the peace in Scottish law – conduct which was alarming and
disturbing, in its context, to any reasonable person was too vague to be prescribed by
law, but the Court held that it was sufficiently precise to provide reasonable
foreseeability of actions which might fall into its remit. In this case, the applicants'
arrests for sitting in a road leading to a naval base were held to be in compliance with
articles 5, 10 and 11 of the Convention.

In Eugen Schmidberger, Internationale Transport und Planzuge v Austria, The Times,
June 27, 2003, the ECJ held that the Austrian Government had not acted unlawfully in
refusing to ban a demonstration by environmentalists that blocked a motorway for 30
hours. Although there had been an interference with articles 30 and 34 of the EC
Treaty, that was justified on grounds of public policy and by the principles of freedom
of expression.




                                           83
In Ivanov v Bulgaria, 24 November 2005 it was held that there had been a violation of
article 11 when two intended rallies had been banned on the grounds that that the
events would ‘’create conditions for breaches of public order’’. The Court held that the
reasons given for the ban were inadequate and that the authorities had thus not
provided relevant and sufficient reasoning for the ban. In addition, the fact that there
was reason to believe that the rallies were to be held by groups who harboured
separatist views was not sufficient per se to ban the meetings.

In Ollinger v Austria, 29 June 2006, the European Court held that there had been a
violation of Article 11 when the applicant’s counter demonstration against the holding of
a meeting commemorating the deaths of SS officers in WW 2 had been prohibited
under domestic law. The Court held that disruption to the commemorative meeting could
not be sufficient reason in itself and that the possible disturbance to the public, who
attended cemeteries on that day, was not serious enough given that the counter
demonstration would be attended by 6 people and that the organiser had promised that
there would be no banner or chanting, and that there had been no evidence of violence in
the past.

See also Baczkowsi v Poland, 3 May 2005 – breach of article 11 by inadequate and
discriminatory protection of applicants’ right to hold pro-homosexuality procession.

In Stefanec v Czech Republic, 18 July 2006 it was held that there had been a violation
of article 10 when the applicant had been convicted and fined for organising a banned
demonstration. The Court found that the offence of organising such a meeting had not
been defined with sufficient certainty so as to allow the applicant to foresee that his
involvement (announcing to the crowd that the meeting had been banned arbitrarily)
would constitute an offence.

In Zdanoka v Latvia, 16 March 2006 the Grand Chamber held that there had been no
violation of article 3 (or article 11) when the applicants had been refused the right to
stand for election fro being an active member of the communist party that had tried to
overthrow the government by violence. Such a measure was within the state’s margin of
appreciation, but the state should keep the ban under review.

See ASLEF v United Kingdom, dealt with under Article 2 European Convention, above

Section 5 Public Order Act

In Hammond v DPP, The Times, January 28 2004, the appellant’s conviction under s.5 of
the Public Order Act was upheld when he during the course of preaching in Bournemouth
he had held up a sign bearing the words ‘’stop immorality’’, ‘’stop homosexuality’’ and ‘’stop
lesbianism’’. A crowd of 30 people had gathered and water was pored over the appellant’s
head. He was arrested and subsequently convicted under s.5. The High Court held that
on balance the magistrate’s had been entitled to come to the conclusion that the words
used were insulting, although the court did remark that it had found it difficult to
conclude whether or not such a finding was perverse. The High Court also held that it
was open to the magistrates to find that the defence of reasonableness was not
available to the appellant. For the proceedings under the European Convention, see
Fairfield v United Kingdom, dealt with under The European Convention on Human Rights,
above


                                              84
Section 5 Public Order Act and racially aggravated public order offences

In Norwood v DPP, The Times, 30 July 2003, the Divisional Court upheld the conviction
of the defendant under s.5(1)(b) of the Public Order Act 1986 when he displayed a
poster that was found to be likely to cause harassment, alarm or distress and which was
racially aggravated. The poster was hung outside a window and was anti-Islamic and had
caused offence to a passer-by. In the court’s view, although article 10 of the European
Convention was engaged, the conviction's compatibility was consistent with the
provisions of articles 10(2) and 17 of the Convention. The judge had been entitled to
come to the conclusion that the poster crossed the boundary of reasonable political
comment.

See also DPP v Humphrey, 20 April 2005 on the meaning of racially aggravated insulting
and abusive words, and DPP v Collins [2005] EWHC 1308 (Admin) on the interpretation
of grossly offensive under s.127 of the Communications Act 2005.

NB - Section 1 of the Racial and Religious Hatred Act 2006 now contains an offence of
incitement to religious hatred and there are other related offences contained in the
Act. It will come into force on a date decided by the Secretary of State.

See R v Roger [2007] UKHL - the term racial group also included nationality and national
origins – the defendant’s use of the words bloody foreigners and go back to your own
country was racially aggravated

See Shapiro, ‘Free speech, hate speech and incitement’ (2006) NLJ 238



Breach of the Peace

In R (Laporte) v Chief Constable of Gloucestershire and others [2004] EWCA Civ 1639,
the Court of Appeal held that the police had acted lawfully in preventing the passengers
of a coach from reaching the site of a demonstration where the police apprehended a
breach of the peace. However, the Court held that the police had acted unlawfully in
escorting the coaches back to London without stopping when they had available to them
another course of action which would have impacted less seriously on the applicants’
freedom of action and liberty. This upheld the decision of the High Court, where it was
held that the police reasonably apprehended a breach of the peace (Moss v McLachlan
upheld), and that the stopping of the coach from travelling to the site was a
proportionate act to avoid a sufficiently imminent breach of the peace – the police
having discovered various equipment on the coach and having no means to identify which
of the coach party was likely to commit such a breach. It was also held that the
temporary deprivation of the coach party would not amount to a deprivation of liberty
under article 5. However, the Court of Appeal agreed with the High Court to the extent
that it was unlawful to escort the party all the way to London once the breach of the
peace had ceased to become imminent. On appeal the House of Lords held that the
police action was unlawful and in violation of the protestors’ right to freedom of
expression and assembly: [2006] UKHL 55. It was held that there was nothing in
domestic law which justified action short of arrest when a breach of the peace was not
so imminent as would be necessary to justify arrest. In this case no breach of the peace


                                           85
was apprehended and the test of lawfulness was not one of reasonableness but
imminence. Only when there is a reasonable apprehension of a breach of the peace must
the court consider whether the preventative action was proportionate or unreasonable.
Even if the officer reasonably apprehended a breach of the peace in this case the action
taken was disproportionate and unreasonable: the officer should have considered other
options when he realised the coach passengers did not pose an imminent threat to the
peace. On the facts he had failed to prove that the actions taken constituted the least
restriction necessary to the rights under articles 10 and 11. It was not reasonable for
the police to believe that there would be disorder once the coaches reached their
destination: the police had put into place extensive precautions at the site. Wherever
possible, the focus of preventive action should be on those about to act disruptively, not
on peaceful protestors, although such action could be taken against an innocent person
where it was reasonably apprehended that there was no other possible means of avoiding
an imminent breach of the peace.

See now the High Court decision in Austin v Commissioner of the Police, 23 March 2005,
where it was held that it was reasonable to detain, and thus deprive demonstrators of
their liberty, for up to 7 hours. Although article 5 had been engaged, the measures were
reasonable with respect to anticipated breaches of the peace and for the purpose of
detaining them on reasonable suspicion of them having committed a variety of offences.
On appeal the Court of Appeal [2007] EWCA Civ 989, The Times, October 29
2007, it was held, confirming the decision of the House of Lords in Laporte (above)
that it was only where there was a reasonable belief that there were no other
means whatsoever whereby a breach or imminent breach of the peace could be
obviated that the exercise by third parties of their rights could be curtailed by
the police; otherwise that action would amount to false imprisonment. Although the
judge had erred by concluding that all those within the cordon were about to
commit a breach of the peace, he had nevertheless correctly concluded that the
police had no alternative to do what they did to avoid the imminent risk of serious
violence by others. Further, those conditions of necessity remained throughout the
detention period because no one had suggested an alternative release policy. It was
also held that the original imposition of the cordon and the subsequent detention
did not amount to a deprivation of liberty within article 5 of the ECHR, as opposed
to an interference with freedom of movement ( Guzzardi v Italy). This was not
simply as case of a static crowd of protestors in Oxford Circus surrounded by
police and held in place for seven hours – it was a dynamic, chaotic and confusing
situation with large numbers outside the cordon threatening serious disorder. In the
circumstances it could not sensibly be held that there came a time when what was
originally something less than a deprivation of liberty subsequently became one
within article 5(1).

See also Epple v Germany (Application No 77909/01), where the European Court that
the detention of an individual for 19 hours for refusing to abide by an instruction not to
visit a particular site was excessive and thus in breach of article 5, even though the
initial detention was lawful under article 5(1)(b) for failure to carry out an obligation
imposed by law.




                                            86
Public Nuisance

In R v Rimmington and Goldstein, The Times, 17 December 2003, the Court of Appeal
held that the common law offence of public nuisance was sufficiently clear to satisfy
the tests of foreseeability and clarity required by articles 7, 8 and 10 of the European
Convention: ‘An act or omission causing inconvenience or damage to the public in the
exercise of rights common to all of His Majesty’s subjects’. In this case the defendant
had been charged with and convicted of a public nuisance when he had sent over 500
postal packages containing racially offensive material to several members of the public
over a period of nine years. A second defendant had, shortly after September 11, sent a
package through the post containing salt, which was mistaken for anthrax. It was held
that the defendants had been convicted by simply adapting the original definition of the
offence to new and novel facts of the case; thus the offence was sufficiently
prescribed by law. The court also found that the offence and the conviction was a
necessary and proportionate response to protect the public. This decision was upheld by
the House of Lords: [2005] UKHL 63 to the extent that article 7 was not violated by
the existence and application of the common law of public nuisance. However, on the
facts it was held that neither of the appellants had committed the offence.

Private Nuisance

In Church of Jesus Christ v Price [2004] EWHC 3245 an injunction was granted under
the Prevention of Harassment Act 1997 to prevent the defendant from demonstrating
outside the claimant's church. Further, it was held that the defendant's conduct
constituted a private nuisance. Although the defendant had not used profane or foul
language, and had not used or incited violence, local residents and visitors to the Church
had been disturbed, intimidated, alarmed and offended by P'S behaviour and his actions
had constituted harassment. The court held further that activities on a highway that
were neither obstructive or nor violent could nevertheless constitute a nuisance. It was
held that the relevant laws constituted a legitimate and proportionate interference with
free speech and that speech that promoted a person's religious beliefs should not
necessarily be protected absolutely under article 9.

In Heathrow Airport v Garman, 6 August 2007 an injunction was granted to prevent
protestors from gathering at Heathrow airport to protest about environmental hazards
of air transport. Although there was no evidence to grant an injunction under the
Prevention of Harassment Act 1997, the increased risks of terrorist attacks caused by
the protestor’s actions warranted the granting of the injunctions in trespass and
nuisance.

The Serious Organised Crime and Police Act 2005

Section 132 of the Act makes it an offence for any person to organise or take part in a
demonstration in a public place that is in a designated area, unless authorisation has
been given. The section clearly covers one-man demonstrations.. The provision does not,
however, apply to processions as covered by the Public Order Act 1986, or to conduct
that is lawful by virtue of s.220 of the Trade Union and Labour Relations Act 1992 (for


                                            87
example lawful picketing in contemplation or furtherance of a trade dispute. In addition,
if the protest is covered by s132 of this Act, s.14 of the Public Order Act 1986
(allowing the imposition of conditions on public assemblies does not apply to such a
protest. Section 133 of the Act then provides that a person seeking authorisation for a
demonstration in the designated area must give written notice of that effect to the
Commissioner of Police of the Metropolis, such notice normally be given not less than 6
days before the start of the demonstration And in any even not less than 24 hours
before such date. That notice has to state the date and time of the start of the
demonstration, how long it is to last and whether it is to be carried on by a person by
himself or not.

Having received such notice the Commissioner, must then give authorisation for the
demonstration, although in giving such may impose on the organisers or participants such
conditions as relating to the demonstration as in his reasonable opinion are necessary
for the purpose of preventing any of the following: hindrance to persons wishing to
enter or leave the Palace of Westminster, hindrance to the proper operation of
Parliament, serious public disorder or damage to property, disruption to the life of the
community, security risks in the area or risk to the safety of members of the public
(including those taking part in the demonstration). The conditions can impose conditions
on the place where the demonstration may, or may not, be, the times at which it may be
carried on and the period during which it may be carried on, the number of persons
taking part, the number and size of the banners or placards used and the maximum
permissible noise levels. In addition, s.137 of the Act provides that a loudspeaker shall
not be operated, at any time or for any purpose, in a street in a designated area, it now
being an offence to do so unless the loudspeaker is exempted under the other provisions
of the Act.

The exclusion zone, revealed by the Home Secretary to Parliament, will extend up to
1,000 yards from Parliament and will come into force on August 1, 2005.

In R (Haw) v Secretary of State for the Home Department and another, The Times, 4
August 2005, the High Court held that the Act did not apply to continuing
demonstrations such as Mr Haws that had commenced before s.132(1) of the Act.
Parliament could not have intended to apply the Act to continuing demonstrations and
Acts of Parliament should be construed in favour of individual liberty. Accordingly,
secondary legislation applying the Act to continuing demonstrations was ultra vires. This
decision was overturned on appeal (The Times, May 15 2006) where it was held that on
its proper construction the Act applied to all demonstrations, even those taking place
before the Act was passed. In particular, s.132(6), which disapplied assemblies that
came within s.14 of the Public Order Act 1986, made it clear that the provision applied
to all such assemblies whenever they started. The Court of Appeal decided the cases on
normal construction principles, and did not refer to human rights or s.3 of the HRA.
However, in DPP v Haw [2007] EWHC 1931 it was held that conditions imposed on Brian
Haw’s protest outside Parliament were too vague to be prescribed by law and thus ultra
vires.

In Blum v DPP and another [2006] EWHC 3209 (Admin) it was held that the procedure
under the 2005 Act for authorising demonstrations in a designated area was compliant
with Article 11 ECHR and that there was no duty on the authorities o justify the use of




                                           88
those powers on the individual facts of the case where someone had been prosecuted
under the Act for taking part in an unauthorised demonstration.

The government has issued a Green Paper on The Governance of Britain (Cm 7170)
and paras.164-6 seeks views on the framework governing the right to protest
around Parliament and the general legislation on protests and demonstrations. See
now the Governance of Britain Draft Constitutional Renewal Bill and White Paper:
www.justice.gov.uk/whatwedo/governance.htm

In Tabernacle v Secretary of State for Defence, The Times , April 9 2008 it was
held that a byelaw prohibiting ‘camps’ in a specified area outside a nuclear weapons
site was both sufficiently certain and proportionate to meet articles 10 and 11 of
the European Convention. So too was the term ‘the prohibition of the phrase
anything likely to cause annoyance’, although that would be interpreted to mean
that only those persons who would be reasonably annoyed by the conduct could
complain. However, the prohibition of ‘placing anything over any structure’ covered
totally innocuous behaviour and that part of the byelaw failed common law principles
of reasonableness.



Protection form Harassment Act 1997

In Dallchi and others v Stop Huntington Animal Cruelty and others, The Times, October
22 2003, the High Court held that the Protection from Harassment Act 1997 could not
be used by companies. Such bodies were not victims within the Act, although individuals
who were non-corporate claimants were entitled to protection under the Act. Thus,
directors of a company and its employees were allowed to bring proceedings under the
Act. In granting the orders, the court held that even taking into account freedom of
expression, the imposition of exclusion zones was necessary for the protection of the
claimants.

In Emerson Developments Ltd v Avery and others, decision of the Queen's Bench
Division 26 January 2004, it was held that that the claimants, employees of Huntington
Life Sciences, were entitled to an order stopping the defendants from entering
specified zones around the company's premises and the claimant's homes. More
importantly, the court granted an order that the defendants cease publishing particular
information relating to attacks on the company, posted on their website. In the court's
view the claimants had established a real prospect of success at trial and thus had
complied with s.12(3) of the Human Rights Act.

In University of Oxford v Broughton [2004[ EWHC 2543 an injunction was granted in
the claimant's favour to prevent the defendants from demonstrating outside a research
laboratory. The action had been brought by Oxford University and an injunction had
been granted in favour of protected persons, prohibiting the defendants from harassing
the claimants. On an application to continue the injunction it was held that there was no
requirement for the protected persons of an order to be named. Further, their
anonymity did not infringe the defendant's right to a fair trial – the defendants had no
difficulty in identifying suitable targets for harassment and thus they could easily
identify those protected by the injunction. The restrictions were a proportionate
interference with the defendant's rights under the Convention and the order would be


                                           89
expanded to include the prohibition of photographing the protected persons.
Subsequently, it was held that where it was likely that activists would harass
workers, students and staff at the university then the exclusion zone should be
extended. However it refused the request to create a new zone to prevent activists
from shouting at the site of graduation ceremonies as the evidence did not suggest
that this amounted to harassment within the Act: [2008] EWHC 75 (QB).

In Oxford University v Webb [2006] EWHC 2490 THE High Court held that the Animal
Liberation Front was an organisation capable of being represented in a legal action
despite its efforts to avoid legal or other status. The group had a common aim – the use
of unlawful means to campaign against animal cruelty. Thus the group could be added to
the claimant’s action against harassment and could be subject to injunctions. However
the court noted that care would need to be taken not to implicate all its members and
that all members should be notified of any injunction against the organisation

See also Church of Jesus Christ v Price, discussed above under private nuisance, above

In Howlett v Holding, The Times, February 8 2006 it was held that an order under the
1997 Act could be made even where the defendant is exercising his right of freedom of
expression under article 10. It further held that the defence under s.1(3) with respect
to the detection of crime only applied to state agencies. In this case the defendant had
pursued a campaign against the claimant, a local councillor, after she had spoken out
against the defendant in a planning application. The campaign involved flying abusive and
derogatory banners, and dropping such leaflets, from his aircraft and placing her under
surveillance in order to see whether she was committing benefit fraud. The court held
that the anguish suffered by the claimant was all out of proportion to the value
attached to his right of free speech and was thus a necessary restriction under article
10(2).

See also In R v Kirk (9 March 2006), where the Court of Appeal upheld the appellant’s
conviction under the Postal Services Act 2000 for sending a package through the post
to employees at an animal laboratory, describing the premises as equivalent to Auschwitz
and including a Swastika emblem.

See also extended powers to deal with harassment under the Serious Organised Crime
and Police Act 2005 – see sections 125-127.

In R v Debnath, Court of Appeal 2 December 2005 it was held that a restraining order
under the 1997 Act prohibiting the defendant from publishing any information about the
complainant or his fiancée, whether true or false, was not in breach of article 10 of the
European Convention. The Court of Appeal noted the exceptional circumstances of the
case in that the defendant had difficulty in distinguishing the truth from lies and that
she was willing to go to extraordinary means to harass the complainant.

Clause 1 of the Terrorism Bill 2005, would have made it unlawful to glorify acts of
terrorism, but that provision was dropped because of opposition in the House of Lords.
Section 1 of the Terrorism Act 2006 creates the offence of encouraging terrorism and
section 2 the offence of dissemination of terrorist publications that encourage or
induce terrorism. Both offences can be committed when the person intends to encourage
or is reckless in that respect.


                                           90
In Heathrow Airport v Garman, 6 August 2007 there was no evidence to suggest that
protestors were advocating harassment as opposed to annoyance to grant an injunction
under the Prevention of Harassment Act 1997 (Although the increased risks of terrorist
attacks caused by the protestor’s actions warranted the granting of the injunctions in
trespass and nuisance)

Public Processions

In R (Kay) v Commissioner for Metropolitan Police Force [2006] EWHC 1536 (Admin) it
was held that a regularly held cycle rally (Critical Mass) held to promote the interests
of cyclists and to protest against motorists’ abuse of cyclists was a procession within
s.11 of the 1986 Public Order Act despite the participants and the rally itself having a
variety of and no fixed objectives. The court also held that the cycle ride had been
customarily held since 1994 (the last Friday of every month), even though it was
difficult to identify whether it had ever had an organiser. Accordingly the procession
was exempt form the requirement to give notice of the procession. Over ruled on appeal:
[2007] EWCA Civ 477 – processions which followed a different route each time could
not be regarded as commonly or customarily held.

Public Assemblies

A public assembly in s.16 of the Public Order Act 1986 is now defined as an assembly of
2 (formerly 20) or more persons for the purpose of imposing conditions on such
assemblies. In addition, s63 of the CJPO Act is amended so that such a gathering need
not be in the open air and the numbers involved now have to be twenty (formerly 100).
There have also been changes made to the police’s powers to remove trespassers from
land and the sanctions for failing to comply with orders of removal and seizure.

In R (Brehony) v Chief Constable of Greater Manchester Police, 23 March 2005, the
High Court held that the police had acted lawfully and reasonably by imposing conditions
on a public assembly under s.14 of the Public Order Act 1986. In this case the applicants
had held a demonstration outside a supermarket in Manchester city centre over a period
of time and had recently attracted a counter demonstration. The Chief Constable wrote
to them saying that in order to prevent public disorder or serious disruption to the life
of the community over the Christmas period the demonstrations would be limited to an
alternative location and be of a limited duration. It was held that the police should
identify which head of s.14 they were acting under, and if under (1)(a) - serious public
disorder, serious damage to property or serious disruption to community like – which of
those headings was being relied on. The reasons given by the police do not have to be
detailed, but sufficient to enable to the demonstrators to understand why the decision
was being made and whether it was reasonable or not. In the present case Bean J felt
that sufficient reasons had been given and the decision was reasonable as there was a
sufficient prospect of serious disruption to the life of the community of a large city on
busy Saturdays leading up to Christmas. (See Hosseinbor, ‘The Right to Public Protest:
Brehony’ (2005) NLJ 833

In Austin v Commissioner of Police of the Metropolis, above, it was held that the power
to impose conditions under s.14 of the 1986 Act could include a power to bring the
procession to an end and that an instruction under s.14 of the same Act could include a



                                           91
direction that some or all of the assembly disperse by a specified route or that they
stay in a particular place.

In Christian Democratic People’s Party v Moldova, 14 February 2006, it was held that
there had been a violation of article 11 when the authorities had imposed a month’s ban
on the applicant’s party’s activities after it had taken part in an unauthorised
demonstration outside the National Assembly Square. The Court held that that measure
was out of proportion, given the mere fact that the group had not sought permission for
the meeting, that the measure might have a chilling effect on its future activities, and
that the meeting was held during the time of local elections.

Aggravated Trespass

In DPP v Bayer and Others, The Times, November 7 2003, the Divisional Court held that
the common law defence of protective force was not available in a case of aggravated
trespass where the activity that was being disrupted was not unlawful. In this case
protestors had tied themselves to tractors sowing genetically modified maize. In an
action for aggravated trespass the court of first instance had allowed the defence of
protective force because the defendants had genuinely believed that the sowing of such
crops was damaging to adjoining property and animals. On appeal it was held that
although the defence might apply in appropriate cases, the judge should have considered
whether the defendants used reasonable force in order to defend property from actual
or imminent damage constituting an unlawful or criminal act. The Court did, however,
state that the defence could apply to this offence, despite the lack of words such as
‘without lawful authority’ in the section. The defence may be available; therefore, if
landowners or others are carrying out unlawful activities, or carrying out lawful
activities unlawfully, although the court stressed that the use of such protective force
must be proportionate.

The Anti-Social Behaviour Act 2003 makes some changes to the law of aggravated
trespass. The words ‘’open air’’, included in ss.68 and 69 of the Criminal Justice and
Public Order Act 1994 (which define the offence of aggravated trespass and give
powers to remove persons who are committing such an act) are now removed. Thus
disruption of a lawful activity that is disrupted does not have to be in the open air and
the police can remove trespassers whether they trespass in the open air or not.

In R v Aycliff and others [2005] EWHC 684 it was held that for the purposes of s.68 of
the CJPOAct an act of aggression or crime against peace did not constitute an offence
contrary to domestic law so as to constitute unlawful action within that section (it is an
offence to disrupt only lawful activities). That matter was not justiciable. However,
allegations that the conduct of the soldiers at military bases constituted a war crime
was justiciable for these purposes, and for the question whether reasonable force had
been used to prevent a crime (under s.3 of the Criminal Damage Act 1971). On the facts
there was no evidence that the actions of the soldiers did constitute such an offence.
The defendants had acted in order to protest rather than prevent crime. The court also
clarified that the activity of preventing unlawful activities would not be a breach of s.68
even if the consequence of the activity was to prevent other, lawful actions taking place.

Dispersal Orders



                                            92
In R (Singh) V Chief Constable of West Midlands, 4 November 2005 the High Court held
that the police had the power to use dispersal orders under s.30 of the Anti-social
Behaviour Act 2003 to disperse protestors who were causing harassment, alarm and
distress to members of the public when protesting against the staging of a play. Section
30 did not expressly exclude protests and the use of such powers was subject to the
doctrine of proportionality. In the present case the dispersal order was proportionate
to the harm threatened and the police had considered the situation carefully before
using the power. It was not necessary that the dispersal order was made with respect to
conduct not specifically foreseen in the original order (to deal with ‘binge-drinking’ in
the Xmas period. The decision was upheld by the Court of Appeal on 28 July 2006,
where it was held that Parliament intended the dispersal regime under the 2003 Act to
apply to protests. Moreover, it was not necessary for the courts to read the provision
down so as to exclude protests from the statutory scheme. The orders in this case had a
legitimate aim and were used proportionately. The Court of Appeal also confirmed that it
was not fatal that the dispersal order was made with respect to different conduct and
had been subsequently applied to control protests.



Terrorism and freedom of assembly and association

In R (Gillan and another) v Commissioner of Police of the Metropolis and another ,
Divisional Court, 31 October 2003, it was held that there had been no violation of
articles 10 or 11 of the Convention when the police used their powers of stop and search
under s.44(4)(b) of the Terrorism Act 2000 to search people who were on their way to
attend an arms fair for the purpose of taking part in a peaceful protest. In the court’s
view the powers under s.44 were wide enough to allow the stop and search exercise to
be carried out throughout the whole police area. The threat posed by terrorism
provided the necessary justification for any violation of the claimants’ rights and there
was ‘just enough’ evidence that the arms fair was an occasion that concerned the police
sufficiently to persuade them that the use of their powers under s.44 was needed. In
the court’s view, however, such a conclusion was ‘a close call’ and the police would do well
to review their training and briefing and the language of their standard forms used for
s.44 purposes. The Court of Appeal upheld the decision of the High Court on 29 July
2004, finding that there had been no violation of article 5 of the Convention (because
any loss of liberty was too transient), and that any violations of articles 8,10 and 11 were
justifiable and proportionate. The procedure was prescribed by law and the statute
contained controls on those powers. As to the authorisations, the disadvantage of the
intrusion imposed on individuals by being stopped and searched was outweighed by the
advantage of the possibility of a terrorist attack being avoided or deterred by use of
the power. The police commander had been entitled to decide to use the s.44 powers at
the arms fair, given the nature of the fair, its location close to an airport and the site
of a previous terrorist incident. However, the respondents had not provided sufficient
evidence that police officers had received careful instruction on the use of the powers.
It was important that, when the police were given exceptional powers, they were
prepared to demonstrate that they were being used with appropriate circumspection.
The onus was on the first respondent to show that the interference with the
protestors' rights was lawful. On the evidence, it was not possible to say that that onus
had been discharged.




                                             93
The House of Lords dismissed the appeal on March 8, 2006: [2006] UKHL 12; The
Times, March 9 2006. It was held that the word ‘expedient’ in s.44(3) – where the
relevant officer considers it expedient for the prevention of terrorism to authorise a
stop and search had a meaning quite distinct from ‘’necessary.’’ There was every
indication that Parliament had appreciated the significance of the power that it was
conferring and thought it an appropriate measure to protect the public against the grave
risks posed by terrorism, provided the power was subject to effective restraints, as it
was under this legislation. The Act informed the public that the powers were, if duly
authorised and confirmed, available. It defined and limited those powers with
considerable precision and anyone stopped had to be told by the constable all he needed
to know. The constable was not free to act arbitrarily and would be open to civil suit if
he did. In any case their Lordships doubted whether there had been any interference
with Convention rights in this case: there was no deprivation of liberty, the applicants
were merely being kept from proceeding or kept waiting; the superficial search was not
serious enough to amount to a violation of article 8; and it would be rare where such a
power would interfere would give rise to an infringement of articles 10 or 11. Even so,
any interference would be justified under the exceptions provided under articles 5, 8,
10 and 11. The majority of their Lordships felt that the police would not have the power
to use the power simply because a person was of Asian origin or appearance. However,
Lord Scott thought that any such discrimination was valid by virtue of the authority of
the 2000 Act.

Freedom of Assembly and the public interest
In Jones and Milling and others v Gloucestershire CPS [2004] EWCA Crim 1981, it was
held that a jury would be entitled to consider the appellants' beliefs as to the
lawfulness of the Iraq war in determining the reasonableness of their actions in relation
to the defences of duress of circumstance/necessity and lawful excuse to charges of
criminal damage and arson. However, as the international crime of aggression was not a
crime for the purposes of the Criminal Law Act 1967 s.3, it was not necessary for the
court to consider the justiciability of the legality of the war in Iraq in order to deal
with the judge's rulings. An appeal to the House of Lords was unsuccessful: [2006]
UKHL 16. The House of Lords held that the crime of aggression, although accepted as a
crime within customary international law was neither a crime within the 1967 Act, nor
an offence under the Criminal Justice and Public Order Act 1994. In any case, even if
an act of aggression was an offence, the defendants had used unreasonable force by
obstructing military activities and were thus still guilty of the offence of aggravated
trespass.

See also R v Aycliff and others [2005] EWHC 684, discussed above under Aggravated
Trespass


Chapter 10 - Prisoners’ Rights

Prisoners and the right to life

Inquests into deaths in custody and article 2 of the European Convention

The House of Lords granted leave to appeal against the Court of Appeal decision in R
(Amin) v Secretary of State for the Home Department [2002] 3 WLR 505 on the
question of whether there is a duty to conduct a full judicial inquiry into a death in


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custody, and on 16 October delivered judgment overruling the decision of the Court of
Appeal. The House of Lords found that the investigation into the death of a prisoner at
the hands of a racist cellmate did not fulfil the requirements of article 2 of the
Convention, and that a full independent public investigation had to be held to comply with
article 2. Applying the principles laid down by the European Court in Edwards v United
Kingdom, the House held that there had been no inquest to discharge the, State's
investigative duty, the police investigation had raised many unanswered questions and did
not discharge that duty, the Prison Service's investigation did not enjoy independence
and had been conducted in private, not being published. Finally, the family had not been
able to play an effective part in the inquiry. The subsequent public inquiry disclosed 186
failings contributing to the murder, identifying 19 individuals and making a number of
recommendations to the government

The decision in Amin was followed by the Court of Appeal in R (Davies) v HM Deputy
Coroner for Birmingham [2003] EWCA (Civ) 1739, where the Court ordered that a new
inquest into a prisoner's death in prison take place in order to establish whether
systemic neglect had been a cause of death. The Court of Appeal noted that the law was
in an unsettled state and that the present coronial system was currently an inadequate
vehicle for the procedural obligations imposed by article 2 of the European Convention.
In order for article 2 to be satisfied there had to be a full and effective inquiry into
death at the coroner's inquest if this was realistically the only opportunity for the state
to perform its procedural obligation. In the present case the inquest did not canvass the
issue of systemic neglect and therefore did not comply with article 2 or the ruling in
Amin.

In R (Middleton) v Somerset Coroner , The Times, 12 March 2004, the House of Lords
held that the state’s procedural obligation under article 2 required an inquest to give an
expression of the jury’s conclusion on the central factual issues surrounding the death.
Thus, although the finding could not implicate criminal or civil liability, in deciding how a
person had died the jury must indicate not only by what means the person died, but also
by what means and in what circumstances. In this case the inquest had not indicated the
jury’s findings on the relevant factual matters and had thus had not, initially, complied
with article 2. However, the applicants had eventually been provided with those findings
and the inquest in that case had been fail in all other respects. On the same day, in R
(Sacker) v West Yorkshire Coroner, The Times 12 March 2004, the House of Lords
applied the principle in Middleton to order a new inquest into the death of a remand
prisoner. See also R (Anderson) V HM Coroner FOR Inner North London [2004] EWHC
2729 (Admin)

NB In R (Hurst) v HM Coroner for Northern London District [2007] 2 726, the House of
Lords held that the Human Rights Act 1998 and article 2 of the Convention did not have
retrospective effect so as to apply to deaths occurring before the Act came into
effect.

In R (D) v Secretary of State for the Home Department [2005] EWHC 728 (Admin) the
High Court held that an internal inquiry and a proposed investigation by the Prisons and
Probations Ombudsman into D’s failed suicide attempt did not meet the requirements of
articles 2 and 3 of the Convention. A mandatory order was made compelling the Home
Secretary to conduct a full and effective public investigation into the incident. The first
investigation was not independent or effective as reports had been lost and the


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proposed inquiry lacked the characteristics laid down in cases such as Jordan and Amin -
it was not to be held in public, it lacked effective means of compelling witnesses and
failed to give the prisoner’s representatives the opportunity to make a meaningful input.
See now the decision of the Court of Appeal [2006] EWCA Civ 143 where it was held
that although any inquiry had to be held in public to be compliant with article 2, it was
not necessary that the prisoner in question did not have to have the right to cross
examine witnesses. Moreover, although the inquiry had to be held in public, article 2 did
not require the whole process had to be in public; simply that the Chairman would make
the evidence and written submissions public and take oral evidence in public.

The Home Secretary refused a public inquiry into the death of Joseph Scholes, who
committed suicide in Stoke Heat young offenders' institute – judicial review proceedings
have been launched (See The Guardian, December 1 2005). In Scholes v Secretary of
State for the Home Department [2006] EWCA Civ 1343, the Court of Appeal held that
there had been no breach of article 2 when a full public inquiry had not been established
to examine the sentencing and subsequent suicide of a 16-year old boy at a young
offender institution. The judge had not violated article 2 by imposing a two year
detention – he had not been obliged to conduct an enquiry as to where and in what
circumstances the boy would be detained, and had requested that information as to his
vulnerability should be passed on to the authorities. The Court also held that the inquest
in this case had been thorough and was in compliance with article 2; a full public inquiry
was not required in every case, and although an inquest could not always look fully at
policy issues, in this case the court had done that and the coroner had forwarded its
findings to the secretary. The Secretary had responded to these issues and the
combination of that response and the inquiry met the demands of article 2.

In R (JL) V Home Secretary, 1 November 2006 the High Court held that the simple fact
of an unexpected death or life-threatening injury in custody would usually cross the
threshold requiring an investigation in to that death that would satisfy the requirements
of article 2. The judge pointed to several factors which indicated that there may have
been a breach of procedure thus requiring an investigation.

In R (S) v Home Secretary, 16 January 2006 it was held that the normal method of
investigation into a death in custody was an inquest and that it was not always incumbent
to set up a public inquiry where the inquest did not touch on broad issues of government
funding or policy.

In Younger v United Kingdom (Decision of 7 January 2003, Application No 57420/00),
the European Court declared inadmissible a claim by the father of a prisoner who had
committed suicide whilst in prison. The Court held that although the authorities had
departed from safety procedures, the applicant's so was not a suicide risk so as to
engage the state's liability under article 2 of the Convention. This follows the rationale
of the Court of appeal decision in Orange v Chief Constable of West Yorkshire.

In Trubnikov v Russia, judgment of the European Court 6 July 2005, it was held that
there had been no violation of the substantive right under article 2 when a prisoner with
a record of suicide attempts had committed suicide in his cell. The Court held that
despite his history, and the fact that the authorities were partly responsible for the
fact that he had access to alcohol and should have known that his state posed risks to
him whilst he was serving a disciplinary punishment in segregation, he had not at the


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time posed an immediate risk of suicide so as to engage the liability of the state. The
Court did, however, find a violation of the procedural obligation under article 2 because
the state had failed to carry out an effective investigation into that death. (Noted in
[2005] EHRLR 676)

In Tarariyeva v Russia, 14 December 2006 the Court held that there had been a
violation of articles 2 and 3 when a very ill prisoner had been handcuffed to his bed
following an operation and had been driven 120km in a prison van to a prison hospital
where he subsequently died. The Court found that the prisoner should not have been
returned to prison after falling seriously ill, that he had received inadequate or not
medical treatment during one period, and that there was a direct link between those
facts and his death.

In R (Bloggs) v Secretary of State for the Home Department [2003] EWCA Civ 686, the
Court of Appeal confirmed the decision of the High Court that the decision of the
Prison Service to remove the prisoner from a protected witness unit in prison and return
him to mainstream prison system was not in violation of the prisoner’s right to respect
for life under article 2 of the European Convention. In the Court’s view there had been a
substantial reduction of risk to the prisoner’s life once the authorities had decided not
to prosecute the person who posed the threat to the prisoner.

In R (Shelley) v Home Secretary [2005] EWCA Civ 1810, the Court of Appeal refused
prisoners permission to apply for review of the prison service’s policy to provide
disinfectant tablets to clean needles used by prisoners, instead of allowing a needle
exchange system. The Court held that it was permissible for the service to be led by
considerations of security in considering whether to provide such a service and that the
policy was not unlawful simply because other agencies offered such a service.

On December 14 2004 the House of Lord Joint Committee on Human Rights published a
report on deaths in custody (HL Paper No.15-I (Session2004/05)), making
recommendations to establish a cross-departmental task force to monitor the topic, to
review good practice standards and to publish information and make recommendations to
Government.

In Shelley v United Kingdom (App No 23800/06) it was held that the prison
authorities had not violated articles 2, 3, 8 or 14 by withdrawing a needle
exchange system and replacing it with the distribution of disinfecting tablets so as
to combat the spread of HIV and related infections. S’s article 2 and 3 rights
were not engaged as he was not a drug user and was thus in no danger. Although
his right to physical health and safety engaged article 8, there was no obligation to
pursue particular policies in that respect and there was no evidence that S was in
any particular danger, given that they had a preventative policy (the tablets).

Conditions of detention

In Poltorastskiy and others v Ukraine, decision of the European Court 29 April 2003, it
was held that there had been a violation of article 3 with regard to the conditions of
detention suffered by a number of death row prisoners; at one point the prisoners had
been locked up for 24 hours in a room with no natural light and that there had been
little or no provision for activities or human contact. The Court took into account the


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Ukraine’s socio-economic problems, but held that a lack of resources could not in
principle justify prison conditions as poor as to constitute inhuman or degrading
treatment. The Court also found a violation of article 3 with respect to the failure of
the authorities to carry out an official investigation into claims of ill treatment by
prison guards. See also Ocalan v Turkey, 12 March 2003, and Pantea v Romania,
judgement of the European Court 3 June 2003, where the European Court found a
violation of article 3 when the applicant had been beaten by prison guards and was
forced to share a cell with a prisoner who had AIDS.

In Mouisel v France, judgement of the European Court 14 November 2002, the Court
held that the failure to release a seriously ill prisoner from prison amounted to a
violation of article 3 of the Convention. The Court also found a violation in respect of his
shackling to and from prison and during treatment for chemotherapy. In contrast, in
Matencio v France (Application No 58749/00) the Court held that there had been no
violation of article 3 when a prisoner suffered a stroke in prison and claimed that his
detention and conditions of detention violated the Convention. In the Court’s view he was
offered adequate medical assistance and the threshold in article 3 had not been
reached. (See also R (Spink) v Home Secretary (below)

In McGlinchey v United Kingdom, The Times, May 1 2003, the European Court held that
there had been a violation of article 3 of the Convention when the inmate had died in
prison after receiving inadequate medical care to deal with her withdrawal symptoms. It
also held that there had been a violation of article 13, as the family did not have access
to an effective remedy to challenge the actions of the Prison Service or to receive
adequate compensation for any breach. See also the decision of the European Court in
Melnik v Ukraine,28 March 2006, where the European Court held that the failure to
promptly treat the applicant's tuberculosis, together with the subjection him to
cramped and unsanitary conditions, amounted to a violation of article 3.

In November 2006 the Home Office was reported to have made out of court
settlements to six prisoners who were claiming that their forced withdrawal from drugs
on imprisonment was contrary to their human rights: The Times, November 13 2006,
page 13

In Riveiere v France, decision of the European Court, 11 July 2006 it was held that there
had been a violation of article 3 when the applicant, a long term prisoner with a
psychiatric disorder had been detained in normal prison conditions without proper
facilities for his disorder. He should have been detained in special conditions
irrespective of his offence or perceived dangerousness.

In Pantea v Romania (Decision of the European Court of Human Rights, 3 June 2003) it
was held that there had been a violation of article 3 when a prisoner had been beaten by
his cell mates and where the authorities had failed to provide proper medical attention
after the attack. The Court also held that there had been a violation of article 3
because the authorities had failed to investigate the allegations of ill-treatment.

In Khudobin v Russia, 26 October 2006 the Court found a violation of article 3 when a
prisoner suffering from various physical and mental disabilities and illnesses was
provided with inadequate independent and qualified medical supervision whilst in prison.




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In Holomiov v Moldova, 7 November 2006 the Court found a violation of article 3 with
respect to the lack of medical care and facilities offered to the prisoner. The prisoner
had been diagnosed with serious kidney disease and the doctor had recommended
surgery which was not given because of the lack of facilities and experts in the prison
and the prison hospital.

In Henaf v France, decision of the European Court of Human Rights 27 November 2003,
it was held that there had been a violation of article 3 of the Convention when a 75-year
old prisoner had been handcuffed on his way to hospital to undergo an operation and had
been chained to the bedpost the night before the operation. The Court held that having
regard to his health, age and the absence of any previous conduct suggesting that he
was a security risk, the restrictions on his movement were disproportionate to any
security requirements. The Court also noted that on its visit to France in May 2000 the
European Committee for the Prevention of Torture had recommended that the practice
of attaching prisoners to hospital beds should be outlawed.

See also Avci and others v Turkey, 27 June 2006 where the Court found a violation of
article 3 when prisoners had been chained to hospital beds when receiving medical
treatment after taking part in a hunger strike. In the Court’s view there was no danger
of absconding or criminal activity and thus the use of chains in such cases constituted
inhuman treatment under article 3.

In Farbthus v Latvia, 2 December 2004 the European Court found a violation of article 3
when an 84 year-old prisoner, suffering from very poor heath had been detained in
prison and prison hospitals for nearly two years. The Court found that given his very
poor and worsening health – he could not stand up and wash etc without assistance - his
delayed release on medical grounds constituted a violation of article 3. Continued
detention was not appropriate and the applicant had been subjected to a state of
permanent anxiety and a sense of inferiority.

In Batayav v Home Secretary [2003] EWCA Civ 1489, the Court of Appeal remitted the
appellant’s case back to the Immigration Appeal Tribunal to consider whether he faced a
real risk of being subjected to prison conditions that were in violation of article 3 of the
European Convention. The appellant had escaped from a Russian prison and relied on the
European Court’s judgment in Kalashnikov v Russia (2003) 36 EHRR 587 to support his
argument that because there was evidence of a consistent pattern of gross and
systematic violations of human rights in such prisons there was a real risk of being
subjected to a violation of article 3. The Court of Appeal held that the burden of proof
of showing such a risk was not on the appellant and that the tribunal must consider all
new evidence, including whether such conditions had improved in recent times. See now
Batavav v Home Secretary, Court of Appeal 18 March 2005.

In Yankov v Bulgaria, decision of the European Court 11 December 2003, considered
under Prisoners’ Correspondence, below, the European Court held that there had been a
violation of article 3 when a 55-year old prisoner had had his head shaved and been
placed in solitary confinement for publishing defamatory remarks about prison wardens
and other state officials. The Court held that the act of forced shaving was in principle
an act that might have the effect of diminishing a prisoner’s human dignity and of
arousing feelings of inferiority capable of humiliating the prisoner. In this case the act
had no legal basis and appeared to be carried out as punitive measure, thus likely to


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appear to him to be done for the purpose of debasing and subduing him. The applicant’s
age (55) and the fact that he appeared in public nine days after his head had been
shaved were also relevant factors.

In Naumenko v Ukraine, decision of the European Court 10 February 2004, it was held
that there had been no violation of article 3 (or 13) of the Convention when the applicant
had been subjected to therapeutic therapy. There was insufficient evidence that the
applicant had not consented to the treatment and in any case the Court was not
satisfied that the authorities decision to administer the treatment was wrongful.
Article 3 did not prohibit such treatment in appropriate cases and the applicant was
suffering from serious mental disorders. The Court also found that the decision to place
the applicant in handcuffs did not constitute a measure that was not necessary to
prevent both self-harm and harm to others.

In Nevmerzhitsky v Ukraine, decision of the European Court 5 April 2005, it was held
that the prisoner's conditions of detention amounted to a violation of article 3. The
prisoner had been kept in a small cell with 12 other inmates and the cell had no drinking
water or access to water for washing. The Court relied on the findings of the ECPT to
find that the conditions were in violation of article 3 and also found that the had
received inadequate medical treatment for his eczema and scabies, which had
exacerbated the conditions, and that his isolation in a punishment cell with unacceptable
conditions constituted a violation of article 3. Significantly, the Court found that the
force-feeding of the applicant when the medical necessity of such not been established
constituted torture under article 3.

In Karalevicius v Lithuania, decision of the European Court 5 April 2005, it was held that
there had been a violation of article 3 when the applicant had been detained in a prison
cell with up to 15 inmates, sharing an open toilet and with limited access to hot and cold
water and shower facilities (limited to once every 15 days). In the Court's opinion, the
fact that the applicant had been obliged to live, sleep and use the toilet in the same cell
with so many other inmates had itself been sufficient to cause distress or hardship of
an intensity exceeding the unavoidable level of suffering inherent in detention. The
Court noted that although the total lack of toilet paper and the limited bath and shower
facilities did not of themselves amount to degrading treatment, when added to the
serious overcrowding problem (the prison was 100% overcrowded), they showed that the
applicant's conditions of detention such were not compatible with article 3.

In Novoselov v Russia, 2 June 2005, the European Court held that there had been a
violation of article 3 with respect to the applicant’s prison conditions. The cell was
shared by 51 inmates and contained only 30 beds and the applicant complained of lack of
ventilation and sanitation. The Court found that the fact that the applicant was obliges
to sleep, live and use the toilet in the same cell with so many other inmates was itself
sufficient to cause distress and hardship of an intensity exceeding the unavoidable level
of suffering inherent in detention. The fact that the windows were covered by metal
shutters and that the applicant had fallen ill twice with fever and contracted dermatitis,
coupled with severe overcrowding meant that the conditions went beyond the threshold
tolerated by article 3. The Court added that even if there had been no fault on the part
of the prison officials for the conditions, and the conditions were caused by objective
factors, the Russian Government were answerable for the acts of any State agency
since what was in question was the international responsibility of the State. The absence


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of any intention to humiliate did not preclude a finding of a violation of article 3. (See
also Labzov v Russia, 16 June 2005, where the Court found a violation of article 3 on
similar facts and grounds)

See also Romanov v Russia (Application No 63993/00) where the Court found a violation
of article 3 because of cramped, overcrowded and unsuitable conditions in a psychiatric
ward of a prison; Khudoyorov v Russia, 8 November 2005, where the Court also held that
there had been a violation of article 3 with respect to the conditions of the applicant’s
transportation via a prison van to and from the prison daily in order to appear in court;
and Alver v Estonia, 8 November 2005.

In II v Bulgaria, 9 June 2005, the European Court found a violation of article 3 with
respect to the applicant’s prison conditions. The Court held that the conditions could
have been improved in the absence of financial means, but that in any event alack of
resources could not in principle justify detention conditions which were so poor as to
reach the threshold of severity contrary to article 3. On the facts the Court held that
the cumulative effect of the lack of sanitary and other facilities, and the effect that
such had on his health resulted in a violation of article 3.

In Kaja v Greece, 27 July 2006, the European Court held that there had been a violation
of article 3 when the applicant had been detained after release from prison in a police
detention centre, which (according the ECPT) were clearly not suited to detention other
than short term, and the applicant.

In Dobrev and Yordanov v Bulgaria, 10 August 2006 – violation of article 3 when
applicants detained in detention centre for 3 months with inadequate light and sanitation
facilities

In Sanchez v France (Application 5940/00, 27 January 2005) it was held that there had
been no violation of article 3 when a prisoner (Carlos ‘The Jackal’) had been segregated
in prison for over 8 years. The majority of the Court held that he had not been subject
to social isolation as he had had visits from lawyers, access to television and newspapers
and time outside his cell. The majority felt that the hardship of segregation had not
crossed the threshold necessary for a finding of a violation under article 3, while the
minority of the Court found that the treatment was contrary to basic minimum
standards of human dignity and posed threats to his future mental health. On appeal the
Grand Chamber held (July 4 2006) that there had been no violation of article 3. In
particular the Grand Chamber noted that the prisoner was very dangerous and had
shown no remorse for his crimes. The Court also noted that he had some contact with
lawyers and medical staff and had not been denied family visits. Moreover the situation
was under constant monitoring (he had been returned to ‘normal’ conditions in 2006).

In Ostrovar v Moldova, 13 September 2005, the European Court found a violation of
article 3 when the applicant was detained in an overcrowded cell with no natural light or
ventilation and had been deprived of proper medical facilities and regular and
satisfactory bedding. In particular the Court held that the authorities had failed in
their duty to protect his asthmatic condition from the smoking of other inmates. The
Court also noted that overpopulated cells gave rise to issues under article 3,
irrespective of the exact numbers involved. See also Kadikis v Latvia (No 2), 4 May
2006, finding a violation of article 3 on similar facts.


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In Mathew v The Netherlands, 29 September 2005, the European Court held that there
had been a violation of article 3 with respect to the applicant’s conditions of detention
in the Caribbean island of Arub, part of the Netherlands. The Court noted that there
had been a violation in respect of excessive periods of solitary confinement and
inadequate protection in his cell against the weather and climate. It also held that the
authorities had unreasonably failed to accommodate his physical incapacity by making it
impracticable for him to use outdoor and exercise facilities.

See also Rohde v Denmark, July 21 2005 on article 3 and solitary confinement

In Napier v Scottish Ministers, The Times, 14 May 2004, the Outer Session held that
the subjection of the applicant to ‘slopping out’ in prison constituted inhuman and
degrading treatment within article 3 of the European Convention. The prisoner was
awarded £2,400 in compensation. The Executive’s attempts to appeal against this
decision were blocked by the prisoner because the appeals were made out of time. In
Davison v Scottish Ministers, The Times, 16 July 2004, the House of Lords held that
the decision of the Scottish courts (Court of Session) to refuse an order of specific
performance in respect of a complaint regarding prison conditions, was void for bias as
one of the judges had, as Lord Advocate, promoted the relevant legislation (the
Scotland Act) and had advised the House of Lords on its meaning and scope (applying the
principles in McGonnell v UK and Porter v Magill). Subsequently, in Davison v Scottish
Ministers, The Times, 19 December 2005 the House of Lords held that it was
permissible to grant an interim or final interdict or final order for specific performance
against a Minister in judicial review proceedings, as the bar on such orders imposed by
the Crown Proceedings Act 1947 only applied when the claimant was pursuing his or her
private law rights.

In Cenbauer v Croatia, 9 March 2006, the European Court held that there had been a
violation of article 3 with respect to prison conditions that the applicants had been
subjected to for 2 and a half years and which had been declared as in breach of article
3 by the CPT. In particular, the Court fond the practice of prisoners having to urinate in
plastic bottles because of the lack of toilet facilities humiliating.

Note the decision in R (Spink) v Home Secretary, 12 November 2004, where it was held
that a prisoner’s complaint relating to conditions of imprisonment and article 3 of the
European Convention could not be considered by the Parole Board when assessing
whether he should be released. The Parole Board’s task was to assess the likelihood of
the risk of re-offending etc. The duty to hold an investigation into possible violations of
article 3, implied into article 3 and recognised by the decision in R v Home Secretary, ex
parte Wright [2001 EWHC Admin 520, could not be carried out by the Parole Board, who
did not have the power to assess whether the prisoner was being subjected to inhuman
or degrading conditions of detention. In any case, the refusal of the Secretary of State
to grant compassionate release was not in breach of article 3, as the conditions of the
prisoner’s detention had not reached the appropriate threshold required by article 3. In
the court’s view there was a public interest in him carrying out his sentence and the case
of Mouisel v France (above) could be distinguished. The decision of the High Court was
upheld on appeal.




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In R (Graham and Allen) v Ministry of Justice [2007] EWHC 2940 (Admin) it was held
that there had been a breach of article 3 when a prisoner receiver treatment for cancer
was handcuffed whilst attending hospital and out patient appointments after it had been
accepted that he posed no risk of escape. Hew as awarded £500 in just satisfaction.
The handcuffing of another 75 year old prisoner who was receiving hospital treatment
was held not to be in violation of article 3 because of the prisoner’s offence (murder of
his wife and children) and his perceived risk to the public.

Also, in Gelfmann v France, 14 December 2004, the European Court held that there had
been no violation of article 3 when a prisoner, who had suffered from AIDS for nearly
20 years, 10 years before his incarceration, had had his request for release on medical
grounds refused. In the Court’s view there was no general obligation to release a
prisoner on health grounds or to transfer him to a civilian hospital, even if suffering
from an illness that was difficult to treat. In the present case, the prisoner was
receiving adequate treatment in prison and his condition was being monitored by an
outside hospital.

In Leger v France, 11 April 2004 it was held that there was no violation of article 3 when
the applicant had served a sentence of 41 years for abduction and murder. Although a
life sentence of this length necessarily entailed anxiety and uncertainty relating to
prison life and after release, in the circumstances the Court did not consider that the
sentence reached the level of severity required under article 3. There were no
aggravating circumstances evident to conclude that the applicant had undergone an
exceptional ordeal capable of constituting treatment contrary to article 3. The case
was heard by the Grand Chamber of the European Court on 30 April 2008.

In R (Mackenzie) v Home Secretary, 22 June 2006 the Administrative Court found that
there had been no violation of article 3 when the prisoner, a Category A prisoner, had
been subjected to regular nightly checks, involving opening his cell flap and turning a
light on to see that he had not escaped. This did not come anywhere near crossing the
threshold required by article 3, despite the prisoner's physical state- he was suffering
from prostrate cancer. However, with respect to his claim under article 8 the court
noted that the policy could be modified in his case to allow him to wear a mask and
earplugs.

Vincent v France, 24 October 2006 the Court found a violation of article 3 in respect of
the treatment of a wheel chair bound prisoner who had been detained for four months in
one prison which had inadequate facilities to deal with his disability. The Court
concluded that the applicant had been totally reliant and vulnerable on the authorities
and had lost the ability to leave his cell or move about the prison independently (a wheel
had to be removed from his chair every time he entered and left the cell). His other
complaints about the lack of facilities at other prisons were declared inadmissible.
(Noted in 2007] EHRLR 106)

In Istrath v Moldova, 27 March 2007 the European Court found a violation of article 3
with respect to the conditions of the prisoner’s detention in two remand centres. In
particular the Court held that the total lack of medical care for three hours after he
had haemorrhaged, and his chaining to a bed after his operation amounted to inhuman
and degrading treatment. The Court also found a violation of article 3 with respect his
detention at the detention centre – the Court noting that the CPT had found that the


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food served was repulsive and almost inedible and that the cells were overcrowded and
contained insects and rodents.

The government are proposing to abolish the post of Chief Inspector of Prisons and
merge the post with that of a new criminal justice regulator (See ‘Prison Inspector Role
to be abolished by Reid’ The Guardian, June 29 2006). The Home Secretary has now
abandoned all proposals for a merger (Merger dropped, The Times, 18 October 2006)

In Frerot v France, 12 June 2007 it was held that there had been a violation of
article 3 when the applicant had been subjected to regular arbitrary and
discretionary strip searches and had been penalised for refusing to submit to them.
The arbitrary nature of the regime to which he was conducted meant that the
threshold had been met.

Release and sentencing of prisoners

The House of Lords have ruled that individuals who were wrongfully convicted could have
their damages award reduced to take into account the living expenses of keeping them in
prison for that time: O’Brien v Assessment Officer [2007] UKHL 10 (The Times, March
15, 2007, page 29)

In R (Wellington) v Home Secretary [2007] EWHC 1106 it was held that a life sentence
without the possibility of parole or remission was not by itself a violation of article 3.

There has been a wealth of case law regarding the legality of the sentencing and release
of prisoners. Despite the decisions in Stafford and Anderson and Taylor, below, the
domestic courts have upheld a number of provisions with respect to such matters, whilst
following the European Court on other provisions and powers.

The Whole life sentence

In Leger v France, 11 April 2004 it was held that there had been no violation of article
5, or 3, when the applicant had served 41 years in prison as a result of the abduction and
murder of a child. In the Court’s view the initial fixed sentence (15 years) and his
continued detention on the basis of the perceived and continued risk to the public was
not disproportionate or arbitrary. His possible release had been considered on several
occasions and the reasons for his continued detention were regarded as reasonable
having regard to his initial crime and subsequent behaviour. Neither was there a breach
of article 3, see above. The case was heard by the Grand Chamber of the European
Court on 30 April 2008.

Mandatory Lifers

Following the decisions in Stafford v United Kingdom, the Home Secretary introduced
interim measures, pending primary legislation, which requires the Home Secretary to
normally accept the Parole board's recommendation for release of a mandatory lifer
after the serving of the tariff period. In addition, following the House of Lords'
decision in R (Anderson) v Secretary of State for the Home Department, the Home
Secretary the Home Secretary announced that legislation would be introduced to
establish clear guidance by which the courts can fix tariffs for mandatory life sentence


                                            104
prisoners. These proposals, including a power of the Attorney-General to challenge any
tariff that departs from those principles, are now contained in the Criminal Justice Act
2003. In R v Sullivan, The Times, 14 July 2004 the Court of Appeal held that judges
should follow the guidelines laid down in that Act when determining the minimum term
for those whose offence was committed after May 2002, but whose sentence was
imposed subsequent to the commencement date of the 2003 Act.

In R (Middleton) v Secretary of State for the Home Department [2003] EWHC 185, it
was held that following the decision in Stafford, the Secretary of State could continue
with his powers to decide on the release of mandatory lifers provided his decision was
not arbitrary. A member state was allowed a reasonable time to consider the
implementation of interim measures prior to legislative change, and in this case the
Secretary of State had acted lawfully in delaying his release and then recalling him for
breach of licence conditions. In R (Cole, Rowland and Hawkes) v Secretary of State for
the Home Department, Divisional Court 10 July 2003, it was held that the Home
Secretary had acted lawfully in not reviewing mandatory lifers’ tariffs pending the
introduction of new powers. It was held that the Home Secretary was not a court within
the Criminal Appeals Act 1968, and thus had the power to set a higher tariff following a
re-trial. Further, he had not erred in following Anderson and Taylor in refusing to review
the tariffs of two mandatory life sentence prisoners.

However, in King v Secretary of State for the Home Department [2003] EWHC 2831
(Admin), it was held that there had been a violation of article 5(4) of the Convention
where a mandatory lifer’s release had not been considered for nearly four years. In this
case the High Court held that while allowing a period so as to furnish the Parole Board
with more information had practical advantages, it did not give weight to the right of
the prisoner to have the lawfulness of his continued detention renewed. The entitlement
to such a review was not dependent upon the merits of the case, or whether the
prisoner was in open or closed conditions. There had been a violation of article 594) in
this case and although there was a prima facie right to damages under article 5(5), no
such award should be given in this case because of the prisoner’s recent conduct (failing
2 mandatory drugs tests which had led to him being returned to closed conditions). In
such a case it was very unlikely that there had been any loss suffered by the prisoner.

In Wynne v United Kingdom, decision of the European Court of Human Rights 16 October
2003, it was held that there had been a violation of articles 5(4) and (5) of the
Convention where a mandatory lifer complained that he had not had a proper review of
the lawfulness of his detention because the Parole Board did not have the power to
order release and had not provided an oral hearing. A violation of article 5(5) was also
found because there was at that time no possibility of obtaining compensation for a
violation of article 5. See also King v United Kingdom, The Times, 29 April 2004, where
the Court held that there had been a violation of article 5(4) where the prisoner’s
continued detention was not reviewed by an independent body having the power to order
release. The Court also held that article 5(4) was violated because the prisoner was
denied an oral hearing before the Parole Board where he could cross examine witnesses
as to his perceived risk to the public. The Court also found a violation of article 5(5) as
he was denied the opportunity of obtaining compensation for his allegedly unlawful
detention.




                                           105
In Day v Secretary of State for the Home Department, 24 June 2004 it was held that
the power of the Home Secretary to fix a date for a review of the prisoner’s detention
did not violate article 5 of the Convention as the decision was not that of the Parole
Board and was in any case susceptible to judicial review. However, in this case the
setting of the review date at 21 months was unlawful as being in violation of article 5,
which guaranteed a speedy review. The decision of the European Court of Human Rights
in Hirst v United Kingdom was applied. The court felt a delay of such a period would
normally be contrary to article 5 and the relevant case law of the European Convention
unless the prisoner was particularly dangerous and that the delay in the present case
was unreasonable in the present case.

In R (Wright) v Home Secretary, 30 November 2004, the High Court held that
compensation for unlawful detention under article 5(5) was only payable in respect of a
breach of article 5 that related to detention after the Human Rights Act 1998 came
into effect. This decision was upheld by the Court of Appeal ([2006] EWCA Civ 68,
where it was held that the source of the prisoner’s article 5 rights was the 1998 Act,
and that any victim would have to prove that the violation took place after the coming
into force of the Act. There was no basis for giving article 5(5) a different
interpretation and applying that provision retrospectively.

In R (Hammond) v Home Secretary, The Times, December 2 2005 it was held that
Sched 22, para 33 of the Criminal Justice Act 2003 was incompatible with article 6 of
the European Convention because it denied a judge setting a minimum term the power to
allow an oral hearing even where he considered it essential for the fair determination of
the of an existing prisoner's minimum term.

Discretionary Lifers

In Easterbrook v United Kingdom, The Times, June 18 2003, the European Court held
that there had been a violation of article 6(1) when the Home Secretary had fixed the
applicant’s discretionary life sentence tariff. The fixing of a tariff for the
discretionary lifer was a sentencing function and should have been carried out by a court
and not the executive, albeit with judicial guidance and agreement. In addition, it was
accepted that there had been an unreasonable delay in fixing the tariff, giving rise to a
further violation of article 6. Further, in Waite v United Kingdom, The Times,
December 31 2002, the European Court of Human Rights held that the recall of
discretionary life sentence prisoner without being afforded the right to an oral hearing
was incompatible with article 5(4) of the Convention.

In R (Nejad) v Secretary of State for the Home Department, The Times, 13 February
2004, it was held that in those remaining cases where the Home Secretary had the
power to fix a sentence for discretionary life sentence prisoners, that the Home
Secretary should always follow the judicial view unless there were good reasons to
depart from such view and the Home Secretary had put forward such reasons for
departing from the judicial view. Although the Home Secretary had the power to set the
tariff, and the legislation could not be read down to make the Act compatible with
article 6 of the Convention, the Home Secretary had to follow the judicial view. In this
case the Home Secretary has simply put forward his own different view of the matter,
which he was not entitled to do.




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In R (D) v Secretary of State for the Home Department, The Times, 31 December 2002
it was held that the power of the Home Secretary to detain a discretionary life
sentence prisoner who had since his imprisonment been transferred to mental hospital,
was contrary to article 5(4) of the European Convention. Accordingly, his statutory
power under s.34(5) of the Criminal Justice Act 1991 was declared incompatible with the
applicant's Convention rights. In Hutchison and Reid v United Kingdom, The Times, 26
February 2003, the European Court held that there had been a violation of article 5(4)
when a patient’s release had been unreasonably delayed. The Court also held that the
burden of proof placed on the applicant to show that he should no longer be detained
was inconsistent with that article.

In R (P) v Secretary of State for the Home Department, decision of the High Court, 23
December 2003, it was held that the fact that, on the expiry of his tariff, a
discretionary life prisoner had no right to apply to the Parole Board and remained liable
to detention as a lifer unless and until a mental health review board made a decision in
his favour, did not infringe his rights under Article 5(4) of the European Convention. In
the court's view there was no requirement for mandatory joint hearings of mental
health review tribunals and Discretionary Lifer Panels of the Parole Board.

In Blastock v United Kingdom (Application No 59512/00), the European Court declared
admissible a claim that there had not been a speedy review of the continued lawfulness
of his detention as there had been a lapse of 22 moths since the last review. However
the Court declared inadmissible the claim that his categorisation decision should be
made by a court like body (article 5 was not engaged by such a decision) and that the
timing of the review should be set by a court. On 21 June 2005 it was held by the
European Court that there had been a violation of article 5(4) of the Convention when a
life sentence prisoner complained about the lapse of time (22 months) between his
reviews for release and his transfer to open conditions. The applicant had applied for
transfer to open conditions as a pre-requisite of his post-tariff release and had to wait
a further 22 months before the Lifer Panel re-considered that request. The Court held
that the authorities had failed to have due regard to the principle of expedition and also
found a violation of article 5(5) because the applicant had no possibility of obtaining
compensation in domestic law at that time.

Prisoners detained at Her Majesty’s Pleasure

In R (Smith) v Secretary of State for the Home Department, The Times, April 11 2003,
the Divisional Court held that where an offender under 18 had been detained during her
Majesty's Pleasure, the policy of the Secretary of State to refuse to keep open the
possibility of a further review of the claimant's tariff was unlawful. Following, ex parte
Venables and Thompson ([1998] AC 407), it was held that when fixing the tariff the
secretary was required to keep open the possibility of reviewing the tariff, fixed by the
Secretary in accordance with the recommendations of the Lord Chief Justice, in the
light of changing circumstances. On appeal, it was confirmed by the Court of Appeal
([2004] EWCA Civ 99) that the Home Secretary had to provide a periodic review of
those tariffs. It was also held that such a prisoner was not entitled to an oral hearing in
every case and that in the present case an oral hearing would have delayed the
proceedings and would not have been in the interests of the detainees. Easterbrook v
United Kingdom was not authority for the principle that an oral hearing was required in
every case. On appeal to the House of Lords (R (Smith) v SSHD [2005] UKHL 51 it was


                                            107
held that the minimum term of a young offender should be subject to review even
though it had been set judicially. Although article 6 would preclude a sentence being
increased, it did not preclude the reduction of that sentence.

In R (Dudson) v SSHD [2005] UKHL 52 the House of Lords held that there was no
automatic right to an oral hearing where a young person’s tariff was being reviewed. A
fair and public hearing under article 6 did not require an oral hearing at every stage of
the proceedings. D had had a fair hearing at this trial. The overriding question was
whether the issue to be dealt with could be dealt with properly as a matter of fair trial
without hearing the applicant orally. An oral hearing would have caused considerable
delay and would not have served any useful purpose; there was no argument that an oral
hearing was needed over and above the argument that it was required as part of the
normal process.



In R (Henry) v Parole Board, 25 March 2004, the High Court held that the Parole Board
had not put the burden of proof on the prisoner to show that he was no longer a danger
to the public when being considered for release on licence. In any case, if the statute
did place the burden on the prisoner in such cases, the court felt that that would not be
incompatible with article 5 of the European Convention. The Court distinguished the
European Court decision in Reid v United Kingdom, which was concerned with the
continued detention of a person with an unsound mind. It is not certain how the case can
be reconciled with Sim, below, which held that s.44 of the Criminal Justice Act had to
be construed so as to allow release unless the Board was positively satisfied that he was
a risk to the public.

Imprisonment for Public Protection

In Wells v Parole Board [2007] EWHC 1835, it was held that a person given an
indeterminate sentence under s.225 of the Criminal Justice Act 2003 for public
protection had been unlawfully detained in breach of article 5 of the Convention. The
court found that the fixed term and the public protection period fulfilled the
requirements of article 3 but that on the facts the prisoner was denied access to the
means by which his continued risk could be assessed. Thus because the prison service
had not put into place the necessary programmes to assess risk, there was no effective
way in which that risk could be assessed by the Parole Board so as to judge whether
continued detention was necessary. The decision in Wells was followed R (James) v
Secretary of State for Justice [2007] EWHC 2027, where the Secretary’s management
of such prisoners was declared unlawful and unjustified for the reasons identified in
Wells.

The above cases were upheld by the Court of Appeal: Secretary of State for
Justice v James and Walker [2008] EWCA Civ 30 where it was held that the
Secretary was in breach of his public law duty to give effect to the provisions that
he had introduced by statute to allow the Board to assess the risk of such
offenders and to decide on release. However the Court of Appeal held that it was
erroneous for the lower court to find that the detention of the prisoners beyond
the tariff terms was automatically unlawful. The detention would only become
unlawful where it was no longer necessary to protect the public or where there had
been an arbitrary delay;


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Automatic Life Sentences

In R v Drew, The Times, May 9 2003, the House of Lords held that an automatic life
sentence imposed on a mentally ill defendant convicted of a second serious offence was
not wrong in principle and was not constitute inhuman or degrading punishment so as to
be contrary to article 3 of the European Convention. The House of Lords noted that
both the Secretary of State and the courts had to act compatibly with the Convention
when exercising their discretion in particular cases and that the defendant would always
be ensured of proper medical treatment. The penalty was not therefore arbitrary
and/or in violation of article 3.

In Panayi v Cyprus, 12 February 2008 the European Court held that the imposition
of an indeterminate life sentence did not violate articles 3, 5 and 14 of the
Convention. Although the imposition of an irreducible life sentence would be
inconsistent with article 3 that would be the case where there was no hope,
prospect or possibility of release. In the present case although a whole life
sentence was possible there were provisions fro suspension and remission of the
sentence. Such a sentence entailed a level of anxiety, but not one in violation of
article 3 given the possibilities of release. However, there was a breach of article
7 as the scope and level of execution of the life sentence was not formulated with
sufficient precision at the time of his sentence.



Determinative sentences

In R v Parole Board, ex parte Sim, The Times, 21 February 2003, it was held that article
5 of the Convention was engaged when a prisoner had been recalled and detained for
breach of an extended licence, because that article was not satisfied by the original
sentence of the court; R v Parole Board, ex parte West, The Times, November 21 2002
and R (Giles) v Parole Board [2003] 2 WLR 196, were distinguished ( Giles was upheld in
the House of Lords, see below). It was also held that recall was only justified when
there was a risk of re-offending related to offences of a similar nature to the
triggering offence. In addition, it was held that s.44A of the Criminal Justice Act 1991,
which allowed release if the Board was satisfied that it is no longer necessary for the
protection of the public for the prisoner to be confined, should be read in such a way
that the Board would reach that conclusion unless positively satisfied that that the
continuing detention was necessary in the public interest. The decision in Sim was upheld
in the Court of Appeal by a decision of 19 December 2003: The Times, January 2 2004.

The decisions in Giles and West were upheld by the Court of Appeal in R (Smith) v Parole
Board and another, The Times, 3 September 2003, where the Court of Appeal confirmed
that neither article 5 nor 6 of the Convention applied to a case where the prisoner's
licence had been revoked and the prisoner returned to prison without an oral hearing.
However, in R v (Smith) v Parole Board, The Times, 27, January 2005, the House of
Lords held that the common law duty to act fairly, although not requiring the Board to
give an oral hearing in every case where a prisoner released on licence was recalled to
prison, was not so constricted as to rule out the need for an oral hearing in some cases.
In the present case the prisoners should have been offered an oral hearing. The House
of Lords agreed that article 6 was not engaged, because there was no punishment at


                                           109
issue, and held that the recalls were still covered by the original sentence so as to
satisfy article 5(1). The House of Lords also held that article 5(4) was satisfied,
provided the procedure complied with basic fairness.

In R (Spence) v Secretary of State for the Home Department [2002] EWHC 2717
Admin, it was confirmed that the Home Secretary had the power to make binding
decisions regarding the detention of a prisoner and that in this case had the power to
determine the periods between parole reviews. Such a decision did not engage articles 5
or 6 of the Convention, but must be exercised lawfully and speedily so as to comply with
article 5(4). This was followed by the Administrative Court in R v (Clough) v Secretary
of State for the Home Department [2003] EWHC 597 Admin, where the Home
Secretary had increased the time before the prisoner's next review six months beyond
that recommended by the Discretionary Lifer Panel.

In R (Uttley) v Secretary of State for the Home Department, The Times, 4 August
2003, it was held that the imposition of a one-year licence on a prisoner who had served
a 12-year sentence for rape and sexual assault was retrospective and thus contrary to
article 7 of the Convention. The imposition of the licence was designed to protect the
public once a prisoner was released. The decision overturned the decision of the High
Court where it was held that the imposition of the licence was to protect the public and
was not punitive. Thus, in this case as the prisoner had been subjected to the provisions
of the Criminal Justice Act 1991 in respect to acts committed before the Act came into
force, he had been subjected to a heavier penalty within article 7 of the Convention.
The Court of Appeal declared the relevant provision incompatible with the Convention
under s.4 of the Human Rights Act 1998. (The Home Secretary intends to appeal to the
House of Lords and in the meantime to continue using those statutory powers). The
Court of Appeal decision was then overturned by the House of Lords: [2004] UKHL 38.
The House of Lords held that article 7 of the Convention, which provides that no heavier
penalty should be imposed than the one that was applicable at the time the offence was
committed, referred to the maximum penalty prescribed by law for the offence in
question a the time when it was committed, and not the penalty that would probably have
been imposed on a particular offender at the time.

See also R v McGuigan, The Times, October 21 2005, dealt with under Parole and Recall
the Court of Appeal held that

However, in R v R (Sentencing: extended licences), The Times, August 4 2003, the Court
of Appeal held that where a sentence included an order for an extended licence period
in relation to sexual offences committed before the legislation came into effect, that
licence was purely protective and did not constitute a punishment within article 7.

In R (Clift) v Secretary of State for the Home Department, The Times, June 25 2003,
the High Court held that the difference in treatment in the determination of release on
parole between prisoners serving less than 15 years and those serving 15 years or more
was justified and thus not in violation of articles 5 and 14 of the Convention. It was
sensible for the law to choose a particular period of years and any discrimination that
there might be against those whose sentence was in the region of 15 years or more was
justified. This decision was upheld in the Court of Appeal on 29 April 2004 – it was
perfectly reasonable for the law to draw the line and allow the Home Secretary to
remain democratically countable for the release of those prisoners committing serious


                                            110
crimes justifying longer sentences. The House of Lords overruled that decision on 13
December 2006: R (Clift) v Home Secretary; Hindawi and Headley v Home Secretary
[2006] UKHL 54 and held that the early release provisions contained in the Criminal
Justice Act 1991 (for long term prisoners and those awaiting deportation) were
incompatible with articles 5 and 14 of the Convention because they denied those
prisoners the right of access to the Parole Board. In their Lordships’ view the right to
early release, where domestic law provided such a right, clearly engaged article 5 and
needed to be inspected under article 14. Long term prisoners were being treated
differently from short-tem and discretionary life sentence prisoners and the factor of
risk to the public was no longer a valid one, having become since 2002 ( Stafford) an
indefensible analogy, a criteria with no political content and one which the Home
Secretary could not bring any expertise. Similarly, those prisoners subject to
deportation should not be subject to a different regime thus depriving them of the
Parole Board’s powers of release. The decision was not a political one and was no longer
capable of rational justification. However, in Clift’s case he had not been treated
differently on grounds of ‘other status’ within article 14 – that referred to personal
characteristics and not to what the person had done in the past; in this case the length
of the sentence was not a personal characteristic falling within art 14.

The decision in Clift, and Giles, below, was clarified by the Court of Appeal in R
(Black) v Secretary of State for Justice [2008] EWCA Civ 359. The Court of
Appeal held that the provisions in the Criminal Justice Act 1991 applying to these
long term prisoners engaged article 5 and were incompatible with article 5(4) of the
Convention. According to the Court of Appeal, article 5 can apply to determinate
sentences and requires the release decision to be made by a court like body. In
Giles the ultimate decision was made by the Parole Board, who satisfied the court
like requirements in article 5(4). Clift recognised that article 5 was engaged, even
though it dealt with the case under article 14 of the Convention. In case such as
Black and Clift, the ultimate decision on release was made by the executive and was
thus against the spirit and case law of the European Convention on Human Rights.

Longer than normal sentences

In R (Giles) v Secretary of State for the Home Department, The Times, 1 August 2003,
the House of Lords upheld the Court of Appeal decision to the effect that a prisoner
serving an extended sentence, because the court had considered that the public
required protection from serious harm from the prisoner, did not attract the protection
of article 5(4) of the Convention, the original sentence meeting the requirements of
article 5. Thus, the prisoner had no right to an oral hearing before the Parole Board
after the punitive period of his sentence had expired. Therefore, the House of Lords
equated such sentences, passed by virtue of s.2(2)(b) of the Criminal Justice Act (now
contained in s.80 of the Powers of Criminal Courts (Sentencing) Act 2002) as equivalent
to determinate sentences, with the original sentence satisfying article 5(1).

Parole and Recall

In Brooke and others v Secretary of State for Justice [2008] EWCA Civ 29 the
Court of Appeal upheld the High Court decision to the effect that the Parole Board
did not meet the requirements of independence and impartiality to satisfy either
the common law or article 5 of the European Convention on Human Rights. Once the


                                           111
board had changed from one of advising the secretary of state on release to one
assessing whether continued deprivation of liberty was justified there was a need
for independence. The executive influenced the board with respect to the
secretary’s directions and via use of his control over the appointment of the board’s
members and thus sought to influence the manner in which they carried out their
task. This had blurred the distinction between the judicial function of the board
and its administrative activities of offender management. Also the restriction of
funding – which pressured the board to alter its procedure - although not affecting
impartiality, was inconsistent with the proper role of a sponsor.

In R (Brooks) v Parole Board and another , decision of the Administrative Court 11 June
2003, it was held that it was permissible for the Board to consider hearsay evidence in
deciding the recall of a discretionary life sentence prisoner. The primary responsibility
of the Board was to protect the public and this duty took priority over the duty of
fairness towards the prisoner. Consequently, it would be rare where it would be unlawful
to admit hearsay evidence where the witness was unable or unwilling to attend the
hearing. Therefore, there had been no violation of article 5(4) when the Board
considered an allegation of rape from the prisoner’s partner in deciding to recall him to
prison. The decision was upheld by the Court of Appeal: [2004] EWCA Civ 80.

In R (Martin) v Parole Board, the Times, May 15, 2003 it was held that the Parole Board
was entitled to take into account the prisoner's lack of remorse in killing a trespasser in
assessing the prisoner's future risk. Although Martin had admitted the offence, his lack
of remorse was a relevant factor in determining his release. (See also Samuels, In Denial
of Murder: No Parole, in Additional Reading, below. (Tony Martin was released on
Monday, 28 July 2003)

The Release of Short Term Prisoners on licence (Amendment of Requisition Period)
Order 2003 provided that prisoners with terms of imprisonment of four months or more
but less than 18 months will serve one quarter of their sentence before becoming
eligible for release. For those serving short-term sentences of 18 months or more will
be eligible after 135 days less than one half of their term.

In R (Cawser) v Secretary of State for the Home Department [2003] EWCA Civ 1522
the Court of Appeal held that the Home Secretary had a limited public law duty to
provide sex offender programmes to for prisoners and had a duty to act rationally in
allocating such places. However, the courts would not determine what resources should
be made available and that his decisions in this case were not open to criticism. The
majority of the Court held that the failure to provide such a course would not violate
Article 5(1) of the Convention even if parole were refused because the prisoner had not
had the opportunity to attend such a course and such attendance was a condition of
release. However, Arden LJ held that in an exceptional case there might be a violation
of article 5(1) where release was prolonged as a result of such failure. In such a case
there would be a break in the causal link between conviction and the period of sentence.

See also R (Cooper) v Parole Board, 18 May 2005

In R (Hindawi) v Secretary of State for the Home Department , The Times, 5 February
2004, the High Court held that the refusal of the Home Secretary to allow the Parole
Board to consider the release of two long-term prisoners who were liable to be deported


                                            112
on the expiration of their sentences, was unlawfully discriminatory within article 14 of
the European Convention. This decision was overturned on appeal by the Court of Appeal
([2004] EWCA Civ 1309. The Court of Appeal held that the right to seek parole was not
a right which fell within and engaged article 5 of the European Convention; consequently
the prisoners could not rely on article 14 of the Convention and the Home Secretary was
not obliged to refer for parole those long term prisoner who were subject to
deportation. That decision has now been overturned in the House of Lords, see above
under determinative sentences.



In Roberts v Parole Board and another [2004] EWCA Civ 1031 the Court of Appeal held
that where evidence before a parole Board came from a source who would be at risk
were his identity to be disclosed to the prisoner, the board had an inherent power to
devise procedures to protect that source, including a direction that his evidence should
be withheld from the prisoner or from his legal representatives. The board also had the
power, through the specially appointed advocate procedure, to mitigate any unfairness
to the prisoner caused by the withholding of such evidence. The application of the
specially appointed advocate procedure was not limited to cases involving national
security. No distinction was to be drawn between the need to protect the interest of
the State and the need to protect an individual if that was necessary. This decision was
upheld by the House of Lords (The Times, 8 July 2005). The House of Lords held (by a
majority of 3-2) that the procedures were expressly allowed under the Parole Board
Rules 2004, and that in any case were to be implied form the Board’s duty to carry out
a hearing in a practical and appropriate manner, ensuring that the prisoner was fairly
treated. The procedure of appointing a special advocate who would have access to
closed information, did not act to the detriment of the prisoner; rather it mitigated the
disadvantage that the prisoner would otherwise suffer. The minority held that such a
power was not to be implied from existing statutory powers and that such a power to
violate the rules of natural justice needed to be granted expressly.

In R (Gardner) v Parole Board, December 21 2005 it was held that the Board could
exclude the prisoner from the hearing when hearing evidence from a vulnerable witness
and where the prisoners’ legal advice was present and allowed to cross examine the
witness. This decision was upheld by the Court of Appeal: [2006] EWCA Civ 1222. The
overall question was whether the proceedings as a whole were fair and the claimant did
not have an absolute right to be present when his former wife gave evidence. His
position had been adequately safeguarded by his legal representative and he had a fair
hearing before the panel.

In R (Morecock) v Parole Board [2004] EWHC (Admin), it was held that the Parole
Board could confirm a prisoner’s recall to prison on the basis of a risk of him committing
driving offences on his release, even though that was not the reason for his original
detention (burglary). Article5 of the Convention, and Stafford v United Kingdom, were
not engaged.

In R (Hirst) v Secretary of State for the Home Department and another, The Times, 4
July 2005, it was held that there had been a violation of article 5(4) of the Convention
when a life sentence prisoner had been recalled to prison for breach of his license
conditions and was not provided with reasons for the recall for 8 days. This had delayed
his giving representations to the board and had thus delayed the board’s ultimate



                                           113
decision to release him. He was awarded £1,500 in damages. On appeal with respect to
the compatibility of the recall procedure with article 5 of the ECHR, the Court of
Appeal held ([2006] EWCA Civ 945) that the scheme under s.32 of the Crime
Sentences Act 1997 was consistent with article 5. The link between his sentence and
his article 5 rights was not broken by recall, although such a recall would need to be in
circumstances sufficiently connected with his initial sentence. In this case his
(mis)behaviour on release was sufficiently connected to risks of public safety so as to
justify his recall.


In R v McGuigan, The Times, October 21 2005, the Court of Appeal held that it was not
unlawful for the Secretary of State to recall a prisoner for breach of his licence
conditions, even though such power was exercised with respect to provisions (s.116
Powers of Criminal Courts (Sentencing) Act 2000) which came into force after the
commission of the original offence but before sentencing. The decision of the House of
Lords in Uttley (above) was applied and thus there was no violation of article 7 of the
European Convention.

See also R (Buddington) v Secretary of State for the Home Department, The Times, 20
October 2005.

In Roberts v Home Secretary, Court of Appeal 29 November 2005 it was held that the
detention of a prisoner following the revocation of his licence and recall to prison was
neither arbitrary or disproportionate and did not therefore violate article 5(40 of the
Convention. The Secretary of State did not have a general duty to review the revocation
of any licence whenever there was new material before him.

In Stellato v Home Secretary [2006] EWCA Civ 1639 the Court of Appeal held that a
long term prisoner continued to be entitled to the release provisions contained in the
1991 Criminal Justice Act, despite his licence being revoked and him being recalled to
prison after April 4, 2005 – when the provisions of the 2003 CJA came into force. Such
an interpretation was not intended by Parliament and would run counter to the principle
that a prisoner should not be disadvantaged by a change in sentencing policy. This
decision was upheld by the House of Lords on 14 March 2007: [2007] UKHL 5


Security Classification and confidentiality/Segregation


In R (Lord) v Secretary of State for the Home Department [2003] EWHC 2073 (Admin)
the High Court held that providing a Category A prisoner with the gist of the reports
prepared by prison staff as the basis of his security classification was neither
satisfactory nor fair. The prisoner should be entitled to see the gist of all reports so
that he was aware of any matter of fact or opinion relevant to his catergorization and a
gist that concealed that the views were not unanimous failed to comply with the
standards laid down in cases such as Doody [1994] 1 AC 531 and McAvoy [1998] 1 WLR
790. In addition there had been a breach of the Data Protection Act 1998. Although
there may be cases where the Secretary of state might rely on s.29 of the t to justify
less than full disclosure, that section could not support a policy of blanket non-
disclosure. The applicant had established the prima facie right to disclosure of his
Category A reports in full and the secretary had failed to establish any basis for non-
disclosure.


                                            114
In SP v Home Secretary [2004] EWHC 1418 (Admin), it was held that fairness required
that a claimant prisoner be allowed to make representations before an order for
segregation within a young offender’s institution was made. However the court held that
such a right might not exist where there were reasons of good order, discipline or
urgency or other relevant circumstances requiring otherwise. In coming to that decision,
the High Court refused to follow the decision of the Court of Appeal in R (Hague) v
Deputy Governor of Parkhurst Prison, where it was held that the prison authorities owed
no such duty to provide reasons before segregating a prisoner. On a separate issue, the
High Court held that the prison authorities were not obliged to provide to every
prisoner the benefits of the full regime (in this case purposeful activity) whist the
prisoner was in segregation.

In R (Palmer) v Secretary of State for the Home Department, July 19 2004 it was held
that there was no right for a prisoner serving a determinate sentence to make
representations prior to his recategorisation – R (Hirst) v Secretary of State for the
Home Department (2001) distinguished. However, on the facts the court held that the
Home Secretary had erred in taking into account the prospect of adverse publicity and
the prisoner's financial situation in making his decision on the category of the prisoner.

In Cooper v HM Prison Service [2005] EWHC 1715 (Admin) it was held that it was not
irrational to re-categorise the prisoner on discovering that he was to face charges for
an assault committed before the offence for which he was given a life sentence. That
fact increased his risk of escape and risk to the public. Further, there had been no
procedural breach as he was aware of the general reasons for the decision and had been
allowed to make appropriate representations (R (Hirst v SSHD (2001) applied).

Access to the courts and legal advice

The right of the prison authorities to insist that prisoners obtain prior authorisation
before exchanging legal documents with their legal advisers, and a policy whereby
authorisation would only be given in exceptional circumstances where such prior
authorisation had not been obtained, was held to be both lawful and rational by the High
Court in R (Cannan) v Secretary of State for the Home Department, The Times , January
30 2003. In the court's opinion the policy was not disproportionate and did not unduly
impede the prisoner's access to legal advice. However, on appeal (October 9 2003) the
Court of Appeal, whilst upholding the general policy, held that the requirement that
there had to be exceptional circumstances to hand out documents in the absence of
clearance by the authorities was an unjustifiable restriction of the prisoner's rights
under article 6 of the Convention.

In Cooper v HM Prison Service, above, it was held that the decision not to allow the
prisoner access to his personal computer in his cell was not irrational or in violation of
his right to equality of arms when bringing judicial proceedings against the prison
service (R (Ponting) v HMP Whitemoor and another applied. In the court's view the
prisoners' personal circumstances had been considered by the prison governor, and
there was no evidence to suggest that the general policy of not allowing access to
personal computers should be waived in this case or would have affected his potential
legal claims.




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See also Watkin v Home Secretary [2004] EWCA Civ 966, dealt with under Prisoners'
actions in Tort, below.


Disciplinary Proceedings

In Ezeh and Connors v United Kingdom (The Times, October 12, 2003) the Grand
Chamber of European Court upheld the decision of the European Court that there had
been a violation of article 6 of the European Convention when prisoners had received
additional days in prison as a result of prison disciplinary charges. In the Grand
Chamber's view, the offences were of 'mixed' criminal and disciplinary nature, were
imposed after a finding of culpability and were imposed to both punish the offenders
and to deter them in the future. Although it was accepted that the imposition of the
additional days was lawful, the prisoners were detained beyond a date at which they
would normally be released. Accordingly the additional days constituted fresh
deprivations of liberty imposed for punitive purposes. (The changes made to the Prison
Rules as a consequence of the European Court's initial decision will presumably remain in
place).

In Whitfield and others v United Kingdom, decision of the European Court 12 April
2005, it was held that there had been a violation of article 6(1) when four young
offenders had been awarded additional days in the course of disciplinary proceedings
brought against them The Court held that the proceedings s were not impartial under
article 6 as they lacked both structural independence and the objective appearance of
such. There had also been a breach of the right to legal representation under 6(3) when
all requests for such had been denied. This case confirms that if the disciplinary charge
amounts to a criminal offence under article 6, which it always will if additional days are
imposed, then the governor will not be an impartial tribunal for the purposes of article 6.

In R (Hasse) v Independent Adjudicator [2007] EWHC 3079 it was held that the
presentation of the prosecution case in a disciplinary adjudication by a prison
officer who may have been a witness to the alleged offence was not incompatible
with article 6 of the Convention. The court drew a distinction between the
requirements in military discipline (R v Stow) and prison discipline on grounds such
as the seriousness of the offence, the need for speed and the inquisitorial nature
of the proceedings.

In Black v United Kingdom, 16 January 2007, the European Court found a violation of
article 6 when a prisoner had been awarded 5 additional days for refusing to obey a
lawful order. The Court found that following Ezeh and Connors and Young v UK, below,
the proceedings constituted a criminal charge. Although the charge was disciplinary in
nature, the sanction and potential sanction were serious enough to constitute a criminal
charge. Consequently as the judge was connected to government and the prison he had
not received a fair trial before an independent and impartial tribunal. Further, there
was a breach f article 6(3) as there was no legal representation.

See also Young v UK (16 January) where a woman prisoner had been awarded 15
additional days for refusing to provide a urine sample for a mandatory drugs test




                                           116
In Tangney v Governor of Elmley Prison and another [2005] EWCA Civ 1009 the Court of
Appeal held that the right to an independent adjudicator under the Prison Rules as
amended after Ezeh and Connors did not apply to life sentence prisoners because
additional days could not be awarded to such prisoners. In this case the penalty of
cellular confinement did not engage article 6 (or the rules of natural justice). Although
that penalty might affect his parole chances, the effect of such was not imposed by the
disciplinary adjudication any decision of the Parole Board would be made on risk to the
public rather than punishment to the prisoner.

In Napier v Home Secretary the High Court held that the remission of additional days,
which had been imposed on the prisoner in breach of the European Court’s ruling in Ezeh
and Connors above, was a sufficient remedy for the prisoner. In the court’s view it was
not necessary for the Home Secretary to quash that decision. The court felt that on a
proper reading of Ezeh, prison disciplinary charges were only ‘criminal’ within article 6
because of the imposition of additional days. Thus, once that penalty was remitted it was
it necessary to quash the original decision in order to comply with article 6 of the
Convention and to provide just satisfaction.

In R (Bannatyne) v The Independent Adjudicator and the Home Secretary , 22 July
2004, the High Court held that the fact that prison disciplinary proceedings were
generally not held in public was not contrary to article 6 of the European Convention. In
the court's view it had been accepted in Campbell and Fell v United Kingdom that that
aspect of article 6 was not absolute and that there were good policy reasons for not
allowing a public hearing in disciplinary proceedings. The recent decision of the European
Court in Ezeh and Connors did not establish that principle.

In R (Szuluk) v Home Secretary, 29 October 2004, the High Court held that
proceedings for disciplinary action of a prisoner for refusing to undergo a drugs test
were unfair. The adjudicator had not received valuable evidence and without such should
not have made a decision. Further, a prisoner witness had not been called to cast doubt
on the reasonableness of the prison officer’s suspicion.

In R (Al-Hasan and Carroll) v Home Secretary, The Times, February 18 2005, the House
of Lords held that there was an appearance of bias when disciplinary proceedings were
chaired by the Deputy Governor who had been present when the governor had given
instructions that the prisoner be subject to a squat search. The House of Lords
accordingly quashed the disciplinary award. In their Lordships' view the deputy governor
should have disclosed this fact and asked for the party’s permission to proceed, or stood
down.

See also R (Greenfield) v Home Secretary, The Times, 18 February 2005, dealt with
under the Human Rights Act, above

Prisoner’s private and family life

In R (Davies) v Secretary of State for the Home Department , 16 June 2004, the
Administrative Court held that there had not been a violation of article 8 of the
Convention when a sex offender had conditions imposed on his release, which restricted
his access to his own property. The conditions were imposed to protect the victims from




                                           117
stress and anxiety and applied only for 18 months. Consequently they were proportionate
under article 8(2). (See ex parte Craven in the main text).

In R v D [2005] EWCA Crim 2951, the Court of Appeal varied a judge’s order, made
under s.104 of the Sexual Offences Act 2004, which prohibited the appellant for an
indefinite period (who had been convicted of sexual offences against his daughter) from
contacting his 10-year old son. In the Court of Appeal’s view such orders should be
flexible and reflect the family court’s jurisdiction on such matters.

In R (CF) v Secretary of State for the Home Department [2004] EWHC 111, it was held
that the Secretary of State had acted unlawfully in separating the prisoner from her
baby without affording her and the local authority the opportunity of making meaningful
representations. However, the court dismissed her claims that the Secretary had acted
unlawfully by considering that the child’s interests would be better served by living in a
normal environment with her maternal grandparents. Such a decision passed the test of
proportionality and anxious scrutiny as laid down in ex parte Daly. The court thus
quashed the decision and ordered that the matter be reconsidered.

In Ostrovar v Moldova, 13 September 2005 the Court found a violation of article 8 when
the applicant had been denied contact with his family whilst in prison. The Court noted
that domestic provisions that allowed such restrictions failed to distinguish between
different categories of visitor and correspondent and offered little guidance on the use
official discretion and the means of challenging such decisions. The restrictions,
therefore, were not in accordance with law as required by article 8(2).

In Schemkamper v France, decision of the European Court 18 October 2005, it was held
that there had been no violation of article 8 when a prisoner had been denied the right
to visit his ailing father on one occasion. The Court found that the father had made
regular visits to the prisoner and that the prisoner had been allowed to visit his father
on home leave on three occasions. The restriction did not, therefore, disproportionately
interfere with the prisoner’s right to private and family life and his right to maintain
family contacts

In Argenti v Italy, European Court 10 November, 2005 it was held that there was no
violation of articles 8 or 3 of the Convention, when the applicant had been subjected to
a special prison regime for a prolonged period of time and which restricted his right to
family and other visits. The Court held that the regime was justified in the case of the
applicant (he had been convicted of very serious criminal offences and was associated
with the Mafia) and were not shown to have been applied unnecessarily in his case.
Further, the regime did not subject his to conditions that went beyond the inevitable
element of humiliation associated with imprisonment and the necessary regime applied in
this context. However, the Court did find a violation of the applicants’ right to
correspondence because the restrictions were not in accordance with law as required by
article 8(2) – see Natoli v Italy, below. ) See also Viola v Italy, 30 June 2006 where it
was held that the imposition of a special regime for the applicant, who had been
convicted of mafia related crimes, was proportionate and not in breach of articles 3 and
8. There had, however, been a violation of article 8 when his correspondence had been
monitored by legislation which was not in accordance with law).




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In Dickson v Premier Prison Service, 30 September 2004, it was held that it was not
irrational or unlawful to refuse a prisoner’s request to allow him to artificially inseminate
his wife, even though on his release his wife would be 51 years of age and unlikely to be
able to conceive. The court held that the likelihood of procreation on his release was
only the starting point for the secretary of state to consider. He was entitled to take
into account the fact that his wife was claiming benefits, the welfare of the child, the
implications of creating single parent families and public concern about deterrence and
punishment. (R (Mellor) v Home Secretary (2001) applied. See Codd, Regulating
reproduction: prisoners' families, artificial insemination and human
Rights’ [2006] EHRLR 39. In Dickson v United Kingdom, 18 April 2006 the European
Court held that there had been no violation of articles 8 and 12 with respect to the
above policy and decision. The policy rightly took into account matters which reflected
public concern and the secretary’s application of those factors to the particular case
was both legitimate and proportionate. On appeal to the Grand Chamber it was held that
there had been a breach of article 8 as the policy and its review did not strike the
correct balance between the conflicting interests. The policy interfered very seriously
with the applicants’ private and family life and started from the premise that the
facility would not be available unless there were exceptional circumstances, thus setting
the threshold too high; decision of the Grand Chamber, 4 December 2007.

In R (Shaheen) v Home Secretary, 1 May 2005 it was held that the Home
Secretary had been entitled to refuse the prisoner’s request that he serve the
remainder of this sentence for drug importation in his home country of the
Netherlands. He was entitled to take into account the risk that the prisoner would
return to the UK for illegal purposes after he had served a reduced sentence
abroad. Any interference with his family life was part of the inevitable curtailment
of family contact rights because of imprisonment and the secretary’s different
treatment of the prisoner was soundly based.

In R (DB) v Secretary of State for the Home Department, March 20 2006 the High
Court held that the decision to detain a former prisoner who was a male to female
transsexual in an all male high security psychiatric hospital was proportionate and not in
violation of her Convention rights.

In Dmitijevs v Latvia, 30 November 2006, the Court held that there had been a violation
of article 9 of the Convention when the prisoner had been refused permission to attend
a religious ceremony whilst in prison. Domestic law provided no rules for the refusal or
acceptance of such requests and the interference was thus not in accordance with law.

Prisoners’ correspondence and freedom of speech

In Cotlet v Rumania, judgement of the European Court 3 June 2003, it was held that
there had been a violation of article 8 when the applicant’s correspondence had been
opened and some of his letters to the European Commission had been delayed. Further,
in Poltoratskiy and others v Ukraine, decision of the European Court 29 April 2003, the
European Court found violations of article 8 with respect to interferences with
correspondence that were made under regulations that had not been made public or
accessible to the prisoners and their families. Similarly, there had been interferences
with their right to see a priest and take part in religious services that were justified by
prison instructions that could not be regarded as law within article 9(2). See also


                                            119
Matwiejczuk v Poland, decision of the European Court 2 December 2003, where
interferences with the prisoner’s correspondence, including opening and reading a letter
in the prisoner’s absence, was in violation of article 8 because the domestic law gave
insufficient indication of the scope of the authorities’ discretion to interfere with such
correspondence. See also Kweik v Poland, 30 May 2006, which followed Matwiejczuk but
also held that the opening and reading of the applicants’ correspondence from his sister
in law was both prescribed by law and necessary and proportionate having regard to the
seriousness of his offence (5 years for armed robbery)

See also Natoli v Italy (2003) 37 EHRR 49 – Minister’s monitoring of the prisoner’s
correspondence not in accordance with law, followed in Madonia v Italy, decision of 6
July 2004.

In AB v Netherlands (2003) 37 EHRR 48, the European Court held that there had been
a violation of article 8 when his correspondence with his legal adviser and the
Commission had been interfered with. In the Court’s view there was no justification for
interference with his correspondence with the Commission and the fact that his adviser
was an ex prisoner and not a formal lawyer did not justify a lack of protection of his
legal correspondence – there was no requirement in Dutch law that the adviser had to be
a lawyer and thus the interference was not in accordance with law.

However, the Court found that interferences in respect of the period after such
regulations were published were justifiable and thus fell within article 8(2). Also, in
Erdem v Germany (2002) 35 EHRR 15, the European Court held that the regulation of a
terrorist prisoner’s correspondence was not in violation of article 8. In view of the
threat presented by terrorism and the necessity of the state to monitor
correspondence in evaluating that threat, the interference was not disproportionate to
the legitimate aims pursued.

In Muscemi v Italy (Application No33695/96) it was held that restrictions on the
privacy of the prisoners’ correspondence were not in accordance with law as the law did
not regulate the length of the measures or the grounds justifying them, thus failing to
indicate clearly the scope of the authorities’ powers in this respect.

In Wisse v France, Application No 71611/01 it was held that there had been a violation
of article 8 when 2 prisoner’s conversation with visitors were recorded. Such
interference for reasons other than prison security would violate article 8 and in this
case the interference was not properly prescribed by law.

In Ciapas v Lithuania 16 November 2006, it was held that there had been a violation of
article 8 when a prisoner’s correspondence had been interfered with. The applicant’s
entire correspondence had been monitored because of fear that he might correspond
with convicted or dangerous criminals so as to intimidate witnesses and victims in a
forthcoming trial. The Court held that the measures were excessive and had not been
specifically justified. Neither was the original legal order allowing censorship been
sufficiently specific or subject to review.

See also Dmitrejevs v Latvia, 30 November 2006, where the European Court held that
there had been a violation of article 8 when a prisoner had been prohibited from
corresponding with his mother. The Court held that domestic law allowing the prisoner


                                           120
to correspond subject to permission from the responsible authority provided too much
discretion and was not thus in accordance with law.

See also Maksym v Poland, 19 December 2006, and Campisi v Italy, 11 July 2006

In Puzianas v Lituania, 9 January 2007 the European Court held that there had been no
violation of articles 8, 10 and 11 when a prisoner had been sanctioned (the prohibiting
him from receiving a parcel during a visit) for signing a petition sent to state officials
and the media complaining of prison conditions. The Court held that the sanction was
minimal, and that his fear of censorship was not sufficient to justify him from
circumventing reasonable rules on making and channelling complaints.

In R (Taylor) v Governor of HM Prison Risley the High Court held that the need to
control a drugs problem within the prison justified a policy whereby prisoners were only
entitled to have up to 20 numbers to call and that such numbers had to be authorised by
the prison governor. Such interference with the prisoners' family and private life was
justified by reference to the need to control drugs in prison, although it was stressed
that a blanket policy would not be allowed in every prison.

The government is proposing to allow prisoners access to email and the internet to
promote contact with families and to assist in education and finding employment ( The
Times, January 2 2007).

In R (Szuluk) v HM Prison Full Sutton and another [2004] EWCA Civ 1426 the Court of
Appeal held that monitoring by a prison medical officer of the prisoners' medical
correspondence with an outside practitioner was not a disproportionate interference
with that prisoner's article 8 rights. Such interference was necessary to ensure that
the letter was indeed medical correspondence and the High Court was wrong to hold
that an exception should have been made in the prisoner's individual circumstances (he
was suffering from a life-threatening illness and wished to ensure that his treatment
within the prison was adequate).

 In Potter v Scottish Ministers, March 20 2007 the Outer House held that there had
been a violation of article 8 when the prison authorities arranged for all calls from
prisoners to be preceded by a message that the caller was from prison. On appeal
([2007] CSIH67, 21 August 2007) the Court of Session held that the trial judge had
erred in finding that the rule was not prescribed by law as being within the Prison Rules
without first considering arguments on its necessity and proportionality

In Morton v Governor of HMP Long Lartin [2003] EWCA 644 Civ, it was held that the
refusal to allow the prisoner access to pornographic magazines was not in violation of his
right to freedom of expression. In refusing permission to apply for judicial review, the
Court of Appeal held that the governor had acted lawfully and reasonably and that the
claimant had no reasonable prospect of success at trial. The Court stressed that each
prison had the power to execute its own policy in accordance with the requirements of
good order and discipline.

A wide margin of discretion was afforded to the Prison Service in the case of R (Nilsen)
v Secretary of state for the Home Department, The Times, 2 January 2004. In this
case it was held that the refusal of the governor to return the prisoner's manuscript of


                                             121
his autobiography to the prisoner was justified on grounds, inter alia, of protecting the
rights of others. The prisoner had been sentenced to several terms life imprisonment
for multiple murders of young men and had written an account of his life and the crimes
intended for publication. It was held that the power of the governor to restrict
publications was not confined to protecting good order and discipline within the prison.
The regulation under Standing Order 5B, which forbids correspondence intended for
publication for gain, was not, therefore, ultra vires the Prison Act 1952 or the Prison
Rules. No special status was to be given to prisoners' biographies and the governor's use
of the Standing Order was both proportionate and rational in the circumstances. The
decision was upheld appeal to the Court of Appeal [2004] EWCA Civ 1540, where it was
held that the restriction was compatible with the European Convention as falling within
article 10(2) of the Convention. The Home Secretary’s powers under the Prison Act 1952
were not confined to inside the prison and could reflect the expectations of right
thinking members of a democratic society. Such restrictions were, therefore part of
the necessary incidents of imprisonment and in this case were proportionate and
compatible with the Convention and its case law.

The Home Secretary has announced measures to prohibit convicted prisoners from
selling their memoirs for profit; The Times, October 28 2006, page 27.

On 30 March 2004 the European Court gave judgment in the Hirst v UK (No2), finding a
violation of Article 3 of the First Protocol. In the Court’s view the blanket ban applied
to convicted prisoners was disproportionate. In particular the Court noted that the UK
legislature had never sought to weigh the competing interests or to assess the
proportionality of the ban as it affected convicted prisoners. The government had
therefore exceeded its margin of appreciation in this case. The Court did not find it
necessary to rule on articles 10 and 14. This effectively overrules the decision of the
High Court in Hirst v Attorney-General (dealt with in the main text), which held that the
prohibition was compatible with the case law of the European Convention. The decision
was confirmed by the Grand Chamber of the European Court of Human Rights: The
Times, October 10 2005. The Grand Chamber held that the right to vote was not a
privilege and could only be taken away on legitimate grounds. It agreed with the
European Court that the blanket ban operated in the UK was disproportionate and thus
in violation of Article 3 of the First Protocol. It left the United Kingdom government to
decide on the choice of means for securing the rights guaranteed by article 3. The Lord
Chancellor has announced a consultation process on giving prisoners the right to vote,
see The Times, February 3 2006, page 38. The Irish government has responded to the
ruling in Hirst by announcing that all prisoners will be given the right to vote by postal
ballot. On December 14, 2006 a consultation document was published by the Department
of Constitutional Affairs, setting out the principles of prisoner enfranchisement and the
options available to the UK following the judgment of the Grand Chamber in Hirst. The
document is available at http://www.dca.gov.uk/consult/voting-rights/cp2906.pdf

In Smith v Scott, The Times, February 5 2007, it was held by the Scottish Registration
Appeal Court that there had been a violation of article 3 of the first protocol where
there had been repeated refusals to accede to requests to register prisoners. In the
court’s view it was not possible to read the offending legislation down so as to be
compatible with the Convention. However, it was appropriate to make a declaration
where more than one year had passed sincethe Grand Chamber’s judgment in Hirst and
the government had still not introduced amending legislation.


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In Yakov v Bulgaria, decision of the European Court, 9 December 2003, the European
Court considered whether a sanction of seven days solitary confinement as punishment
for writing defamatory comments about the state and the judiciary was in violation of
article 3 and a necessary restriction in accordance with article 10(2) of the Convention.
The Court held that there had been a violation of article 10: by punishing the applicant
for having included moderately offensive remarks (the prison wardens were referred to
as ‘‘well-fed idlers’’) in a private manuscript critical of the justice system, which had not
been circulated among other detainees, the prison authorities had not struck a fair
balance between freedom of expression and the protection of the authority and
reputation of state officials and had accordingly exceeded their margin of appreciation.

In R (A) v Secretary of State for the Home Department [2003] EWHC 2846 (Admin), it
was held that article 10 of the European Convention was not broken by requirements for
the monitoring of journalists’ interviews with asylum seekers detained under s.21 of the
Anti-Terrorism, Crime and Security Act 2001. According to the High Court the
requirements that the conversations be tape-recorded and conducted within earshot of
prison officials were not disproportionate having regard to the threat to prison order
and discipline and the additional dimension of national security. The Court distinguished
both the House of Lords decision in O’Brien and Simms, and the High Court decision in
Hirst.

Prisoners’ actions in tort

In Sheppard v Home Office [2002] EWCA Civ 1921 the Court of Appeal held that the
requirement under Convention law for states to account for injuries sustained by an
individual in state custody did not change the rules in the burden of proof in assault
cases brought by a prisoner against the prison authorities. In this case the trial judge
was entitled to believe the prison service's account of the facts, even though that led to
the unlikely conclusion that the prisoner's injuries were self-inflicted. Note, however,
the decision in Kmetty v Hungary, 16 December 2003, where although it was held that
there was no evidence either way to establish that a prisoner had been ill-treated by
public officials, there was nonetheless a violation of the procedural obligation under
article 3 because the authorities had failed to conduct an effective investigation into
the applicant’s allegation.

Home Office figures showed that there had been a rise of 600 per cent in violent
incidents in prisons from 1996-2005: The Independent, February 5 2007.

In Rowe and others v Fryers and others [2003] EWHC Civ 655, the Court of Appeal held
that where prisoners were pursuing tort proceedings against prison officers, disclosure
of statements made by prison officers to the police would be ordered because the public
interest in ensuring a fair trial outweighed the public interest of maintaining the
confidentiality of those who made the statements to the police. This was a police
investigation into violence in a prison and a civil action based essentially on the matters
the police were investigating. See also Frankson and others v Secretary of State for the
Home Department, The Times, May 12, 2003, where the Court of Appeal stressed the
need to impose stringent conditions on the manner and extent of the disclosure.




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In Duddin v Home Office, decision of the Court of Appeal 4 February 2004, a prisoner's
claim for negligence was rejected when he had claimed that a prison officer's
unwarranted sexual advances towards his partner had caused him psychiatric harm. The
prisoner had failed to show that he had a direct perception of the incident - namely the
content of the conversation between the officer and his wife - and that he had had a
violent and sudden shock from the perception. The judge at first instance had been
correct in deciding that the prisoner had a remedy in public law for complaints and
disciplinary procedures and that it was not right to apply duty of care principles to
those procedures.

In Smiley v Home Office [2004] EWHC 240, the High Court struck out an action in
negligence brought by a prisoner who had attempted to commit suicide whilst in a young
offender institution. The court followed the Court of Appeal decision in Orange v Chief
Constable of West Yorkshire and was satisfied that the claimant was not a suicide risk
so as to engage the prison authorities’ duty of care; the case therefore had no
reasonable prospect of success and could be dealt with at this preliminary stage.

In Watkins v Home Office [2004] EWCA Civ 966 the Court of Appeal held that a wilful
breach of a prisoner's constitutional right of correspondence with his lawyer by a prison
officer was actionable per se in the tort of misfeasance in a public office. In the
Court's view there was no doubt that the prisoner's right of access to the courts and to
legal advice was a constitutional right and in such a case the prisoner did not have to
prove actionable loss as result of that breach. However, the Court granted the prisoner
nominal damages of £5 against each of the officers, refusing to disturb the trial
judge's refusal to award exemplary damages, instead referring the question of
exemplary damages back to the trial judge. The decision of the Court of Appeal was
overruled in the House of Lords – [2006] UKHL 17. Their Lordships held that the tort of
misfeasance in a public office was not actionable in the absence of proof of material
damage and that the Court of Appeal's decision had unjustifiably extended the principle
was actionable per se in a case where a person's constitutional rights had been violated.
The prisoner's right if any was under s.7 of the Human Rights Act 1998.

See also Francis v Home Office, 31 July 2006 – no material damage caused by
interception of correspondence

In Woodin v Home Office, 31 July 2006 it was held that there had been no misfeasance
when the prisoner’s legal correspondence had been inadvertently opened by the prison
authorities. There was no evidence of vindictiveness or malice on behalf of the
authorities and no material damage had been shown. Neither was the prisoner a victim
under s.8 of the HRA as there had been no deliberate flouting of the rules, the
authorities had apologised, the delays were not substantial and no damage had been
caused.

In Karagozlu V Commissioner of Police of the Metropolis [2007] 2 All ER 1055 it was
held that loss of liberty was a special form of damage sufficient to support a claim for
misfeasance and that loss of residual liberty or further restrictions on a prisoner’s
liberty was also actionable.

In Butchart v Home Office [2006] EWCA Civ 239 the Court of Appeal held that a
prisoner had a cause of action when, while a remand prisoner, he had witnessed his


                                           124
cellmate committing suicide. The Court of Appeal held that where the authorities owed a
vulnerable prisoner a duty of care (B was susceptible to psychiatric harm) and was a
suicide risk himself) then that duty also included a duty to take reasonable steps to
minimise the risk of psychiatric harm. On the facts there was an arguable case that the
authorities had failed in that duty and the claimant was not bound by the nervous shock
cases which limited liability to those who had close ties with the person who committed
suicide.

In Davies v Secretary of State for Justice [2008] EWHC 397 it was held that the
movement of a prisoner from open to closed conditions did not give rise to an action
for damages for false imprisonment (Hague confirmed). Neither did it give rise to
an action in negligence as the prison regulations did not give rise to a cause of
action for the negligent performance of relevant statutory duties (Hague). Further
article 5 was not engaged by a change of prison conditions as article 5 was not
concerned with the location and conditions of imprisonment.

Prisoners' property

In Duggan v Governor of Full Sutton Prison, The Times, 25 March 2003, it was held that
the prison did not hold the prisoner's cash on trust so as to give rise to an obligation for
the prison authorities to bank that money in an interest bearing account. Neither was
the failure to do so a violation of the prisoner's right under article 1 of the First
Protocol to the Convention. This decision was upheld by the Court of Appeal: The Times,
13 February 2004, where it was held that on the proper construction of the Prison Rules
(Rule 43), the position of the Prison Service and the prisoner was more of one of debtor
and creditor, rather than trustee and beneficiary.

Chapter 11 - The right to private life

A common law right to privacy?

In Secretary of State for the Home Department v Wainwright and others, The Times,
October 20 2003, the House of Lords confirmed that there was no common law tort of
invasion of privacy and that the development of the common law of confidentiality by
the Court of Appeal in Douglas v Hello! to include such a right was confined to that legal
area and was not authority for the general creation of privacy rights. Although the gap
in the common law had been filled by the passing of the Human Rights Act 1998, it was
not necessary to develop a law of privacy to apply to actions which occurred before the
passing of the Act. (The case is noted by Maya Lester in [2004] EHRLR 193)

In Wainwright v United Kingdom, 26 September 2006, the European Court of Human
Rights held that there had been a violation of articles 8 and 13 of the Convention in
respect of the strip searches of individuals visiting a relative in prison. The European
Court found a violation of article 8 because although the searches pursued a legitimate
aim (prevention of crime) the relevant procedures had not been followed and thus the
level of interference with personal dignity and privacy was not necessary in a democratic
society. However, the Court found that the applicants’ treatment did not cross the
threshold necessary for a breach of article 3: there had been no verbal abuse from the
officers and the applicants had not, with one exception for which the individual had
received damages, been touched. The Court also found a violation of article 13 in that



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although they had taken legal proceedings in domestic law, the courts did not accept
that they had the right to privacy and thus they did not have the means of obtaining
redress for violation of their article 8 rights.

Physical and personal integrity and privacy

The principle that a mental health patient who had refused medical treatment should
only be treated if medical necessity was convincingly shown was re-iterated by the Court
of Appeal in R (N) v Dr M and other, The Times, December 12 2002. The Court of Appeal
held that the standard of proof was not criminal, but that the court must be satisfied
convincingly that the treatment was in the patient's best interests. The Court of Appeal
took into account the decision in R (Wilkinson) v Broadmoor Special Hospital Authority,
considered in chapters 10 and 11 of the text. However, in Simms and Simms and another
[2003] 1 All ER 669, it was held that it was lawful to carry out experimental treatment
on helpless and mentally incapacitated individuals with parental consent. In the court’s
view a patient not able to consent to pioneering treatment should not be deprived of
that choice where he would have been likely to consent had he been competent. In R (B)
v Ashworth Hospital, The Times, April 24 2003, the Court of Appeal held that the
compulsory treatment for personality disorder of a person who had been the subject of
a hospital order for a specified mental illness was unauthorised by the Mental Health
Act 1983 and thus unlawful.

In R(B) v Home Secretary and others [2005] EWHC 1936 (Admin) it was held that the
test of strict medical necessity to justify compulsory medical treatment, established in
Herczegfalvy v Austria (1993), did not apply unless the medical treatment reached the
appropriate degree of severity to engage article 3 – in other words that it would result
in intense physical or mental suffering. In the present case there was no evidence that
the patient would duffer such a detriment. Further, the above test did not apply to
breaches of article 8, where the court would simply have to establish that the
interference was prescribed by law and necessary to achieve a legitimate aim. The
appeal to the Court of Appeal was dismissed: The Times, February 2 2005. The Court of
Appeal held that the compulsory treatment with anti-psychotic medication of a
convicted rapist did not infringe his human rights where the treatment was convincingly
shown to be a medical necessity, and that it was not necessary also to show that the
treatment was required to prevent the patient causing harm to himself or to others.

In Munjaz v Mersey Care NHS Trust: S v Airedale NHS Trust, The Times, 25 July
2003, the Court of Appeal held that in secluding mental health patients to protect
others from immediate risk of significant harm, health authorities had to normally
follow the relevant Code of Practice made under s.118 of the Mental Health Act 1983.
Although the practice of seclusion was lawful as amounting to medical treatment, any
departure from the Code of Practice had to be for good reason in relation to an
individual patient or group of patients. Hospitals could not depart from the code as a
matter of policy or on arbitrary grounds. In particular, using seclusion because the
hospital could not think of an alternative was unlawful. The Court of Appeal held that
failure to follow the code would result in liability in tort and possible violations of
articles 3 and 8 of the European Convention. However, it would not engage article 5, as
that article was not concerned with the conditions of detention.




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The decision in Munjaz was overturned by the House of Lords: The Times, 18 October
2005. The House of Lords held that the authorities could depart from the Code if it had
cogent reasons for doing so and that on the facts there existed such reasons. There
were sufficient safeguards and reviews to ensure that there was no violation of article 3
and any violation of article 8 was necessary for the purpose of preventing crime and
disorder and protecting the rights of others.

(In September 2003 the High Court granted permission to Ian Brady to claim before a
Mental Health Tribunal that he was sane enough to have the right to die via self-
starvation, see The Times, September 18 2003, page13.

In R v Chief Constable of South Yorkshire, ex parte LS and Marper [2004] UKHL 39,
the House of Lords held that the retention and use of DNA samples and fingerprint
evidence under the Police and Criminal Evidence Act 1984 after a suspect had been
cleared of an offence, was not contrary to articles 8 and 14 of the European Convention.
According to the majority, article 8 was not engaged, as there had been no significant
violation of the right to private life contained in article 8. Baroness Hale dissented on
that point, but agreed that any violation was justified within the terms of article 8(2).
The applicant’s complaint before the European Court has been declared admissible ; S v
UK (Application No 30562/04)

Contrast Jones v Chief Constable of West Midlands, March 23 2006 where it was held
that a teacher who had been charged but not prosecuted for striking a child was
entitled to demand that her fingerprints, DNA and photograph taken by the police
should be destroyed. She was awarded £250 for false imprisonment and assault.


In R (Burke) v GMC and others, [2004] EWHC 1879 it was held that if a patient was
competent, or although incompetent had made an advance directive which was valid and
relevant to the treatment in question, his decision to require the provision of artificial
nutrition and hydration in his dying days was determinative of the issue. Once a patient
was admitted into a NHS hospital, a duty of care arose to provide and continue to
provide treatment that was in the best interests of the patient. The doctor and the
hospital were under a continuing obligation that could not lawfully be discontinued
unless arrangements were made for the responsibility to be taken over by someone else
and medical opinion could never be determinative of what was in a patient's best
interests. If the patient was incompetent and had left no binding and effective advance
directive then in the final analysis it was for the court to decide what was in his best
interests. On appeal ([2005] EWCA Civ 1003) the Court of Appeal held that there was
nothing unlawful about the GMC’s guidance on this issue, confirming that where a
competent patient had indicated a desire to be kept alive by artificial nutrition then a
doctor who ignored that advice would be in breach of article 2 and guilty of murder. In
Burke v United Kingdom, 11 July 2006 the European Court dismissed the applicant’s
claims under articles 2, 3, 8 and 14 of the Convention as inadmissible. In the Court’s
view the domestic law and its operation did not pose a significant risk that his
Convention rights would be jeopardized. (Noted by Burns in New Law Journal, 27
October 2006, 1632)

In A Local Authority v Z and another [2004] EWHC 2817 (Fam) it was held that
although a local authority had a duty to investigate the position of a disabled person
who wished to arrange for her to travel to Switzerland to arrange assisted suicide for


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her, in this case the person was legally competent and the authority had no duty to seek
an injunction to stop her from leaving the country. Although article 2 of the Convention
was engaged, in the present case that issue was overridden by principles of self-
determination. The police could avail themselves of the criminal law if they felt that her
husband was committing an offence under s.2 of the Suicide Act 1961, but the
injunction sought by the authority was not necessary in this case

Note, the Assisted Dying for the Terminally Ill Bill was rejected: Burns, Te Quality of
Mercy (2007) NLJ 86.


Protection form Harrassment

In KD V Chief Constable of Hampshire [2005] EWHC 2550 QB it was held that a police
officer who had abused his position in conducting an investigation into the claimant’s
daughter’s allegations of sexual abuse by asking her intimate questions about her sexual
life, had subjected the claimant to harassment under the 1997 Act. In the post-Human
Rights Act era the statute had to be read in line with article 8 and the claimants’ right
to private life. The claimant was awarded £20,000 for the distress caused by the
questioning, physical assaults (which formed part of the harassment) and the persistent
denial of the charged by the defendant.

See also Howlett v Holding, discussed under Harassment in Freedom of Assembly,
above

The Right to family and home life

See Hatton v United Kingdom, discussed under European Convention on Human Rights,
above.

In Dennis v Ministry of Defence, The Times, May 6 2003, the High Court held that
there had been an actionable nuisance when the claimants were subjected to highly
intrusive noise caused by fly harrier jets. Relying on article 8 of the Convention, the
court held that in this case the noise was not justified on grounds of public interest.

The Court of Appeal decision in Marcic v Thames Water Utilities [2002] QB 929, that a
water company were liable both under common law and under s.6 of the Human Rights
Act 1998 for discharging sewage on to the claimant’s land has been overturned by the
House of Lords [2003] UKHL 66. The House of Lords held that the claimant’s had no
common law action as such action had been displaced by the statutory scheme provided
by the Water Industry Act 1991. Such a scheme was also compliant with the European
Convention as it struck a fair balance between the claimant’s article 8 rights and the
interests of the public and of other customers.

See also Dobson v Thames Water Utilities [2007] EWHC 2021 – damages for a nuisance
which also amounts to a breach of article 8 might not give just satisfaction in every case
and the court might grant compensation under s.8 of the HRA for any inconvenience,
mental distress and physical suffering.

In Connors v United Kingdom, decision of the European Court 27 May 2004, it was held
that the eviction of a family of gypsies from council-owned land was in violation of


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article 8 of the European Convention. See European convention on human rights, above,
for full details.

In R (Bishop) v Bromley LBC [2006] EWHC 2148 (Admin) it was held that a decision to
transfer a local authority’s day-care services to another centre was not sufficiently
serious to engage article 8, and even if that were the case the decision was justified on
grounds of the economic well-being of the country.

In Nicholls v Lan and others [2006] EWHC 1255 (Ch) it was held that the sale of a
bankrupt’s house, owned jointly by the bankrupt and the appellant (his wife) did not
constitute a violation of the right to private and home life under article 8. The judge
had been entitled to order the sale under the Insolvency Act 1996 and had achieved a
correct balance between their rights under article 8 and the creditor’s’ rights

In Re Vaccination: A v B: D v E, Family Court 13 June 2003, it was held that immunisation
against childhood diseases was in the best interests of the child despite the mother’s
objections. The case was brought be the fathers of two children who wished the
children to be immunised against the mothers’ wishes. The objections of the mothers
were outweighed by the potential benefit of the whole course of immunisation and
article 8(2) allowed the court to interfere with those wishes where to do so would
protect the child. The decision was upheld in the Court of Appeal on 30 July 2003, The
Times, 15 August 2003.

In Evans v Amicus Healthcare Ltd and others, The Times, 2 October 2003, the Family
Division rejected a claim that two women should be allowed to be treated with embryos
created between themselves and their former partners, despite the lack of consent
from such partners. In the court’s view, the consent of both parties was essential and
such consent lapsed once the couple were no longer together. Wall J rejected the
contention that this ruling was incompatible with the women’s family rights and the right
of life of the unborn child. Any interference was necessary for achieving the purpose of
the legislation – the regulation of IVF treatment – and constituted no violation of article
2, as the foetus was not recognised as a person under that article. The decision was
upheld by the Court of Appeal ([2004] EWCA Civ 727), where it was held that the clear
policy of the Human Fertilisation and Embryology Act 1990 was to ensure continuing
consent from both partners. Further, any interference with the rights under articles 8
and 14 of the Convention were proportionate and objectively justifiable.

See now Evans v United Kingdom, The Times, 17 March 2006, where the European Court
found no violation of article 8. The case has now been heard by the Grand Chamber of
the European Court of Human Rights: The Times, May 2 2007, where it was held that
the rules were within the state’s margin of appreciation.

In Glass v UK (2004) 39 EHRR 15 the European Court found a violation of article 8 when
medical staff ignored the wishes of the parents and administered drugs to their
seriously ill child. The Court held that the onus was on the authority to apply for the
domestic court’s permission to administer the treatment once it was clear that the
parents were opposed to the treatment.

See also Jaggi v Switzerland, 13 July 2006, where the European Court held that there
had been a violation of article 8 when the applicant had been refused permission to have


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a DNA test carried out on a dead person with a view of discovering whether that person
was his biological father.

In Lawrence v Pembrokshire CC [2007] EWCA Civ 446 the Court of Appeal held that the
rule which stated that a duty of care was not owed by investigating professionals to
parents suspected of child abuse was not affected by the incorporation of article 8 into
domestic law

Patient Confidentiality

In R (Axon) v Secretary of State for Health, The Times 26 January 2006 it was held
that the parental rights under article 8 of the European Convention had not been
violated when an under-16 patient's confidentiality was preserved when seeking advice
on contraception. Since the relevant guidance provided that advice would only be given
when the young person understood the implications of such advice, there was no
interference with family life under article 8. In any case the interference was in
accordance with the law and was there to protect health and the rights of others.
Further it was proportionate because there was evidence to show that failure to provide
confidentiality discouraged young people from seeking advice. See also Loughery, ‘The
Confidentiality of Medical Records: Information, Autonomy, Patient Privacy and the Law’
[2006] NILQ 293

In Wakefield v Channel Four [2006] EWHC 3298 it was held that assurances of
confidentiality given by broadcasters to the GMC with respect to confidential medical
records were not absolute. The court would need to conduct a balancing exercise
between confidentiality and other public interests. Here the broadcasters were allowed
to use the information for a different purpose than the one for which they received the
information – in this case defending defamation proceedings.

Data Protection

See Durant v Financial Services Authority, The Times, December 8 2003, where it was
held that not all information relating to an individual held in a data register was ‘personal
data’ so as to require the registered data controller to disclose it to the individual.

See also Johnson v Medical Defence Union, The Times April 10 2007

In R (Home Secretary) v Information Tribunal [2006] EWHC 2958 (Admin) the High
Court held that the Information Commissioner had the right under s.51 of the Data
Protection Act 1998 to verify whether an exemption form disclosure, sought on the
grounds of national security under s.28 had been properly made by the Secretary of
State.

Privacy and Confidentiality

In R (Robertson) v The Secretary of State and others, The Times, 11 August 2003, the
High Court held that the provision for the sale of the full electoral register to credit
agencies under regulation 114 of the Representation of the People (England and Wales)
Regulations 2001, did not breach the applicant's right to vote under Article 3 of the
First Protocol of the European Convention. In the court's view, the regulation only


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interfered with the applicant's convention rights to a very limited extent and did not
exceed the state's margin of appreciation in balancing the right to vote with the
facilitation of credit and the control of fraud. The regulations were passed as a
consequence of the decision in R (Robertson) v Wakefield MDC [2002] QB 1052 and the
court in the present case held that the first Robertson decision only prohibited the sale
of the registry to commercial concerns for direct marketing purposes. See also R (Lord)
v Secretary of State for the Home Department, under prisoners' rights, above, on the
failure to disclose confidential reports.

In R (X) v Chief Constable of the West Midlands Police [2004] 2 All ER 1 the High Court
held that the chief constable of the police had to have regard both to the principles of
natural justice and article 8 of the European Convention on Human Rights in deciding
whether there was a pressing social need to disclose details of allegations of sexual
abuse to potential employers under s.115(7) of the Police Act 1997. In this case the
police had provided information about two incidents of alleged sexual abuse by the
applicant to a social work agency to whom the applicant had applied for employment. It
was held that the applicant should have been given the right to stress that one
allegation had proved to be incorrect and was attributable to another person. In
addition, the court found that the police had broken the rules of natural justice by not
contacting the applicant and allowing him to make representations before disclosing such
information to any third party. The decision was overturned on appeal, EWCA Civ 1068,
where the Court of Appeal held that the constable was under a duty to disclose
information to a prospective employer in an Enhanced Criminal Record Certificate if the
information might be relevant unless there was a good reason for not making a
disclosure. In the instant case there was no presumption against disclosure, and the
constable was under a duty to disclose if the information might be relevant unless there
was a good reason for not making a disclosure. In the Court's view, it imposed too heavy
an obligation on Chief Constable to require him to give an opportunity to a person to
make representations to him prior to performing his statutory duty of making
disclosure. X had had ample opportunity to set out his account during his police
interview. He was further able to explain his position to his potential employers or to
correct the certificate under the Act. Whilst recognising how damaging the disclosure
could be to X, because of the public interest in the information being made available to a
prospective employer, the Chief Constable was entitled to be of the opinion that the
information might be relevant so that it had to be disclosed. The making available of
that information in accordance with the law could not be contrary to Art.8(2) of the
Convention.

See also R (Kent Pharmaceuticals Ltd) v Serious Fraud Office and the Health Secretary
[2004] EWCA Civ 1494, where it was held that the decision of the SFA to disclose to
the Department of Health documents seized from the applicant in relation to a fraud
investigation was justified under article 8(2) of the Convention. In the Court’s view, the
disclosure was necessary in order to allow the Department to investigate and prosecute
further cases. Although notice to the person concerned would normally be a pre-
requisite, the lack of notice in this case could be excused as no harm had been done to
the applicants; they had been given full information at a later date.

In O'Riordan v DPP, May 19 2005, it was held that the offence under s. 1 and 5 of the
Sexual Offences (Amendment) Act 1992 of publishing information likely to divulge the
identity of a young victim of a sexual offence was not incompatible with article 10 of the


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European Convention. The strict liability offence was sufficiently certain to be
prescribed by law and was necessary and proportionate, despite the law being
subsequently amended to allow a defence of lack of knowledge and suspicion.

In Stone v Kent CC and others [2006] EWHC 1668 (Admin) it was held the public
interest required publication in full of a report following an independent inquiry into a
person who had been convicted of two murders and one attempted murder, and who had
cooperated with the report. Thus the publication did not disproportionately interfere
with that individual's article 8 rights. Although there was a great interest in protecting
the privacy of medical records, the strong public interest in the claimant's behaviour
and his treatment, together with his concession that some publication was necessary,
outweighed his claim under the law of privacy and under the Data Protection Act 1998.

In Re LM [2007] EWHC 1902 it was held that a restriction on the reporting of an
inquest into a child’s suspicious death should not be granted as there was insufficient
evidence of any lasting harm to the child’s siblings to override freedom of expression.
However it was necessary to place a restriction on the press identifying the siblings.



In X (Mary Bell) and another v News Group Newspapers and another [2003] EWHC QB
1101, Dame Butler-Sloss P granted a lifetime injunction prohibiting the identification of
the whereabouts of Mary Bell, who had been found guilty of murder of two young
children at the age of 11. Unlike the decision in Venables and Thompson v News Group
Newspapers, the judge did not recognise any threat to the claimant's, or her daughter's
life, but felt that the exceptional circumstances justified the protection of their right
to private and family life. An outstanding factor was the fragility of Mary Bell's mental
health. Although the scope of the injunction granted in Venables and Thompson was
extended in this case, it should be noted that the press did not object to the orders.
(The case is noted by Foster in (2003) 134 Criminal Lawyer 3)

In Carr v News Group Newspapers Ltd, decision of the High Court 24 February 2005, a
life long injunction was grated protecting the claimant, Maxine Carr, from revelations as
to her identity and whereabouts. The court was persuaded by actual threats against the
claimant's life. The restriction was legitimate and proportionate to the aim of
protecting the claimant and the newspapers could seek rectification of the order in the
future.

In Forbes v Home Secretary [2006] EWCA Civ 962, the Court of Appeal held that the
notification provisions under the Sexual Offences Act 2003, which had been applied to
F because he had been convicted of importing child pornography, were compatible with
article 8 even though that offence could be committed without any specific intention or
knowledge of the nature of the goods. It was within Parliament's margin to include such
offences in the scheme given the pressing need to protect children and deter such
crimes.

In Birmingham CC v S, R and A [2006] EWHC 3065 (Fam) it was held that there was
insufficient grounds to grant an order to the father of a child, prohibiting anyone from
disclosing the fact that he was the father. His claim that his mother would reject the
child and him was not substantiated on the evidence; indeed there was evidence that the
grandmother would assist in caring for the child.


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In T v BBC [2007] EWHC the High Court granted an injunction to prevent the
identification of a vulnerable mother and her child on a programme about adoption. Her
rights outweighed free speech and the programme did not need to identify her.

In Brent LBC v Lee [2007] EWHC 1250 it was held that a local authority was permitted
to disclose the fact that a woman’s child had been taken into care when that disclosure
was made to another local authority who were employing the mother at a care home. The
interference with the woman’s article 8 rights were clearly outweighed by the public
interest in disclosure and the duty of the local authority under the Care Standards Act
2000

Surveillance and Privacy

In Chalkley v United Kingdom, decision of the European Court 12 June 2003, the Court
found a violation of article 8 when the applicant’s telephone conversation had been taped
by a covert listening devise. At the relevant time there had been no statutory scheme
regulating such practices and thus the violation was not in accordance with law as
required under article 8(2). See also Hewitson v United Kingdom, The Times, 10 June
2003, where the Court found a violation of article 8 in similar circumstances, and Lewis v
United Kingdom, decision of the European Court 25 November 2003, where the Court
also found a violation of article 13 when evidence for a criminal trial had been gathered
via surveillance of the applicant’s home.

In Perry v United Kingdom, decision of the European Court 17 July 2003, where a film of
the applicant had been taken secretly when he was in a prison cell and then was used for
identity purposes. The Court noted the police had gone beyond the normal use of that
type of camera and the filming amounted to an interference with the applicant's right to
respect for his private life. The filming was not in accordance with law as the police had
failed to follow the procedures set out in the relevant code: they had not obtained his
consent or informed of his rights. Accordingly there had been a violation of article 8 and
the Court awarded the applicant 1,500 Euros for non-pecuniary loss, along with expenses.

See also Wood v United Kingdom (Application No 23414/02) where the European Court
found a violation of article 8 when the applicant’s conversation in a prison cell with other
detainees had been recorded and used in evidence in his criminal trial. The government
conceded that the taping had been done without legal authority and that the applicant
had no available remedy for that breach. Accordingly there was a violation of articles 8
and 13.

In Heglas v Czech Republic, 1 March 2007, the European Court found a violation of
article 8 when the applicant’s calls on his mobile phone had been monitored and a
conversation with his co-defendant’s girlfriend, where he admitted his guilt, had been
secretly recorded. Neither of the interferences was in accordance with law – the fist
interference was purported to justified by law that had not yet come into force and the
second case was not covered by regular law. However, applying cases such as Khan v UK,
the Court was not satisfied that his right to affair trial had been interfered with, the
domestic courts being satisfied that there was other corroborative evidence.




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In Peck v United Kingdom, The Times, February 3 2003, the European Court held that
there had been a violation of article 8 of the Convention when CCTV footage of the
applicant in a distressed condition had been released for use in various newspapers and
television programmes without sufficient safeguards to ensure his anonymity. The Court
also found a violation of article 13 because the applicant was left without an effective
domestic remedy for such violation. Further, in Martin v United Kingdom, 19 February
2004, it was alleged that the use by the local authority of hidden cameras to monitor
the applicant and her home following allegations of disorderly behaviour was in violation
of article 8 of the Convention. The European Court struck the case out following a
friendly settlement whereby the applicant received 4,000 Euros and expenses in
compensation. (The High Court is currently hearing an application brought by 3 youths,
who had their names and photographs published on the internet by the local council and
the police after anti-social behavioural orders were made against them.)

In R (Ellis) v Constable of Essex Police, The Times, June 17 2003, the Divisional Court
held that a proposed offender naming scheme, whereby the identities of burglars and
other offenders be identified in order to reduce crime, should be postponed in order
for the authorities to consider whether it would impose a disproportionate interference
on the offender's, and his family's private and family life. Whether the operation of the
scheme was lawful or not would depend upon the circumstances of the offenders
solicited for the scheme and how it operated in practice. However, in R (Stanley and
other) v Metropolitan Police Commissioner and another [2004] EWHC 2229 (Admin) it
was held that there had been no illegality or violation of article 8 of the Convention
when the police and the local authority had distributed leaflets containing photographs,
names and addresses and ages of a number of young people who had been issued with
Anti-social Behavioural Orders. In the court’s view, where the purpose of publicity was
to inform, reassure and assist in enforcing orders it would not be disproportionate to
provide such detail. The colourful language used in this case was necessary in order to
attract the attention of the readership. It was also proportionate to give this
information (via the internet) to people not in the relevant locality, as many people may
have been affected by such behaviour.

In Sciacca v Italy (Application No 50774/99) the European Court held that there had
been a violation of article 8 of the Convention when tax authorities had released the
applicant’s photograph to the press after she had been arrested and prosecuted for tax
fraud. The Court noted that the practice of taking and disclosing photographs was not in
accordance with any law, but was carried on via a developed practice.

In Jones v Warwick University [2003] 3 All ER 760, a court hearing a personal injury
claim admitted evidence obtained by an insurance company when they had trespassed on
her property in order to prove that her claims were exaggerated. Although the actions
violated the claimant’s privacy, the court held that such evidence was admissible. This
was followed by the Court of Session in Martin v McGuiness, The Times, April 23 2003,
where it was held that evidence gathered by a private investigator infringing the right
to private life under article 8 of the Convention was admissible in personal injury
litigation, provided the inquiries and surveillance was reasonable and proportionate in the
circumstances. In R v Hardy and others (October 9 2003) it was held that a violation by
the public authorities of the Dutch Criminal Code in the obtaining of evidence was
neither in violation of article 8 or, if it was, it had caused no unfairness to the claimant
(Khan v United Kingdom applied)


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In Copland v UK, 3 April 2007, it was held that there had been a violation of article 8
when employees’ emails and use of the internet had been secretly monitored. The
procedures were not in accordance with law and thus were unlawful under article 8.

In Antwell View School Governors v Dogherty, 15 September 2006 (EAT) it was held
that there was no violation of article 8 when a claimant in an unfair dismissal action had
secretly taped the disciplinary hearing held by the employers and sought to use such
evidence in the tribunal. The governors’ private and family lives were not compromised as
they had been acting in a public and quasi-judicial capacity. However the tribunal should
not have admitted recordings of the deliberations of the governors for that would
compromise open discussion and encourage satellite litigation.

See also Howlett v Holding, discussed under Harassment in Freedom of Assembly, above

In R v Rosenburg [2006] EWCA Crim 6 it was held that surveillance via a neighbour’s
camera of the defendant’s activities, although done with the knowledge of the police,
and was used in a criminal prosecution as evidence, was not police surveillance for the
purpose of RIPA 2000.

See also Barracks and Cole v Commissioner of the Police for the Metropolis [2006]
EWCA Civ 1041 on whether an employment tribunal should disclose the reasons why an
officer had failed a security check when applying for a post.

Sexual Privacy

In KA and AD v Belgium, decision of the European Court of Human Rights 17 February
2005, it was held that there had been no violation of article 8 when two individuals who
had taken part in filmed sadomasochistic acts had been convicted, fined, suspended
from public service and imprisoned for assault occasioning actual bodily harm. In the
Court's view the measures taken against the applicants were necessary and
proportionate, the Court having particular regard to the fact that the applicants had not
honoured a promise to stop the actions if the participants so requested, and to the
intensity and dangerousness of some of the acts. Compare and contrast Brown, Laskey
and Jaggard v United Kingdom and ADT v United Kingdom, dealt with in the main text.

In E v DPP, The Times, February 9 2005, it was held that the offence of having
unlawful sexual intercourse with a girl under s.6 of the Sexual Offences Act 1956
did not violate a 15 year old boys private life under article 8; either article 8 was
not engaged with respect to the right of a 15 year old to have sexual intercourse
or the interference was justified under article 8(2). Neither did it constitute
unlawful discrimination under article 14 as the possibility of unwanted pregnancies
justified the distinction between males and female with respect to committing the
offence.

Transsexuals

Following the decision of the European Court in Goodwin and I v United Kingdom, the
Lord Chancellor's Department announced its intention to introduce new legislation to
give formal recognition in the acquired gender, including the right to marry and to


                                           135
change their birth certificates. There will, however, be a duty to disclose that person's
previous gender in many circumstances. However, in Bellinger v Bellinger, The Times,
April 11 2003, the House of Lords refused to recognise the legality of a marriage
entered into between a person who was born male but who had undergone re-assignment
surgery and had purported to enter into a marriage with another male. In their
Lordship's view, although after the decision in Goodwin the legislation in question was
incompatible with articles 8. 12 and 14 of the Convention, it was not the role of the
courts to reinterpret clear legislation. Any fundamental change in the law must be made
by Parliament.

In Grant v United Kingdom, 23 May 2005 the European Court held that there had been a
violation of articles 8 and 14 when the applicant, a male to female transsexual, had been
denied a pension on her 60th birthday because biologically she was a male. The Court
held that although the UK had acted swiftly to pass the Gender Recognition Act 2004 to
address the decision in Goodwin v UK, the applicant still remained a victim and there was
no reason why she should not be regarded as a victim from the date of the judgment and
until that Act came into force.

In R and F v United Kingdom, 28 November 2006 the European Court declared
inadmissible a claim that the requirement for a transsexual to divorce before
registering for a gender recognition certificate under the 2004 Act was in violation of
her Convention rights. The Court held that the regulations were within the state’s
margin of appreciation and left the applicants with a genuine and real choice, either to
divorce and register, and to enter into a civil partnership under the Civil Partnership Act
2005

In Richards v Secretary of State for Work and Pensions, The Times, May 5 2006 the
European Court of Justice held that the applicant, a male to female transsexual, was
discriminated against by not receiving her pension at 60 because the law refused to
recognise her re-assignment. She will receive a backdated lump sum payment for loss of
her pension.

The Gender Recognition Act 2004 was given the Royal Assent on July 1, 2004. and
addresses the civil and legal status of transsexuals, giving them, inter alia, the right to
marry and to be treated as the sex they have adopted after a full medical sex change.
The Act came into force in April 2005.

On May 6, 2004 the House of Lords upheld the decision of the Court of Appeal in Chief
Constable of West Yorkshire v A, The Times, 7 May 2004, to the effect that a
transsexual had been discriminated against on the grounds of her gender reassignment
when she had been refused a job as a policewoman on the grounds that she could not
carry out searches. In their Lordship’s view, no one searched by a transsexual could
reasonably object to the search.

In Croft v Royal Mail Group plc, The Times, 24 July 2003, the Court of Appeal held that
there had been no direct sex discrimination on the grounds of gender reassignment when
an employee who was in the pre-operative stage of reassignment had been refused
permission to use the female toilets at work. In the Court's view, the measures taken by
the employer – to allow the person to use the disabled toilet rather than the female
toilets – were appropriate and did not amount to sex discrimination.


                                            136
In Van Kuck v Germany, judgement of the European Court 12 June 2003, it was held that
a domestic court’s refusal to order re-imbursement of top-up costs of a transsexual’s
gender re-assignment surgery was a violation of his right to private life under article 8
of the Convention. In the Court’s view, as gender identity was one of the most intimate
aspects of a person’s private life, it was disproportionate to require the applicant to
prove the medical necessity of the treatment.

In L v Lithuania, 11 September 2007 the European Court held that there had been
a violation of article 8 when the state had failed to provide appropriate legislation
to allow him to complete his gender reassignment surgery. Legislation had been
drafted but not passed or given effect to and that delay constituted a violation of
L’s Convention rights.

In Pay v Lancashire Probation Service, the Employment Appeal Tribunal held that an
employer was entitled to dismiss and employee in connection with his sado-masochistic
activities outside work; he had been involved in the merchandising of sado-masochistic
products and performed shows in fetish clubs. Although article 10 of the Convention was
engaged, the dismissal was a proportionate response to those activities, which the
Tribunal found were incompatible with his position as a probation officer and potentially
damaging to the probation service. The dismissal served a legitimate aim in that it
demonstrated to the public the integrity of its officers and protected its reputation,
particularly as the employee worked with sex offenders. It was also held that article 8
of the Convention was not engaged because his activities had been published on a
website and did not therefore impact on his private and family life.

Transsexuals have also received protection from a recent decision of the European
Court of Justice. In KB v National Health Service Pensions Agency and Another , The
Times, 15 January 2004, it was held that national law which made it impossible for a
transsexual to marry their partner and thus to become a spouse for the purpose of
entitlement to a survivor’s pension under an occupational pension scheme, was
discriminatory and thus constituted a breach of the EC principles of equal pay. Having
established that the relevant legislation was contrary to those principles, the European
Court of Justice then decided that the question of whether such a situation constituted
a violation of Article 141 EC in this particular case should be decided by the national
courts.

See Grant v United Kingdom (Application No 32570/03) on whether the refusal to pay a
state pension to a male to female transsexual as if she were a female was in violation of
articles 8, 14 and Art 1 of Protocol No 1. The general issues raised by the case were
declared admissible and referred to the Court for a hearing on the merits – the decision
will affect those who underwent re-assignment before the 2004 Act came into force.

In R (DB) v Secretary of State for the Home Department, March 20 2006 the High
Court held that the decision to detain a former prisoner who was a male to female
transsexual in an all male high security psychiatric hospital was proportionate and not in
violation of her Convention rights.




                                            137
Homosexuality and human rights

In SL v Austria (Application No 45330/99) the European Court held that differential
age limits for heterosexual and homosexual sex were not justified and thus contrary to
article 14 of the Convention. Further, in Karner v Austria, decision of the European
Court 24 July 2003, it was held that the denial of a homosexual partner of his right to
succeed a tenancy shared by he and his partner before his partner's death was in
violation of articles 8 and 14 of the Convention. (See Mendoza v Ghaidan in the domestic
courts.

In addition, the Civil Partnership Act 2005 comes into force on 5 December 2005, giving
legal recognition and protection to same-sex relationships in areas such as housing,
pensions and inheritance, and allowing lesbian and homosexual couples to register their
partnership. The first ‘gay marriages’ took place in mid-December, including Elton John’s
on 21 December.

In M v Secretary of State for Work and Pensions, The Times, March 14 2006 the House
of Lords held that the statutory framework for assessing child support contributions
for non-resident parents, which distinguished between parents in heterosexual and
homosexual relationships was not in violation of article 8. The majority held that the link
with family life in this case was tenuous and that the Convention did not demand entire
equality with respect to the treatment of homosexuals. The provisions, now amended by
the Civil Partnership Act, above, struck a fair balance and it was within the state’s
margin of appreciation not to apply the Act retrospectively. (Noted by Winternmute in
[2006] EHRLR 722)



In BB v United Kingdom, decision of the European Court of Human Rights 10 February
2004, it was held that there had been a violation of article 14 in conjunction with article
8 of the Convention when the applicant had been charged with buggery of a 16 year old
man, contrary to s.12 of the Sexual Offence Act 1956. Although the law has since been
changed so as to equalise the age of consent for homosexual and heterosexual sex, the
applicant had been charged and convicted before the change in the law and had thus
been subjected to that discriminatory law which required the participants to be 18 years
of age. See Sutherland v United Kingdom, which held that the discrepancy in the old law
was unjustifiably discriminatory.

In Macdonald v Ministry of Defence and Pearce v Governing Body of Mayfield School,
The Times, June 20 2003, the House of Lords held that the word ‘sex’ used in the Sex
Discrimination Act 1975 did not cover sexual orientation so as to protect employees
from discrimination and harassment on grounds of their homosexuality. Meanwhile, the
Equality Bill is making its way through Parliament. This will make it unlawful to
discriminate on the grounds of age, gender reassignment, religion or belief or sexual
orientation, and will establish an Equality Commissioner for Great Britain. In addition,
the Sexual Orientation Regulations are now in force and make it unlawful to discriminate
on grounds of sexual orientation in employment and vocational training; the regulations
were challenged as being incompatible with EC law, but the claim failed – R (Amicus) v
Secretary of State for Trade and Industry [2004] EWHC 860.




                                            138
Note now the Equality Act (Sexual Orientation) Regulations 2007 (S1 2007/1263)
prohibiting discrimination on such grounds.

See also the decision of the House of Lords in Mendoza v Ghaidan, discussed above
under the Human Rights Act

In Re G (Children) [2006] EWCA 372 the Court of Appeal held that the non-biological
mother of children conceived during a same sex relationship should be granted primary
care of those children. Earlier authority which suggested giving preference to the
biological parents was decided at a time when attitudes to homosexual parenting were
very different. In the eyes of the child the natural parent may well be a non-biological
parent who had become the child’s psychological parent and that consideration was
obviously pertinent to any resolution of the competing claims of same-sex parents.
However, on appeal to the House of Lords [2006] UKHL 43 it was held that the status
of the biological mother in such a relationship was a significant factor to take into
account and that the Court of Appeal had allowed the unusual facts of the case to
distract itself from universally accepted principles relating to the paramount interests
of the child.

In EB v France, 22 January 2008 the European Court held that there had been a
violation of article 14 in conjunction with article 8 of the Convention when the
applicant’s request form adoption had been turned down on the grounds of the lack
of paternal referent – the applicant was a homosexual living with another woman.
The grounds for the refusal were found by the Court to be based implicitly and
unreasonably on her homosexuality and as such prima facie in breach of article 14.
Further, such grounds alone were not objectively justified as state law allowed
applications from homosexuals.

A friendly settlement was reached in the case of Brown v United Kingdom (Application
No 52770/99) and the government agreed a settlement of £52,500 covering all claims
and expenses. The applicant had been discharged from the armed forces on the grounds
of his homosexuality.

In Wilkinson and Kitzinger and another [2006] EWHC 2002 (Fam) it was held that a
same sex marriage entered into validly under Canadian law was not valid in English law.
The Civil Partnership Act 2004 has been passed by Parliament to provide the same
benefits to civil marriages as traditional ones, save the name. This was within the
state’s margin of appreciation and thus not in violation of articles 8 or 14. (Noted
by Booth and Burke: [2007] Fam. Law 253)

The Human Tissues and Embryos Bill 2007 will provide both women in a lesbian
relationship with legal status as a parent when one of them has a child following
fertility treatment.

The Criminal Justice and Immigration Bill 2007 contains an offence of inciting
hatred because of a person’s sexual orientation. Clause 126 of the Bill extends the
offence of inciting racial and religious hatred (in the Public Order Act 1986) to
grounds of sexual orientation.

Additional Reading



                                           139
General

Buergenthal, The Evolving Human Rights System [2006] American Journal if Int Law
783
Booth and du Plessis, Common Wealth (2003) 66 MLR 837
Campbell, Goldsworthy and Stone, Protecting Human Rights (OUP 2003)
Choudhury, Interpreting the right to equality under article 26 of the ICCPR [2003]
EHRLR 24
Conte, Davidson and Burchill, Defining Civil and Political Rights (Ashgate 2004)
Feldman, ‘Civil Liberties’ in Bogdanor (ed) The British Constitution in the Twentieth
Century (OUP 2003)
Fredman, Human Rights Transformed: Positive Duties and Positive Rights [2006] PL 498
Foster, Human Rights and Civil Liberties: Q and A (OUP 2005)
Fottrell, Reinforcing the Human Rights Act – the role of the ICCPR [2002] PL 48
Gearty, Principles of Human Rights Adjudication (OUP 2004)
Gearty, ‘Civil Liberties and Human Rights’ in Bamforth and Leyland (eds), Public Law in a
Multi-Layered Constitution (Hart 2003)
Gearty, Can Human Rights Survive? (Cambridge 2006)
Gorman, Rights and Reason: An Introduction to the Philosophy of Rights (Acumen
Publishing 2003)
Greer, ‘’Balancing and the European Court of Human Rights; A Contribution to the
Habermas-Alexy Debate [2004] CLJ 412
Harris, Human Rights and Mythical Beasts [2004] 120 LQR 428
Harvey, Talking About Human Rights [2004] EHRLR 500
Hiebert, Paliamentary Bills of Rights: An Alternative Model? (2006) MLR 7
Huscroft and Rishworth, Litigating Rights: Perspectives from Domestic and
International Law (Hart 2002)
Jackson, Human Rights, Criminal Justice and the Future of the Common Law [2006]
NILQ 352
Joseph, Schultz and Castan, The International Covenant on Civil and Political Rights:
Cases, Materials and Commentary (OUP 2004), 2nd edition
Monaghan, Equality Law (0UP 2006)
O’Neill, Fundamental Rights and the Constitutional Supremacy of Community Law after
Devolution and the Human Rights Act [2002] PL 724
456
Peers and Ward, The EU Charter of Fundamental Rights: Politics, Law and Policy (2007)
Piotrowicz and Van Eck, Subsidiary Protection and Primary Rights [2004] ICLQ 107
McColgan, Principe of Equality and Protection from Discrimination in International
Human Rights Law [2003] EHRLR 157
Nowak, What Practices Constitute Torture? [2006] Human Rights Quarterly 809
Singh, Equality: The Neglected Virtue [2004] EHRLR 141
Smith, Textbook on International Human Rights (OUP 2007)
Smith, Cases and Materials on International Human Rights (Rutledge 2006)
Steyn, Democracy Through Law [2002] EHRLR 723
Tierney, Beyond Cultural Relativism: Re-thinking the Human Rights Debate [2004]
Juridical Review75
Van Beuren, Including the Excluded: the case for an Economic, Social and Cultural Human
Rights Act [2002] PL




                                           140
Walker and Poe, Does Cultural Identity Affect Countries’ Respect for Human Rights?
(2002) Human Rights Quarterly 237
Mukherjee, The ICCPR as a ‘Living Instrument’: The Death Penalty and Cruel, Inhuman
and Degrading Treatment [2004] Journal of Criminal Law 507
See Special Issue of European Human Rights Law Review on Human Dignity and Equality;
[2006] (6) EHRLR

European Convention on Human Rights

Baker, Comparison tainted by justification against a ''compendious question'' in article
14 discrimination [2006] PL 476
Baker, The Enjoyment of Rights and Freedoms: A New Conception of the ‘Ambit’ under
Article 14 ECHR (2006) MLR 714
Beernaert, Protocol 14 and the new Strasbourg Procedures [2004] EHRLR 544
Blackburn and Polakiewicz (eds), Fundamental Rights in Europe: The ECHR and its
Member States 1950-2000 (OUP 2001)
Brems, Conflicting Human Rights: An exploration in the context of a fair trial in the
ECHR [2005] Human Rights Quarterly 294
Cavanagh, Policing the Margins: Rights Protection and the European Court of Human
Rights [2006] EHRLR 422
Gilbert, The Burgeoining Minority Rights Jurisprudence of the European Court of Human
Rights (2002) Human Rights Quarterly 736
Greer, Reforming the European Convention on Human Rights: towards Protocol No 14
[2003] PL 663
Haeck and Herrera, Interim Measures in the Case Law of the European Court of Human
Rights [2003] Netherlands Human Rights Quarterly 625
Lawson, ‘Disability, Degradation and Dignity: The Role of Article 3 ECHR [2005] NILQ
462
Lestan, Two Concepts of the Margin of Appreciation (2006) OJLS 705
Leach, The effectiveness of the Committee of Ministers in supervising the enforcement
of judgments of the European Court of Human Rights [2006] PL 443
Morris, Assisted Suicide under the European Convention on Human Rights: a critique
[2003] EHRLR 65.
Mowbray, Cases and Materials on the European Convention on Human Rights (OUP 2007)
Nowlin, The Protection of Morals under the European Convention for the Protection of
Human Rights and Fundamental Freedoms (2002) Human Rights Quarterly 264
Nowak, Challenges to the Absolute Nature of the Prohibition of Torture and Ill-
Treatment [2005] Netherlands HRQ 674
O’Boyle, On reforming the operation of the European Court of Human Rights [2008]
EHRLR 1
Ovey and White, The European Convention on Human Rights (Oxford 2006), 4th ed
Palmer, A Wrong Turning: Article 3 ECHR and proportionality [2006] CLJ 438
Powell, The right to security of the person in European Court of HUMAN Rights
jurisprudence [2007] EHRLR 649
Reudin, De minimis non curat the European Court of Human Rights [2008] EHRLR 80
Sales and Hooper, Proportionality and the Form of Law [2003] LQR 426
Sweeney, Margins of Appreciation: Cultural Relativity and the European Court of Human
Rights in the Post Cold War Era [2005] ICLQ 459
Taylor, Freedom of Religion: UN and European Human Rights Lawn and Practice
(Cambridge 2005)


                                          141
Wheatley, Minorities under the ECHR and the construction of a ‘‘democratic society’’
[2007] PL 770
Yutaka Aria-Yokoi, Grading Scale of Degradation: Identifying the Threshold of
Degrading treatment or Punishment under Article 3 ECHR [2003] Netherlands HRQ
385.

Human Rights Act

Allan, Parliament’s Will and the Justice of the Common Law (2006) Contemporary Legal
Problems 45
Allen, Human Rights and Judicial Review: A Critique of ‘’Due Deference’’ [2006] CLJ 671
Asmal, Designing a Bill of Rights for a Diverse Society [2007] EHRLR 597
Amos, Human Rights Law (Hart 2006)
Amos, The Impact of the Human Rights Act on the United Kingdom’s Performance
before the European Court of Human Rights [2007] PL 655
Amos, Separating human rights adjudication from judicial review [2007] EHRLR 679
Arden, Human Rights in the Age of Terrorism [2005] 121 LQR 604
Bonner, Fenwick and Harris-Short, Judicial Approaches to the Human Rights Act [2003]
ICLQ 350
Clayton, Judicial Deference and ‘‘democratic dialogue’’ [2004] PL 33
Clayton, The Human Rights Act Six Years On: Where are we Now [2007] EHRLR 11
Craig, The Human Rights Act, Article 6 and Procedural Rights [2003] PL 753
Davis, Human Rights and Civil Liberties (Willan Publishing 2003)
2003)
Davis Human Rights Law Directions (OUP 2007)
Dickson, B. ‘Law versus Terrorism: Can Law Win?’ [2005] 1 E.H.R.L.R. 11
Dickson, Safe in their hands? Britain’s Law Lords and human rights (2006) LS 329
Donnelly, Leonard Cheshire Again and Beyond [2005] PL 785
Edwards, Judicial Deference under the Human Rights Act (2002) 65 MLR 859
Ewing, ‘The Futility of the Human Rights Act’ [2004] PL 829
Feldman, ‘The Impact of Human Rights on the UK Legislative Process’ [2004] Stat LR 91
Feldman, Human rights, terrorism and risk: the roles of politicians and judges [2006] PL
364
Fenwick, Civil Liberties and Human Rights (Routledge 2007), 4th ed
Fenwick, Phillipson and Masterson Judicial Reasoning under the UK Human Rights Act
(Cambridge 2007)
Fenwick, Clashing Rights, the Welfare of the Child and the Human Rights Act (2004) 67
MLR 900
Fredman, From Deference to Democracy [2006] LQR 53
Gearty, C. ‘Human Rights in an Age of Counter-Terrorism: Injurious,
Irrelevant or Indispensable?’ [2005] 58 CLP 25
Gordon, Global Reach (2007) 157 NLJ 237
Hoffman and Rowe, Human Rights in the UK (Longman 2006) 2nd ed
Jowell and Cooper (eds.), Delivering Rights: How the Human Rights Act is Working (Hart
2003)
Juss, Constitutionalising Rights without a Constitution: The British Experience under
Article 6 of the Human Rights Act 1998 [2006] Stat LR 29
Lester, ‘The Human Rights Act 1998 – Five Years On’ [2004] EHRLR 258
Lord Irvine, ‘The Impact of the Human Rights Act: Parliament, the Courts and the
Executive’ [2003] PL 308


                                          142
Kavanagh, ‘The Elusive Divide between Interpretation and Legislation under the Human
Rights Act 1998’ (2004) OJLS 259
Kavanagh, Unlocking the Human Rights Act: ‘The Radical’’ Approach to Section 3(1)’
[2005] EHRLR 260
Kavanagh, ‘The Role of Parliamentary Intention in Adjudication under the HRA 1998’
(2006) OJLS 153
Kay, ‘The ECHR and the Control of Private Law’ [2005] EHRLR 466
Keating., Protecting or Punishing Children: physical punishment, human rights and English
law reform (2006) LS 394
Klug, ‘Judicial Deference under the Human Rights Act 1998’ [2003] EHRLR 125
Klug and Starmer, Standing Back From the Human Rights Act: how effective is it 5
years on? [2005] PL 716
Klug, The Long Road to Human Rights Compliance [2006] NILQ 186
Klug, A bill of rights, do we need one or do we already have one? [2007] PL 701
Leyland, The Human Rights Act and Local Government: Keeping the Courts at Bay [2003]
NILQ 136
Lewis, The European Ceiling on Human Rights [2007] PL 720
Masterman, ‘Section 2(1) of the Human Rights Act 1998: binding domestic courts to
Strasbourg?’
[2004] PL 725
Masterman, ‘Taking the Strasbourg Jurisprudence into Account: Developing a Municipal
Law of Human Rights’ under the Human Rights Act’ [2005] ICLQ 907
McDermott, ‘The Elusive Nature of the Public Function’ (2003) 66 MLR 113
Nicol, Statutory interpretation and human rights after Anderson [2004] PL 274
Nicol, Law and Politics after the Human Rights Act [2006] PL 722
O’Brien, Judicial Review under the Human Rights Act 1998: legislative or applied review?
[2007] EHRLR 550
O’Cinneide, Democracy, Rights and the Constitution – New Directions in the Human
Rights Act Era [2004) CLP 175
Pedain, The Human Rights Dimension of the Diane Pretty case [2003] CLJ 181
Plowden and Kerrigan, Advocacy and Human Rights (Cavendish 2002)
Poole, Legitimacy, Rights and Judicial Review (2005) OJLS 697
Rivers, ‘Proportionality and Variable Intensity of Review’ [2006] CLJ 174
Shah, S. ‘The UK’s Anti-Terror Legislation and the House of Lords: The First Skirmish’
[2005] 5 EHRLR 403
Starmer, Two Years of the Human Rights Act [2003] EHRLR 14
Steyn, Dynamic Interpretation amidst an orgy of Statutes [2004] EHRLR 245
Steyn, Deference: A Tangled Story [2005] PL 348
Steyn ‘2000-2005: Laying the Foundations of Human Rights Law in the
United Kingdom’ [2005] 4 EHRLR 349
Stone, Textbook on Civil Liberties and Human Rights (OUP 2006), 6th edition
Sunkin, Pushing Forward the Frontiers of Human Rights Protection: The Meaning of
Public Authority under the Human Rights Act [2004] PL 643
Tomkins, A. ‘Readings of A v Secretary of State for the Home Department’
[2005] P.L. 259
Wadham and Taylor, Bringing More Rights Home [2002] EHRLR 714
Wadham and Mountfield, Blackstone’s Guide to the Human Rights Act 1998 (OUP 2003),
3rd edition

Freedom of Speech/Assembly


                                           143
Barendt, Freedom of Speech (2005 OUP) 2nd ed
Barendt, Free Speech and Abortion [2003] PL 580
Blom Cooper, Press Freedom, Constitutional Rights or Cultural Assumption [2008] PL
260
Brabyn, Protection against judicially compelled disclosure of the identity of news
gatherers’ confidential sources in common law jurisdictions (2006) MLR 895
Costigan, Protection of Journalist’s sources [2007] PL 464
Cram, A Virtue Less Cloistered: Courts, Speech and Constitutions (Hart 2002)
Cram, Hate Speech, the First Amendment and cross burning in the USA (2003)
Communications Law 389
Fenwick and Phillipson, Media Freedom under the Human Rights Act (OUP 2006)
Geddis, ‘If thy right eye offend thee, pluck it out’: R v BBC, ex p Prolife Alliance (2003)
66 MLR 885
Geddis, Free Speech Martyrs or Unreasonable Threats to Social Peace? - ‘‘Insulting’’
Expression and Section 5 of the Public Order Act 1986 [2004] PL 853
Hare, Inflammatory Speech: cross-burning and the first amendment [2003] PL 408
Hare, Crosses, Crescents and Sacred Cows: Criminalising Incitement to Religious Hatred
[2006] PL 521
Hare, Methods and Objectivity in Frees Speech Adjudication: Lessons from America
[2005] ICLQ 49
Hunt, Criminal Prohibitions on Direct and Indirect Encouragement of Terrorism [2007]
Crim LR 441
Keane, Attacking Hate Speech under Article 17 of the European Convention on
Human Rights [2007] Netherlands Human Rights Quarterly 241
Kearns, The Ineluctable decline of obscene libel [2007] Crim LR 667
Kearns, obscene and blasphemous libel: misunderstanding art [2000] Crim LR 652
Jaconelli, Defences to Speech Crimes [2007] EHRLR 27
Lewis, Political Advertising and the Communications Act 2003: Tailored Suit or Old
Blanket? [2005] EHRLR 290
Loveland, Public Protest in Parliament Square [2007] EHRLR 252
McColgan, Privacy, Freedom of Expression and the Grant of Interim Injunctions
[2008] CJQ 22
Mead, Strasbourg succumbs to the temptation ‘‘To make a God of the Right of Property’’
[2003] J Civ. Libs 98
Mead, Strasbourg discovers the right to demonstrate [2007] EHRLR 133
Mead, The Right to Peaceful Process under the ECHR [2007] EHRLR 345
Macdonald and Jones, The Law of Freedom of Information (OUP 2003)
Munro, The value of Commercial Speech [2003] CLJ 134
Munro, Sex, Laws and Videotape: the R18 category [2006] Crim LR 957
Newman, Allowing Free Speech and Prohibiting Persecution – A Contemporary Sophie’s
Choice (2006) J Crim Law 329
Rowbottom, Obscenity Laws and the Internet [2006] Crim LR 97
Rozenburg, Privacy and the Press (OUP 2004)
Sanderson, Is Von Hannover a step backward for the substantive analysis of speech and
privacy interests? [2004] EHRLR 631
Sedley, The Rocks or the Open Sea: Where id the Human Rights Act heading? (2005)
Law and Society 3
Scott, A Monstrous and Unjustifiable Infringement? Political Expression and the Ban on
Advocacy Advertising (2003) 66 MLR 224


                                            144
Sottiaux, Anti-Democratic Associations: Content and Consequences in Article 11
Adjudication [2004] (4) Netherlands Human Rights Quarterly
Thorgeirsdottir, Journalism Worthy of the Name: An Affirmative Reading of the ECHR
[2004] Netherlands Human Rights Quarterly
Tugendhat and Christie (eds), The Law of Privacy and the Media (OUP 2002) (150 page
Supplement 2003)
Turrenne, The Compatibility of Criminal Liability with Freedom of Expression [2007]
Crim L R 866



Prisoners' Rights

Borroks-Gordon and Bainham, Prisoners’ families and the Regulation of Contact [2004] J.
Soc. Wel. & Fam. L 263
Codd, Regulating reproduction: prisoners' families, artificial insemination and human
rights’ [2006] EHRLR 39.
Codd, the Slippery Slope to Sperm Smuggling (2007) Med Law Rev 220
Creighton and King, Prisoners and the Law (Butterworths 2004), 3rd edition
Eady, Prisoners’ Rights since the Wolf Report (2007) Howard J 264
Easton, Electing the Electorate: The Problem of Prisoner Disenfranchisement (2006) 69
MLR 443
Evans, Torture (editorial) [2006] EHRLR 101
Foster, Case Analysis on Hirst v United Kingdom (No2) [2004] EHRLR 436
Foster, Prison Conditions, human rights and Article 3 ECHR [2005] PL 33
Foster, The Negligence of Prison Authorities and the Protection of Prisoner’s Rights
(2005) (26) Liverpool Law Review 75
Foster, Automatic Forfeiture of Prisoners’ Rights (2007) Notts Law J 1
Jackson, Evidence and Proof in Parole Hearings [2007] Crim LR 417
Jackson, Prisoners, their partners and the right to family life [2007] Child and Family
Law Quartelry 239
Jewkes (ed) Handbook on Prisons Willan 2007)
Jewkes and Johnston, Prison Readings (Willan 2006)
Lawson and Mukherjee, Slopping out in Scotland [2004] EHRLR 645
Lazarus, Contrasting Prisoners’ Rights: A Comparative Examination of England and
Germany (OUP 2004)
Lazarus, Conceptions of Liberty Deprivation (2006) MLR 738
Lewis, Difficult and slippery terrain: Hansard, human rights and Hirst v UK
[2006] PL 209
Lines, Injecting Reason: Prison Syringe Exchange and Article 3 ECHR [2007] EHRLR 66
Livingstone, Owen and Macdonald, Prison Law (OUP 2003) 3rd edition
Londondo, Applying Convention Jurisprudence to the needs of women prisoners [2007]
PL 198
Munro, When Criminals Sell their Stories [2006] PL 58
Murdoch, The impact of the Council of Europe's "Torture Committee" and the evolution
of standard-setting in relation to places of detention. [2006] E.H.R.L.R. 159
Owers, Prison Inspections and the Protection of Human Rights [2004] EHRLR 107
Padfield, Beyond the Tariff: Human Rights and the Release of Life Sentence Prisoners
(Willan Publishing 2002)
Padfield et al, Discretion in the Criminal Justice System (Willan Publishing 2003)
Padfield, The Parole Board in Transition [2006] Crim LR 3


                                          145
Samuels, In Denial of Murder: No Parole (2003) Howard J Crim Justice 176
Shute, Punishing Murderers: Release Procedures and the ‘Tariff’ 1953-2004 [2004] Cim
L. R. 873
Tabib and Mole, ‘Imprisoned Parents and the Right to Family Life (2006) International
Family Law Journal 97

Privacy

Bamforth: Same sex partnerships: some comparative constitutional lessons [2007]
EHRLR 47
Barber, A right to privacy? [2003] PL 602
Brazell, Confidence, Privacy and Human Rights: English Law in the Twenty-First Century
[2005] EIPR 405
Campbell and Lardy, Transsexuals – the ECHR in Transition [2003] NILQ 209
Catley, A long road nearing the end [2003] JSWFL
Chadwick, The Value of Privacy [2006] EHRLR 495
Deasley, Introducing Publicity Rights: Breach of Confidence, the Photograph and
Commodifying the Image [2003] NILQ 99
Delany and Murphy, Towards Common Principles Relating to the Protection of Privacy
Rights? [2007] EHRLR 568
Fenwick, Clashing Rights, the Welfare of the Child and the Human Rights Act (2004) 67
MLR 900
Fenwick and Phillipson, National Irish Bank v RTE and Finding the Balance [2004] NILQ
118
McColgan, Privacy, Freedom of Expression and the Grant of Interim Injunctions
[2008] CJQ 22
Mead, It’s a funny old game – privacy, football and the public interest [2006] EHRLR 541
Moore, Privacy, the Press and the Law (Palladian 2003)
Moreham, Privacy in the Common Law [2005] 121 LQR 628
Moreham, Privacy in Public Places [2006] CLJ 606
Moreham, The right to respect for private life in the European Convention: a re-
examination [2008] EHRLR 44
Morris and Nott, Marriage Rites and Wrongs (2005) (1) Journal of Social Welfare and
Family Law 43
Morgan, Privacy, Confidence and Horizontal Effect: '' Hello'' Trouble [2003] CLJ 442
Morse, Rights Relating to Personality, Freedom of the Press and Private International
Law [2005] CLP 133
Mulheron, A Potential Framework for Privacy? A Reply to Hello! (2006) MLR 679
Ormerod and McKay, Telephone Intercepts and their Admissibility [2004] PL 15
Phillipson, Towards a common law right of privacy under the Human Rights Act (2003)
MLR 726
See also European Human Rights Law Review (Special Issue) Privacy and the Law (Sweet
and Maxwell)




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