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HUMAN RIGHTS UPDATE 2005

Philip Havers QC
Marina Wheeler QC


HUMAN RIGHTS UPDATE 2005


I. Impact of HRA on substantive areas of law

i)  Regulating anti-social behaviour: asbo's and travellers

 R (M) v Secretary of State for Constitutional Affairs [2004] 1 WLR 2298

The Claimant, along with 66 others suspected of drug dealing in Leeds City centre, was subject to an interim anti-social behaviour order pursuant to the Crime and Disorder Act 1998.  The order was granted without notice pending hearing of the full application in order to protect potential witnesses and ensure the effectiveness of the orders. The Claimant challenged the "without notice" order, unsuccessfully alleging a violation of his Article 6 rights. The Court of Appeal held that because an interim order is made for a limited time in circumstances where it can be reviewed or discharged, whilst it restricted freedoms, it did not determine civil rights and so Article 6 was not engaged. However, the procedure had to be fair. The more intrusive the order the more the court will require proof that it is necessary but there is nothing intrinsically objectionable about the power to grant an interim ASBO without notice.    

Stanley v Metropolitan Police and Brent Council [2004] EWHC 2229 (DC)

The Claimants had been made subject to ASBOs during proceedings which were widely reported in the press. Thereafter the police approved leaflets which contained photographs of the Claimants, their ages and their names, to be distributed in the area from which they were excluded. The local authority posted details of the proceedings on its website and in its newsletter to tenants. The Court dismissed the Claimants' argument that the extent of the publicity was unlawful and breached their Article 8 rights. It found that ASBOs required publicity in order to operate. Where publicity was intended to inform, reassure, assist in enforcing the orders and deter others it would not be effective without photographs and names and addresses. In considering post-order publicity the Convention rights of those subject to the orders had to be considered as did those of the victims of the anti-social behaviour.

Wareham v Purbeck Council [2005] EWHC 358 (QBD)

Before the application for an ASBO was made the local authority informed Mr Wareham that a case conference would be held to consider his behaviour and whether to seek an order. The conference decided to seek an order, and so informed Mr Wareham, enclosing the application and supporting documentation. He appealed by way of case stated, alleging that the failure to involve him prior to the court proceedings breached his Article 8 and Article 6 rights. The Court rejected these claims on the grounds that he had a full opportunity to put his view at the time of the application and Article 6 had no application to a decision whether or not to commence an application to a court.

See also R (McCann) v Crown Court at Manchester [2003] 1 AC 787 (full ABSOs)

Connors v UK (2005) 40 EHRR 9

The applicant and his family lived on a local authority gypsy site for 13 years and then moved away for a year. When they returned in October 1998 they were granted a licence to occupy a plot provided they did not create a "nuisance". In January 2000 they were served with a notice to quit which contained no written or detailed reasons but the site manager asserted that the family (including four children aged 14, 13, 10 and 4 months) had breached the licence conditions. One child had kidney problems, the parents were in poor health and the 10 year old child was attending the local primary school. The family were evicted in August 2000 in a five hour operation. The ECHR found a violation of Article 8.

All parties agreed that the eviction interfered with the Applicant's Article 8 rights and that the interference was in accordance with the law and pursued a legitimate aim, namely the protection of other occupants on the site. As to whether it was "necessary in a democratic society", the ECHR declared itself unpersuaded as to the necessity of a statutory scheme which permitted summary eviction without the burden of providing reasons which could be examined as to their merits by an independent tribunal.      

See also Price v Leeds City Council [2005] EWCA Civ 289 (CA)

ii) Mental health

R (E) v Bristol City Council [2005] EWHC 74

The Claimant mental health patient did not want S to carry out the functions of a nearest relative under the Mental Health Act. The court found that the apparent requirement under s.11(3) and (4) to inform and consult S would be against the Claimant's express wishes and potentially harmful to her health and an interference with her Article 8 rights. However it went to find that the obligations based on whether it was "practicable" to inform and consult the nearest relative could be interpreted pursuant to s.3 HRA so as to take account of the Claimant's wishes, health and well-being. Any approved social worker could thus be relieved of the duty under s.11(3) and (4).
 
R (H) v Secretary of State for Health [2005] 1 WLR 1209 (CA)

The process by which a patient who suffered from Down's Syndrome was prevented from applying to a mental health review tribunal for discharge by reason of her being too disabled/incompetent to do so was incompatible with Article 5(4) - the right to regular review of the legality of detention. Article 5 required the incompetent patient to be placed (as far as possible) in the same position as the competent patient, to enable an application to be made. The Court found, however, that the process of "reading down" (ie interpretation via s.3) could not be used to "add to a statute provisions that it does not contain". A declaration of incompatibility was thus made.

R (B) -v- Ashworth Hospital Authority [2005] 2 WLR 695 (HL)

The Claimant, once convicted of manslaughter, was classified by the court as suffering from a mental illness and detained under ss.37 and 41 Mental Health Act 1983. Clinicians also diagnosed a personality disorder and detained him on the ward. The Court of Appeal found his treatment without consent for a psychopathic disorder was unlawful unless he was classified as suffering from that disorder by a mental health review tribunal. The House of Lords found that given the imprecision in psychiatric diagnosis it was not necessary to withhold treatment pending re-classification. There was no breach of Article 5 which was not concerned with suitable treatment or conditions so long as the medical criteria for detention were met and the patient was detained in an appropriate place. 

See also: R (SC) v (1) MHRT (2) Secretary of State for Health & Secretary of State for Home Department [2005] EWCA 17

iii) Education and exclusions

R (SB) v Headteacher and Governors of Denbeigh High School [2005] EWCA Civ 199 (CA)

Denbigh High School in Luton had a uniform policy, designed in consultation with the Muslim community, from which the majority of its pupils came. For two years, in accordance with the policy, Shabina Begum wore the shalweer kameeze but on the first day of the new school year in September 2002 she arrived in a jilbab, a full-length gown covering the whole body except for face and hands. She was sent home and told to return in the correct uniform. She refused to do so and never returned to the school.
The Court of Appeal found that the school had failed to justify the limitation it imposed on her right to manifest her religion and did not attribute to her beliefs the weight they deserved. Accordingly it had violated her Article 9(1) rights and denied her access to education in violation of Article 2 of the First Protocol.

R (Williamson & Ors) v Secretary of State for Education and Employment [2005] UKHL 15 [2005] 2 WLR 590

The Appellants were a group of head teachers, teachers and parents who challenged the extension of s.548 of the Education Act 1996 which bans corporal punishment in all schools including independent schools.  They claimed to speak on behalf of "a large body of the Christian community" which believed that a Christian education should include the right of teachers to administer physical punishment to children guilty of indiscipline.  The Lords found that the ban did interfere materially with the parents' rights to freedom of religion under Article 9 and the right to freedom of education under Article 2 of the First Protocol. However, the interference was necessary in a democratic society ?for the protection of the rights and freedoms of others namely to protect children from the "distress, pain and other harmful effects of physical violence".

A v Headteacher and Governors of a School [2004] EWCA Civ 382, [2004] 2 WLR 1442

The Claimant was excluded from school following an allegation against him of arson at the school. He was initially excluded for 45 days when he was given work to do at home. At the end of the 45 days the parents did not attend a reintegration meeting and he was removed from the roll. The Court of Appeal found the exclusion to be unlawful and that the period after the 45 days, when no substitute education was received, breached the Claimant's right to education under Article 2, First Protocol for which he was entitled to damages.

See also: Douglas v North Tyneside [2003] EWCA Civ 1847;  Abdul Hakim Ali v Head Teacher and Governors of  Lord Grey School [2003] EWHC 1533 (QB)

iv) Property, possessions and nuisance 

Beaulane Properties v Palmer (ChD) (unreported)

In 1983 P was granted permission to use a field to graze animals by its owner at that time.  In 1986 he was asked to vacate it pending sale but as he heard nothing from the new owners he continued to use it. He then applied to register title by adverse possession claiming to have had exclusive control and possession for over 12 years. The Court found that applying s.75 of the Land Registration Act amounted to a deprivation of possession within the meaning of Article 1 of the First Protocol notwithstanding that it was a purely private transaction. There was no general or public interest justifying such a deprivation without compensation, it advanced no legitimate aim and was disproportionate. Consequently s.75 was incompatible with Article 1 of the First Protocol.

Gomez v Spain [2004] ECHR (App No 4143/02)

Mrs Gomez lived in a residential area of Valencia in which over the years noise levels increased as a result of the opening of clubs, bars and discos and the attendant increase in traffic. This caused her insomnia and other health problems.  In 1997 after the area was designated an "acoustically saturated zone", the city council granted a licence to a disco in the building in which she lived. Litigation in the national courts was unsuccessful. However, the ECHR found a breach of Article 8 in view of the volume of noise complained of at night, beyond permitted levels, which had continued for some years. The public authorities' failure to take action led to a breach of the State's positive obligation to guarantee Mrs Gomez' right to respect for her home and private life.

Andrew v Reading Borough Council [2004] EWHC 970

The local authority applied for summary judgment on Mr Andrew's £4,200 claim being the cost of noise insulation he had installed to mitigate allegedly excessive noise created by a new traffic scheme. The application - which was transferred to the High Court - was rejected on the grounds that an increase in traffic noise that seriously affected an individual could engage Article 8 and that evidence that life became intolerable and required insulation measures, if accepted, could found a breach of Article 8. Summary judgment was thus refused.
See also:  Surugiu v Romania (no. 48995/99); Arscott v (1) Coal Authority(2) Merthyr Tydfil County BC[2004] EWCA Civ 892; David Loughv First Secretary of State & Bankside Developments Ltd [2004] EWCA Civ 905

v) Article 14 discrimination

Ghaidan v Godin-Mendoza [2004] 2 AC 557

Mr Godin-Mendoza had lived in a stable and permanent homosexual relationship with the protected tenant of the basement flat of 17 Cresswell Gardens until the latter's death at which point the landlord brought possession proceedings. At first instance it was held that Mr G did not succeed to the tenancy as the surviving "spouse" but became entitled to an assured tenancy as a member of the original tenant's family. The House of Lords held that since the schedule treated survivors of homosexual partnerships less favourably than survivors of heterosexual partnerships without any rational or fair ground for distinction, the defendant's rights under article 8 and 14 were infringed.

In the Court of Appeal Buxton J stated that "even the most tenuous link with another provision of the Convention will suffice for Article 14 to enter into play". However, this approach has not been widely followed.

R (Hindawi) v Secretary of State for the Home Department [2005] 1 WLR 1102

Mr Hindawi (a Syrian national) and Mr Headley (a Jamaican national), were both long term prisoners and subject to deportation orders. Under the Criminal Justice Act 1991, the Secretary of State was empowered to release Mr Hindawi after he had served a third of his sentence and Mr Headley once he had served half. He also had the power, but no obligation, to refer the cases to the Parole Board and, if he did so, he was not obliged to follow the Board's recommendations as to release. By contrast, the cases of long-term prisoners not subject to deportation orders were referred to the Parole Board and, for prisoners serving less than 15 years, recommendations for release were mandatory.

The Court of Appeal reversed the finding of McCombe J that the difference in treatment was contrary to Article 14 when read together with Article 5. It reasoned that a convicted prisoner enjoys no right under Article 5 until the end of his sentence. An obligation to take the Parole Board's advice before deciding on early release thus did not come within the ambit of Article 5 and accordingly did not infringe Article 14. (NB Neuberger L J dissented). 

R (S) v Chief Constable of the South Yorkshire Police [2004] 1 WLR 2196

The Lords held that the retention by the police of fingerprints and DNA samples from suspects who had not been convicted, whilst an interference with their Article 8 rights was objectively justified as being necessary for the prevention of crime and the protection of the rights of others.  It also found that the difference in treatment between former suspects (who had given samples) and other unconvicted persons (who had not), was not on the ground of "other status" within Article 14 and so not on a proscribed ground of discrimination. In reaching this conclusion the Court applied the dicta of the ECHR in Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) I EHRR 711 that other status means "personal characteristic". As Lord Steyn stated, "The fact that the police are now in possession of fingerprints and samples which were previously lawfully acquired as a result of a criminal investigation does not give rise to a "status" within the meaning of Article 14".

R (Hooper) v Secretary of State for Work and Pensions [2005] UKHL 29

Discrimination between men and women in the payment of widow's pension was objectively justified on grounds that older women as a class were likely to be needier than older widowers as a class or younger widows as a class. The defence of statutory obligation under s.6(2) HRA applied.

R (Morris) v Westminster City Council [2005] 1 All ER 351 (Admin)

Section 185(4) of the Housing Act 1996 was incompatible with Article 14 to the extent that it required a British citizen's dependent child, who was subject to immigration control, to be disregarded when determining whether the British citizen had priority need for accommodation. A citizen whose dependent child was not subject to immigration control would be treated differently. The difference in treatment was on grounds of national origin which could not be positively justified. The local authority's refusal to treat the claimant as having priority need infringed her right to enjoy without discrimination her right to respect for family life under Article 8. Declaration of incompatibility granted.
   
See also: Taylor v Lancs [2005] EWCA Civ 284

vi) Privacy, press intrusion, and disclosure

Campbell v MGN Ltd  [2004] 2 AC 457

Supermodel, Naomi Campbell, repeatedly asserted in public that, unlike other successful models, she did not take drugs. The Daily Mirror ran a series of articles which disclosed her drug addiction, stated that she was attending meetings of Narcotics Anonymous and printed photographs of her on the street as she was leaving a meeting. In claiming damages for breach of confidentiality she accepted that the paper was entitled to "set the record straight" about her addiction and the bare fact that she was receiving treatment but alleged that additional details - such as how frequently she attended meetings - and the covert photographs amounted to a breach of confidence.

The Lords agreed that the correct approach was to balance Miss Campbell's Article 8 right to privacy against the right of the media to impart information to the public (pursuant to Article 10) - neither Article having pre-eminence. They did not, however, agree on the weight to be attached to the competing rights on the facts of the case. In finding for Miss Campbell, the majority held that the assurance of privacy was essential to the type of treatment Miss Campbell was undergoing and disclosure might set back the process of recovery. As the same time it rejected the Mirror's claim that publication of the additional details and photograph were necessary to add credibility to a legitimate story and accordingly found their publication to be an unjustified interference with Miss Campbell's right to privacy.

The Beckham Nanny Case (23.04.05, unreported)

Abbie Gibson was employed as a nanny by the Beckhams for two years. Her contract included a confidentiality clause in which she promised not to disclose, without the prior written consent of her employers, any information about their personal affairs acquired by reason of her employment unless disclosure was necessary for the proper performance of her duties, was required by law or the information was otherwise in the public domain. When her employment ended she sold her account of their marriage to the News of the World for £125,000.
The Beckhams' application for an injunction to prevent publication was refused by Mr Justice Langley.  It is unclear whether this was on the grounds that the duty of confidence was overridden by a compelling public interest in publication or whether the information, or much of it, was already in the public domain.
The decision has been widely criticised both for the expansive interpretation of "public interest" and for the readiness to disregard the confidentiality agreement.

Von Hannover v Germany [2004] ECHR (App No 59320/00)

After almost a decade of fruitless litigation in the German courts to prevent the publication of photographs taken in France, Princess Caroline of Monaco complained to the ECHR that their decisions breached her Article 8 rights. The photographs all showed her going about her daily life - riding, shopping, having dinner in a restaurant, walking with her children and in one instance falling over. The German law, as applied by the courts, provides that if you are a "figure of contemporary society par excellence" the public has a right to know how you behave in public.
In finding a breach of the State's positive obligation to guarantee the right to privacy, the ECHR drew a distinction between reporting facts, which contribute to a political or public debate, and the publication of material the sole purpose of which was to satisfy the curiosity of readers. The mere fact that she was well known did not create a legitimate public interest in how she behaves in her private life even if she is in a public place. The domestic law was held to be too vague and insufficient to protect the right to privacy.

Douglas v Hello! [2005] EWCA Civ 595 (CA)

The unauthorised photographs of the Douglas/Zeta-Jones wedding plainly portrayed aspects of their private life and fell within the protection of the law of confidentiality as extended to cover private or personal information. The test (as per Campbell) was whether Hello! knew or ought to have known that the couple had a reasonable expectation that the information would remain private. The unauthorised photographs invaded the area of privacy which the couple had chosen to retain and they (but not the publisher of OK) had a right to protect that area.
(NB: Decision of Court of Appeal given last week).

X v Y [2004] EWCA Civ 662, IRLR 625

The applicant worked for a charity which promoted the personal development of young people. He was arrested and cautioned for gross indecency after engaging in a "sexual act" with another man in a public toilet. When his employer learnt about the events he was disciplined and dismissed, not the employer stressed for his sexuality but having committed a criminal offence which he failed to disclose.  His claim that his dismissal breached his Article 8 rights failed. The CA held that the conduct did not take place in his private life. It happened in a place to which the public had access, was a criminal offence, was relevant to his employment and should have been disclosed as a matter of legitimate concern. That the applicant wished to keep it private did not make it part of his private life or deprive it of its public aspect.

 
R(X) v Chief Constable of West Midlands Police [2004] EWCA Civ 1068, 1 WLR 1518

When X sought work via a social work agency, which involved working with under 18s, the agency requested an Enhanced Criminal Record Certificate which was issued pursuant to s.115 of the Police Act 1997. The information included an allegation - not resulting in conviction - of indecent exposure and a threat to rape.
The CA rejected the claim that the provision of the information - in accordance with the law - breached Article 8. The chief constable had considered the evidence and come to a view. A full explanation of the decision had been provided which indicated a balancing of competing factors. The policy of the legislation was to protect children and vulnerable adults.  It was not necessary to permit X to provide further explanations before disclosure. These could be made to the employer.  

See also: Greene v Associated Newspapers [2005] 1 All ER 30; Tillery Foods v (1) Channel Four Television (2) [2004] EWHC 1075; McGowan v Scottish Water [2005] IRLR 167

vii) The right to life/the right to die

The most significant recent development for those who wish to live was the decision of Munby J in Burke -v- GMC [2005] 2 WLR 431.  According to both the GMC and the Secretary of State for Health the judge held that if a patient is competent or, although incompetent, has made a valid and relevant advance directive, he has a right not only to decide what life-prolonging treatment he should receive but also to require the provision of that treatment.  (Not everyone agrees that that is what the judge decided).  If this is correct, then it marks a fundamental shift in the patient/doctor relationship since the medical profession would be under a legal obligation to provide patients with whatever life-prolonging treatment they decided that in their best interests they should receive, or, at the very least, artificial nutrition and hydration which is what Mr Burke is concerned to ensure he will receive when, in due course, he needs it.  However, the case has gone to the Court of Appeal and the hearing of the appeal took place last week. 

Vo -v- France (App No 53924/00) [2004] 2 FCR 577

This case is of interest because the ECHR had to consider, again, whether the unborn child has a right to life protected by Article 2 of the Convention.  The applicant, who was six months pregnant, had been mistaken for another patient with the same name and subjected to a clinical procedure to remove a non-existent coil.  During the procedure, the doctor pierced the amniotic sac necessitating a termination of the pregnancy.  She made a criminal complaint but the doctor was acquitted on the ground that under French law, a foetus was not a living person but rather an extension of the mother's body.  The ECHR refused to uphold the complaint, holding that Article 2 did not confer a right to life that extended to a foetus and that, given the wide degree of variance on the point in the domestic law of the Contracting States, determination of the commencement of life came within the margin of appreciation.

Rowley -v- UK (App No 31914/03)

Whilst under the supervision of his carer, a 23 year adult with cerebral palsy drowned in the bath.  His mother complained to Strasbourg under Article 2, alleging that it had been violated by the death of her son whilst in the care of the State, that legal protections against careless killing by corporations were inadequate and that the various investigations into her son's death were insufficient.  She also argued that the absence of corporate killing legislation breached Article 2.  Her claim was struck out both on the basis of her lack of victim status and also because it was found to be manifestly ill-founded.  The Court held that there is no absolute right to have recourse to the criminal law under Article 2. 

The most significant development for those who wish to die has been the introduction in the House of Lords by Lord Joffe of the Assisted Dying for the Terminally Ill Bill.  This would make lawful the provision of assistance by doctors to those with a terminal illness who wanted help to die.  Put shortly, the Bill sought to legalise, for those who are terminally ill, who are mentally competent and who are suffering unbearably, medical assistance with suicide or, in cases where the person concerned would be physically incapable of taking the final action to end his or her life, voluntary euthanasia.  The House of Lords appointed a Select Committee to examine the Bill and the Committee took evidence from a very wide range of interested parties.  Its report was published on 4 April 2005.  The Committee recommended that an early opportunity should be taken in the next session of Parliament for a debate on the report.  It follows that, notwithstanding determined opposition from a number of groups and individuals, Parliament may yet change the law so as to enable those, like Diane Pretty, to receive help to die so as to avoid the unbearable suffering which their illness would otherwise entail.

viii) Inquests post Middleton


Inquests have been in disarray since the decision of the Lords in Middleton that in order to satisfy Article 2, the "how" in rule 36(1)(b) of the Coroners Rules (and the corresponding provision of the Act) Act should be interpreted to mean "by what means and in what circumstances.".

The direction that the coroner is to consider in an individual case, the form of verdict - short, narrative or in answer to questions put so long as rules 42 and 36(2) were respected - has produced great confusion in practice.

Goodson -v- HM Coroner for Bedfordshire and Luton [2004] EWHC 2931 (Admin)

The deceased had died in hospital following an operation.  At the outset of the inquest, the family applied to the Coroner for the inquest to be conducted as an investigation for the purposes of Article 2.  The application was rejected and the family applied for judicial review.  The boldest, not to say the most extreme, ground advanced was that all deaths in hospital potentially require an Article 2 investigation.  In the alternative, it was submitted that deaths in hospital which fall into the Coroner's jurisdiction (which amount to some 5% or so of all deaths in hospital) require such an investigation.  The judge did not agree.  He carefully reviewed the relevant Strasbourg case law and reached the following conclusions:

(i) Simple negligence in the care and treatment of a patient in hospital, resulting in the patient's death, is not sufficient in itself to amount to a breach of the State's positive obligation under Article 2 to protect life.
(ii) Nevertheless, where agents of the State potentially bear responsibility for the loss of life, the events should be subject to an effective investigation.  Potential responsibility for loss of life includes a potential liability in negligence.  Accordingly the need for an effective investigation is not limited to those cases where there is a potential breach of the positive obligation to protect life.
(iii) What an effective investigation here requires is the establishment of a framework of legal protection, including an effective judicial system for determining the cause of death and any liability on the part of the medical professionals involved.
(iv) The actual nature of an investigation required under Article 2 varies according to context.  In the case of deaths resulting from alleged medical negligence, even if the procedural obligation applies, the range of remedies available under the judicial system (criminal, civil and possibly disciplinary) can be sufficient to discharge it. 
(v) However, on the judge's analysis, there is no separate procedural obligation to investigate under Article 2 where a death in hospital raises no more than a potential liability in negligence.  It would only be in exceptional cases, where the circumstances give rise to the possibility of a breach of the State's positive obligation to protect life under Article 2, that the separate procedural obligation to investigate will arise and an inquest may have to perform the function of discharging that obligation.

See also: Pearson v HM Coroner for Inner London North [2005] EWHC 833

ix) Immigration, asylum and the terrorist threat

The European Roma Rights case [2005] 2 WLR 1

British immigration officers operated an entry clearance system at Prague Airport whereby only travellers who could satisfy officers they were travelling for a purpose within the immigration rules were granted leave to enter. Those, including asylum seekers, who failed to so satisfy officers were refused leave. Six Czech Roma denied leave to enter challenged the system as being discriminatory against Roma and a violation of the UK's international obligations towards refugees.

The House of Lords rejected the asylum argument on the grounds that there was no obligation in international law which required the UK to grant an individual leave to enter the UK in order to claim asylum when that individual has not even left his home country. The system did, however, discriminate against Roma in violation s.1 of the Race Relations Act 1976. The purpose of the system was to stem the flow of asylum seekers from the Czech Republic most of whom were Roma. There was evidence that Roma were subjected to longer and more intense questioning and had to provide more evidence to substantiate their claims. There was a high risk of stereotyping Roma seeking leave to enter the UK and assuming that they intended to seek asylum even if they informed the officers otherwise. In the absence of checks to guard against such stereotyping the system was discriminatory.   

A v Secretary of State for Home Department [2005] 1 WLR 414

The Special Immigrations Appeals Commission (SIAC) was called upon to review the detention of ten persons mostly of North African origin who were found to have links with various terrorist groups which had a connection with Al-Queda. In one case it was alleged that the Secretary of State had relied on evidence of a third party obtained through his torture in a foreign state. The Court of Appeal ruled that whilst there could be no reliance on a statement obtained by torture which was procured or connived at by the UK, evidence which "had or might have been obtained through torture by agencies of other states over which he (the Secretary of State) had no power", would be admissible if it was relevant.

R (Ullah and Do) v Special Adjudicator [2004] 2 AC 323

Miss Do was a citizen who entered the UK in 2000 and claimed asylum based on her fear of persecution as a practising Roman Catholic. Mr Ullah was a member of the Ahmadi faith which he claimed was persecuted in Pakistan. In appealing against the refusal of asylum both relied upon violation of their Article 9 rights. Whilst dismissing the appeals on their facts the Lords held that Strasbourg jurisprudence indicated that in a very strong case Articles other than Article 3 could have extraterritorial effect and so be engaged in relation to the removal of an individual from the UK where the anticipated treatment in the receiving state would be in breach of the Convention. In the case of a qualified right, it would have to be completely denied or nullified by the alleged breach. The facts in the instant cases fell far short of supporting such a claim.  

Secretary of State for Home Department v Limbuela [2004] EWCA Civ 540

Destitution resulting from the denial of assistance to asylum seekers could amount to inhuman and degrading treatment if the level of suffering was "verging on" the degree of severity described in Pretty v UK. Thus first instance decisions were upheld that the Home Secretary's approach to the obligation to provide support under s.55(5) of the Nationality, Immigration and Asylum Act 2002 had been wrong.

See also:R (Razgar) v Secretary of State for Home Department [2004] 2 AC 368; R (Zardasht) v Home Department [2004] EWHC 91; N (Kenya) v Home Department [2004] EWCA Civ 1094; B v Home Department [2005] EWCA Civ 61; R (Jegatheeswaran) v Home Department (2005).

x) Prisoners

R (Nilsen) -v- Governor of Full Sutton Prison [2005] 1 WLR 1028

Dennis Nilsen, sentenced to six life sentences for six murders, wanted to publish an autobiography detailing the murders and the horrific way in which he attempted to dispose of the bodies. His solicitor had taken the manuscript from the prison and attempted to return it to Nilsen for correction. The prison governor refused him permission to receive it relying on Paragraph 34(9)(c) of Prison Service Standing Order 5.

The Court of Appeal rejected the claim that this provision violated Article 10 and had been applied in a disproportionate way. In doing so it reiterated the principle that "a degree of restriction of the right of freedom of expression was a justifiable element in imprisonment not merely in order to accommodate the orderly running of a prison but as part of the penal objective of deprivation of liberty" (para 23). It also observed that "we do not believe that any penal system could readily contemplate a regime in which a rapist or murderer would be permitted to publish an article glorifying in the pleasure that his crime had caused him" (para 29).

R (Al-Hasan) -v- Secretary of State for the Home Department [2005] 1 WLR 688

The prison governor had ordered an intimate strip search of prisoners after dogs, trained in arms and explosive detection, gave positive indications in a classroom used by the prisoners. A and C refused to comply and were charged with disobeying a lawful order. At the disciplinary hearing their challenge to the lawfulness of the order failed. The hearing was conducted by the deputy governor who had been present when the governor approved the decision to require the prisoners to squat as part of the search.
The House of Lords upheld the claims of procedural unfairness stating that the test of bias was whether the fair-minded informed observer, having considered all the relevant facts, would conclude that there was a real possibility of bias.  

See also Hindawi (see above); Hirst v UK (App No. 75025/01)

II.  Applying the HRA:

i) The s.3 interpretive function

In Ghaidan v Godin-Mendoza, the House of Lords was divided over whether it was permissible to read the relevant provision in a Convention-complaint way so as to extend Rent Act protection to same-sex partners and thus eliminate its discriminatory effect.

In favour of the expansive/liberal approach, Lord Steyn argued that where incompatibility is identified, section 3 is the "principal remedial measure", whilst declarations under s.4 are a measure of last resort. The fact that many more s.4 declarations than section 3 interpretations have been made by the courts indicated, in his view, a misunderstanding of the Act. In his view the notion that "reading in" flouts the will of Parliament failed to acknowledge the will of Parliament as expressed in the HRA itself. Lord Millet maintained that the proposed reading gave the legislation an "impossible" meaning.

Compare In
Re S [2002] 2 AC 291 where the House of Lords held that the Court of Appeal had crossed the boundary into the territory of amendment by reading into the Children Act 1989 a power for the court to supervise the implementation of a care order when a fundamental feature of the Act was to relinquish this role to the local authority.

Similarly in A (Anderson) v Secretary of State for the Home Department [2003] 1 AC 837 Lord Bingham spoke [for the majority] when he stated that to interpret the [Act] so as to override an express power given to the Home Secretary in the legislation to release a prisoner would amount not to judicial interpretation but "judicial vandalism".

ii) Damages under HRA

R (Greenfield) v Home Office [2005] 2 WLR 240

A prisoner who failed a mandatory drugs test was charged and convicted under the Prison Rules 1999 and ordered to serve an additional 21 days imprisonment. The prisoner alleged that in being denied legal representation at the hearing before the deputy controller of the prison his right to a fair trial had been infringed. The Divisional Court and Court of Appeal dismissed the prisoner's appeal on the grounds that the offence was a prison disciplinary offence and not a criminal offence for the purposes of Article 6. Following a decision of the ECHR it was conceded that the proceedings did involve a criminal charge, the deputy controller was not an independent tribunal and the prisoner was wrongly denied legal representation.

On the prisoner's claim for damages, the Lords held that the approach of the ECHR that a finding that Article 6 had been violated was, in itself, just satisfaction should be followed and that there should be no award of damages to the prisoner.  Lord Bingham set out what should be the proper approach to the award of damages under the HRA.
(NB:
Anufrijeva v Southwark LBC [2004] 2 WLR 603: not followed in Greenfield; hearing of appeal awaited).

iii) Reach of the Convention/HRA

R (B and others) v Secretary of State for Foreign and Commonwealth Affairs [2005] 2 WLR 618

On their arrival in Australia from Afghanistan, the Claimant children sought asylum.  After some 18 months detention in Woomera Detention Centre they escaped and made for the British Consulate. On being informed that the UK would not grant them asylum they returned to the custody of the Australians but sought judicial review of the refusal to grant asylum alleging that it "exposed them to the risk that the Australian authorities would treat them in a manner inconsistent with their Article 3 and 5 rights under the ECHR". The Court of Appeal held that the HRA was capable of applying to the acts of consular officials. However, the risks alleged were insufficient to justify granting asylum and a refusal to hand over the claimants to the Australian authorities would breach the UK's obligations under public international law. Consequently there was no violation of the Convention.

III. Charter of Fundamental Rights

If the Member States of the European Union vote to adopt the Treaty Establishing a Constitution for Europe, with it will come the Charter of Fundamental Rights.

The Charter embraces new social and economic rights, such as the freedom to conduct a business and the right to strike. The Title dealing with equality also contains broadly worded prohibitions that go beyond the scope of Article 14 of the ECHR. Another notable feature is the Article 6 equivalent, which is not restricted to the determination of any criminal charge or dispute as to civil rights or obligations. Potentially, therefore, it could extend Article 6 protection to excluded areas such as immigration.

Like all EU legislation, the new Treaty will have primacy over the national laws of member states. Its focus is, however, "internal" - it is intended to apply to the institutions of the Union and areas in which member states apply Community law. 

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Related links

Author(s):

Marina Wheeler QC
Philip Havers QC

 

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