‘Limbs in the Loch’ killer wins Article 8 claim

Beggs v Scottish Ministers [2015] CSOH 98, 21st July 2015 – read judgment

The Court of Session’s first instance chamber – the Outer House – has held that the way in which the Scottish Prison Service (SPS) handled a prisoner’s correspondence breached Article 8 of the European Convention on Human Rights.

The petitioner, William Beggs, was a prisoner at HMP Glenochil until March 2013 and thereafter at HMP Edinburgh. In 2001 he was sentenced to life imprisonment for the 1999 murder of 18 year-old Barry Wallace, whose dismembered body parts Beggs disposed of in Loch Lomond. Continue reading

Court of Session upholds sexual offences notification regime

Main v Scottish Ministers [2015] CSIH 41, 22nd May 2015 – read judgment

The Court of Session’s appeal chamber – the Inner House – has had to decide whether the scheme of indefinite notification requirements for sexual offenders in Scotland is compatible with Article 8 of the European Convention on Human Rights.

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Passive smoking in prison not a breach of human rights – Court of Appeal

Cigarette_smokeSmith, R (on the application of v Secretary of State for Justice and G4S UK Ltd  [2014] EWCA Civ 380 – read judgment

This case raises the question of whether it is a breach of a non-smoking prisoner’s Convention right to respect for his private life and to equality of access to such rights (ECHR Articles 8 and 14) to compel him to share a cell with a smoker.

The appellant, a convicted sex offender serving a long sentence, was required between 21st and 28th March 2012 to share a cell with a fellow prisoner who was a smoker. It was known to the prison authorities that the appellant was a non-smoker, and the requirement to share with a smoker was contrary to his wishes. The sharing complained of ended when the appellant was transferred to another prison on 28th March 2012.

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Court of Appeal calls on Supreme Court to resolve conflict between UK and Strasbourg law

Strasbourg_ECHR-300x297Kaiyam v Secretary of State for Justice and Haney v Secretary of State for Justice (9 December 2013) [2013] EWCA Civ 1587 – read judgment

The Court of Appeal has ruled that continued detention in prison following the expiry of the “minimum terms” or “tariff periods” of their indeterminate terms of imprisonment did not breach prisoners’ Convention or common law rights, but has left it to the Supreme Court to determine the substance of the Convention claims in detail.

The appellant prisoners claimed that their continued detention breached the Article 5, and in one case Article 14.  The courts at first instance had been  obliged to dismiss the claims under Article 5 in the light of the House of Lords decision in  R(James and others) v Secretary of State for Justice [2009] UKHL 22[2010] 1 AC 553, notwithstanding that Strasbourg subsequently held in James, Wells and Lee v United Kingdom that the House of Lords decision was wrong. Continue reading

Guidance from the Supreme Court on human rights damages

prison2aFaulkner, R (on the application of ) v  Secretary of State for Justice and another [2013] UKSC 23 – read judgment

The Supreme Court has taken a fresh look at what is meant by the Human Rights Act exhortation to take Strasbourg jurisprudence “into account” when fashioning remedies for violations of Convention rights, in this case the right not to be arbitrarily detained under Article 5.

These appeals concerned the circumstances in which a prisoner serving a life sentence or an indeterminate sentence of imprisonment for public protection (“IPP”), who has served the minimum period specified for the purposes of retribution and deterrence (the “tariff”), and whose further detention is justified only if it is necessary for the protection of the public, should be awarded damages for delay in reviewing the need for further detention following the expiry of the tariff.

Appellate courts do not ordinarily interfere with an award of damages simply because they would have awarded a different figure if they had tried the case. However, as the Supreme Court was being asked in this case to give guidance on quantum, the Court determined the level of the award that would adequately compensate the appellants. Continue reading

Shouting is a lawful interrogation technique, says High Court

10_03-the-smoking-compartment--the-interrogation-room-1Ali Hussein v Secretary of State for Defence [2013] EWHC 95 (Admin) – read judgment

Collins J has dismissed a claim that the MOD’s policy of allowing interrogators to shout at a captured person in order to obtain information is unlawfully oppressive. Not only did the complaint fail but it was denounced as “misconceived” and one which should never have been pursued.


 British armed services have two policies for questioning captured persons (CPERS) who are believed to possess valuable information which may protect the lives of other members of the forces or civilians, for example the location of roadside bombs. Continue reading

Courts should take note of Strasboug’s doctrine of deference

R(on the application of S and KF) v Secretary of State for Justice [2012] EWHC 1810 (Admin)- read judgment

This case about prisoner’s pay provides an interesting up to date analysis of the role of the doctrine of “margin of appreciation” and its applicability in domestic courts.

Margin of appreciation is a doctrine of an international court: it recognises a certain distance of judgment between the Strasbourg court’s overall apprehension of the Convention principles and their application in practice by the national authorities. In theory it has no application in domestic disputes but ever since the Human Rights Act introduced Convention rights into domestic law there has been an ongoing debate about its applicability at a local level. This case demonstrates the importance of its role in the assessment, by the courts, of the compatibility of laws and rules with Convention rights.

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