Category: Article 5 | Right to Liberty


Where in the world does the Human Rights Act apply?

1 July 2011 by

Smith & Ors v Ministry of Defence [2011] EWHC 1676 (QB) – Read judgment

Update, 20 June 2013: This decision has been reversed by the Supreme Court: Supreme Court gives the go ahead for negligence and human rights claims for British servicemen deaths in Iraq

The Human Rights Act applies in the UK. That much is clear. Whether it applies outside of UK territory is a whole other question, and one for which we may have a new answer when the Grand Chamber of the European Court of Human Rights gives judgment in the case of Al-Skeini and others v. the United Kingdom & Al-Jedda v. the United Kingdom next week.

The court is to give its long-awaited ruling at 10am (Strasbourg time) on Thursday 7 July. In short, the 7 applicants in the case were killed, allegedly killed or detained (Al-Jedda) by British forces in Iraq between 2003 and 2007. Both of the claims reached the House of Lords in the UK (now the Supreme Court), and in all but one case, which involved a death in a military detention centre, the court found that the Human Rights Act did not apply in Basra at the time, and therefore the UK military had no obligation to observe the requirements under the European Convention on Human Rights, and in particular article 2 (the right to life) and article 5 (right to liberty).

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Deportation, secrecy and knowing the case against you

1 July 2011 by

IR (Sri Lanka) & Ors v Secretary of State for the Home Department [2011] EWCA Civ 704 – Read Judgment

The Court of Appeal has rejected an argument that Article 8 of the European Convention of Rights (ECHR), the right to private and family life,  requires that those challenging deportation and exclusion decisions on grounds of national security in proceedings before the Special Immigration Appeals Commission (SIAC) have to be given sufficient disclosure of the case against them to enable them to effectively instruct the special advocate representing their interests.

In his book “The Rule of Law”, the late Lord Tom Bingham enumerated a number of sub-rules to give content to that cardinal, oft-cited but rather vague constitutional principle. Unsurprisingly, one such sub-rule was that adjudicative procedures provided by the state should be fair, an idea which found expression in documents as old Magna Carta. In turn, this entails that, as Lord Mustill stated in In re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593, “each party to a judicial process should have an opportunity to answer by evidence and argument any adverse material which the tribunal make take into account when forming its opinion”.

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A young autistic man, Magna Carta, human rights and unlawful detention

16 June 2011 by

Neary and his father

London Borough of Hillingdon v. Steven Neary [2011] EWHC 1377 (COP) – read judgment here.

The Court of Protection (“COP”) emphatically ruled last week that a local authority unlawfully detained a young man with autism and learning difficulties for almost an entire year, breaching his right to respect for family life as a result

Take a 21-year-old disabled person, the Mental Capacity Act 2005, a devoted father and an adversarial social care department. Mix in centuries-old principles laid down in Magna Carta, recent case-law on Article 5 and Article 8 of the ECHR, and some tireless campaigning by legal bloggers. The result? A landmark decision on the use of deprivation of liberty (“DOL”) authorisations in respect of individuals without full legal and mental capacity.

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Panorama at Winterbourne View: the human rights angle – Lucy Series

3 June 2011 by

I watched Panorama’s exposé of institutional abuse of adults with learning disabilities at Winterbourne View Hospital with mounting horror.    What legal mechanisms were available to prevent abuses like this, or bring  justice to victims?

There can be little doubt that the acts of the carers towards the patients were inhuman and degrading, a violation of their Article 3 rights.  It is highly questionable whether the establishment fulfilled their rights to privacy and dignity under Article 8, the right to private and family life.

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When detaining foreign criminals the rules are the rules, says Supreme Court

2 June 2011 by

Kambadzi v Secretary of State for the Home Department [2011] UKSC 23 – Read judgment

The Supreme Court has decided by a majority that a failure to review the detention of an immigration detainee, in accordance with immigration policy, meant that his detention was unlawful.

Immigration law always has the potential to be a political tinderbox, particularly in tough economic times when unemployment rates are high. Indeed, persistent governmental rhetoric about taking net migration “back to the levels of the 1990s” and “protecting the public” might seem to suggest that “tough on immigration” is the new “tough on crime”. The issues can be particularly acute in relation to foreign national prisoners (“FNPs”). This was demonstrated in 2006 when the Home Secretary Charles Clarke was urged to resign when it was discovered that about 1,000 FNPs had been released without being considered for deportation.

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Murder, toil and trouble – three new Supreme Court judgments

25 May 2011 by

The Supreme Court has delivered three judgments this morning, all of which are of interest from a human rights perspective. We will cover them in more detail soon, but for now, a brief summary. 

First, murder. In 2003 Nat Fraser was convicted of murdering his wife and sentenced to 25 years in prison. In Fraser (Appellant) v Her Majesty’s Advocate (Respondent) [2011] UKSC 24, the court unanimously decided to quash his conviction send back to a Scottish appeal court the question of whether a new prosecution should be brought.

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Another control order bites the dust

7 April 2011 by

BM v Secretary of State for the Home Department [2011] EWCA Civ 366 (05 April 2011) – Read judgment

Another control order has been ruled unlawful and quashed by the court of appeal, on the basis that the evidence relied upon to impose it was “too vague and speculative”.

Control orders are a controversial anti-terorrism instrument (see this post) which are soon to be replaced with Terrorism Prevention and Investigation Measures. These will impose less onerous restrictions upon a terrorist suspect. No doubt they will be approached by the courts at some stage. In the meantime, there are still 9 control orders in operation under the current regime. One has just been quashed by the court of appeal.

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Purpose, policy and publication: Analysis of Lumba ruling

30 March 2011 by

Lumba v Secretary of State for the Home Deparment – a case of driving government policy further underground?

We have already reported on this appeal by three foreign nationals who have served sentences of imprisonment in this country (“FNPs”). They were detained pursuant to Schedule 3 of the Immigration Act 1971 and their challenge to the legality of this detention was successful. But the appeal was secured by a majority of 3 with strong dissenting opinions which merit close consideration here.

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Secret foreign nationals detention policy was “serious abuse of power”

23 March 2011 by

Lumba (WL) v Secretary of State for the Home Department [2011] UKSC 12 (23 March 2011) – Read judgment / press summary

The Supreme Court has ruled that it was unlawful and a “serious abuse of power” for the Home Office to follow an unpublished policy on the detention of foreign national prisoners which contradicted its published policy.  Two convicted prisoners were therefore unlawfully detained.

This  fascinating 6-3 majority decision could be important in respect of setting the boundaries for the courts’ scrutiny of executive powers. It is also, for the record, not a decision which is based on human rights. The appellants are both convicted criminals (and foreigners too), so the court may be criticised for upholding their human rights despite their criminal actions. But this is a case decided on traditional public law grounds, which preceded the human rights act by many years. As Lord Hope put it:

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The right to know the case against you

14 March 2011 by

R (BB) v. Special Immigration Appeals Commission and Home SecretaryRead judgment.

The Divisional Court has ruled that bail proceedings before the Special Immigration Appeals Commission (“SIAC”) are subject to the same procedural standard under Article 5(4) of the European Convention (the right to liberty) whether they take place before or after the substantive judgment. That standard is that the applicant must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations, as set out in A v United Kingdom and R (Cart) v. SIAC.

This decision forms the latest in a string of cases considering the extent to which the Government can rely on secret or ‘closed’ evidence in defending appeals by individuals challenging decisions made against them. A judgment by the Supreme Court is imminently expected in the conjoined cases of Al-Rawi v. Security Service and Tariq v. Home Office (see helpful summary here and our analysis of the broader issue of open justice here), which consider this issue in relation to civil damages claims and employment law claims. However, BB is the High Court’s most recent pronouncement on the position in the fraught area of immigration and national security.


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Are we truly free?

3 March 2011 by

P and Q by the Official Solicitor, their Litigation Friend v Surrey County Council and Others (Equality and Human Rights Commission, Intervener) [2011] EWCA Civ 190- read judgment

What does it mean to be “deprived of liberty”? This is not an easy question, and there are a wide variety of relevant factors. For instance, the amount of space a person is free to roam in, the degree of supervision and the amount of time away from their main residence are matters which are likely to vary greatly from case to case. There are many borderline cases.

In an important recent case, the Court of Appeal has found that there was no deprivation of liberty, within the meaning of Article 5 of the European Convention on Human Rights, when two people with moderate to severe learning difficulties are cared for in a foster home and a specialist home for adolescents respectively.

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Football “rioter” Garry Mann loses Euro human rights appeal

23 February 2011 by

Garry Norman MANN v Portugual and the United Kingdom – 360/10 [2011] ECHR 337 (1 February 2011) – Read judgment

Garry Mann, a football fan who was convicted to two years in a Portuguese jail for rioting after an England match in 2004, has lost his appeal to the European Court of Human Rights against his conviction and extradition.

Mann has always denied taking part in the riot. The full background to the case is set out here. The case has been subject to a number of court hearings in the UK, including two judicial review hearings against his proposed extradition to Portugal to serve his prison sentence. He has also already had a claim in the European court rejected.

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Rights breach council must pay out

7 February 2011 by

G v E & Ors [2010] EWHC 3385 (Fam) (21 December 2010) – Read judgment

Manchester City Council has been ordered to pay the full legal costs of a 20-year-old man with severe learning disabilities who was unlawfully removed from his long-term foster carer. The council demonstrated a “blatant disregard” for mental health law.

The case has wound an interesting route through the courts, with hearings in the Court of Protection, Court of Appeal, and also a successful application by the Press Association to reveal the identity of the offending local council in the interests of transparency. In August, Siobhain Butterworth wrote that the decision to name and shame the council was a “good” one which “marries the need for transparency in the treatment of vulnerable people with the right to a private life“.

Now, Mr Justice Baker has taken the unusual step of ordering that Manchester City Council pay all of E’s family’s legal costs. The general rule in the Court of Protection is that costs should not be awarded, but as the judge ruled it can be broken in certain circumstances:

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Should people with low IQs be banned from sex?

3 February 2011 by

D Borough Council v AB [2011] EWHC 101 (COP) (28 January 2011) – Read judgment

In a case which is fascinating both legally and morally, a judge in the Court of Protection has ruled that a 41-year-old man with a mild learning disability did not have the mental capacity to consent to sex and should be prevented by a local council from doing so.

The case arose when a local council, following allegations that a mentally disabled man made sexual gestures towards children, sought a court order stating that “Alan” (a false name) did not have the mental capacity to consent to sexual relations. The council ultimately wanted Alan to be banned from having sexual relations with his former house-mate and sexual partner.

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Are we ready for gangbos?

1 February 2011 by

Police and local councils gained new powers yesterday to deal with gang-related violence and crime.

The new ‘gang injunctions’, or “gangbos”, which can be sought in the county courts against adults suspected of gang involvement, function in a similar way to ASBOs (anti-social behaviour orders), although they aim to target people involved in shootings, knife crime and other serious violence rather than low-level anti-social behaviour. But will they be a helpful measure to curb gang violence, or an unnecessary restriction on liberty?

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