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Human Rights Act 1998 Cases

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					                               Human Rights Act 1998 Cases
See Workshop 8 egal Method & Professional Skills for relevant cases.
Restrictions upon protected rights must be justified in four ways;
1) Must be ‘prescribed by law’ = similar to Dicey’s ‘rule of law’ referred to in the
   preamble. (Benthem below)
2) Must fall within the ‘margin of appreciation’. This applies where there are national
   differences in political, religious or moral values or practices. The ECHR will not
   substitute its views for those of the state, but ask itself only whether the national
   authorities were entitled to think the interference complained of was, for example,
   ‘necessary in a democratic society’.            NB; there are wider margins of
   appreciation in areas of religion, morality, regulation of property, advertising and
   national security and narrower in respect of right to fair trial and freedom of the
   media where the ECHR places importance on the right of the public to a free flow of
   information.
3) Must usually be ‘weighed’ according to the concept of what ‘is necessary in a
   democratic society’. Ie there must be a ‘pressing social need’ which is more than
   merely ‘useful, reasonable or desirable’. They must also be ‘proportionate to the
   legitimate pursued’ (Handyside below)
4) Must not be discriminatory in the sense that like cases must be treated alike Marckx
   v Belgium [1979] EHRR 330

Handyside v UK [1976] 1 EHRR 737
A School text book was ordered to be destroyed as being offensive and the issue was
whether the destruction fell within one of the paragraph 2 exceptions of Article 10. Was
it necessary for the protection of morals?
Held: The ‘margin of appreciation’ was left to the UK other members states attitudes
were irrelevant. No breach of Article 10 was established.
NB: Judge Moster dissenting – the action was inappropriate and therefore could not be
‘necessary’.

Teleological interpretation = the court looks at the purpose intended to be served by the
convention of protecting liberal and democratic values and the rule of law and the rule of
law and can take account of changing state practices and attitudes.

Sunday Times v UK (1979-80) 2 EHER 245
Restrictions upon protected rights must be clear, (Vague terms in Public Order Act 1986
may be vulnerable?) must not involve wide discretion and must be made in accordance
with a regular and accessible law-making process.

Benham v UK (1996) 22 EHRR 293 (Independent 8/2/95)
Art. 5 right of liberty and security of person and Art 6 right to a fair and public hearing
within a reasonable time before an independent and impartial tribunal established by
law were considered. The applicant was summonsed to court and imprisoned for 30
days in prison for failure to pay his community charge, despite having no means to pay,
no assets and not being entitled to income support. The failure by the justices to
conduct an adequate inquiry as to why he had not paid prior to ordering detention
amounted to a denial of the right to liberty Art 5 and failure to provide legal
representation amounted to a violation of Art 6. Proceedings for tax enforcement could
be viewed as punitive and result in the loss of liberty. A person must be able to
reasonably foresee that the conduct in question would be unlawful and there must be
adequate safeguards including independent and accessible courts.

				
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