Category: Article 5 | Right to Liberty


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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Unlawful mental health detention – who is to blame?

20 January 2011 by

TTM (By his Litigation Friend TM) v London Borough of Hackney, East London NHS Foundation Trust; Secretary of State for Health –  Read judgment

The Court of Appeal has ruled that the local authority, but not the detaining hospital, was liable to pay compensation to a person who had been unlawfully detained under Section 3 of the Mental Health Act  1983.  The case provides important guidance on the liability of mental health and medical professionals in the difficult area of detaining patients, as well as the ability to recover damages where a claimant is unlawfully detained.

The Court held that the patient’s detention had been unlawful from the start when the approved mental health professional [‘AMHP’] erred in whether the patient’s relative objected to admission.  The local authority responsible for the AMHP could not rely on the Section 139(1)of the Mental Health Act 1983 [‘the Act’] statutory protection from civil liability, which had to be read down by virtue of Section 3 of the Human Rights Act 1998 to give effect to the patient’s right to liberty under Article 5 of the ECHR.

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Can release from hospital be a deprivation of liberty?

19 January 2011 by

Secretary of State for Justice v RB [2010] UKUT 454 – Read judgment

In a fascinating recent case, the Upper Tribunal has departed from a line of court authority to decide that where a patient has been detained under the Mental Health Act 1983, conditionally discharging that patient from hospital subject to conditions which might themselves amount to a form of detention is compatible with Article 5 of the European Convention of Human Rights, the right to liberty .

RB, who was aged 75, had been detained under the Mental Health Act on 30 June 1999 following a conviction for indecent assault on a boy aged under 16. He suffered from a persistent delusional disorder, which rendered him a “strongly misogynistic”, lifelong paedophile.

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Child detention: More smoke and mirrors

13 January 2011 by

R (on the application of) Reetha Suppiah and others v Secretary of State for the Home Department and Interveners [2011] EWHC 2 (Admin) – Read judgment

A high court judge has ruled that two asylum seekers and their children were unlawfully detained at Yarl’s Wood immigration centre last year.

This ruling will add fuel to the flames of the debate over whether the government is truly committed to ending the detention of children in immigration centres, or whether they intend merely to “minimise” it.

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Control orders: what are they and why do they matter?

6 January 2011 by

Updated | The government is soon to reveal the future of control orders, controversial anti-terrorism measure which have been repeatedly found by the courts to infringe human rights. But what are they? And why have they caused such trouble since they were introduced?

What are control orders?

Control orders are an anti-terrorism power which allows the secretary of state to impose strict conditions on a terrorist suspect (the ‘controlee’).

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Please release me

24 December 2010 by

Stellato v Ministry of Justice  [2010] EWCA Civ 1435 – Read judgment

The court of appeal has ruled that when a court set a deadline for a prisoner’s release, that deadline could was not lawfully extended simply because a court needed time to hear an appeal against the decision to release him.

In other words, prisoners must be released on time unless a court explicitly rules otherwise. Absent such a ruling, any additional time spent in custody waiting for a hearing will be unlawful detention and could trigger damages.

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Unjustified Delay in Parole Hearing Breached Prisoner’s Human Rights

21 December 2010 by

R (on the application of Daniel Faulkner) v Secretary of State for Justice and Anor [2010] EWCA Civ 1434 – Read Judgment

The Court of Appeal has upheld the appeal of prisoner who spent 10 more months in prison than he should have, due to unjustified delay in having his case heard by the Parole Board. The court found that there had been an infringement of his rights under Article 5(4) of the European Convention on Human Rights (ECHR).

In 2001 Daniel Faulkner was convicted of causing grievous bodily harm with intent (an offence under section 18 of the Offences Against the Person Act 1861). As this was his second offence of this nature, he was sentenced to custody for life, with the minimum period he had to spend in custody being set at two years, eight and a half months. That period expired on 18th April 2004 and he became eligible for parole.

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Detaining and deporting the mentally ill

26 October 2010 by

Anam v Secretary of State for the Home Department [2010] EWCA Civ 1140 – Read judgment

This appeal raises interesting questions about the approach the courts should take when considering whether detention pending deportation is legal in a case involving an ex-convict with serious psychiatric illness. A failure to implement a Home Office policy on the subject did not automatically make the decision to detain unlawful. However, the Court of Appeal was not unanimous on what the correct test for legality was.

This was an appeal against a deportation decision by the Secretary of State for the Home Department. The Appellant had a long criminal record and in 2007 was sentenced to 4 years in prison for robbery. Later that year, the deportation decision was made. However, the Appellant also had a history of serious psychiatric illness.

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Human rights and judicial review in the past year – Part 2/4: Articles 3 and 5

22 October 2010 by

This post is adapted from a presentation given at the Justice Human Rights Law Conference, and will be split into four parts. Part 1 can be found here.

Today I concentrate on Article 3: inhuman and degrading treatment (click here for previous posts on Article 3).

A range of cases – as ever, mostly arising in the context of immigration, extradition, and prisons – have been decided in the last year, but most are fact-specific, and few have given rise to particularly significant developments of principle.

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Pre-trial detention after expiry of the custody limit does not breach right to liberty

7 October 2010 by

Kevin O’Dowd v UK (application no. 7390/07) [2010] ECHR 1324 (21 September 2010)Read judgment

The European Court of Human Rights has ruled that a man’s pre-trial detention did not breach his right to liberty. Mr O’Dowd, who had a previous conviction for rape, was denied bail despite the maximum custody time limit having expired.

Kevin O’Dowd was charged with rape, false imprisonment and indecent assault in early December 2001. He had a prior conviction for rape which brought him within the provisions of Section 25 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) that bail should only be granted if there are exceptional circumstances justifying it.

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Increasing prison numbers could save money, says report

31 August 2010 by

A new report from the think-tank Civitas argues that increasing community sentences and cutting prison numbers will lead to more crime and add to costs too.

This is contrary to the the view of the Justice Secretary Ken Clarke, who has argued recently that there is no link between the rising level of imprisonment and falling crime.

The report, Prison, Community Sentencing and Crime, is by Ken Pease, a professor at the Manchester Business School and a former Home Office criminologist. It does not present any significant new research; rather, it seeks to put the other side of the debate on prison numbers, in light of the “apparently concerted attempt to justify an increasing use of community sanctions in place of custody for convicted criminals”.

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The ripple effect from Guantanamo Bay to the English courts

23 August 2010 by

Review: The Ripple Effect: Guantanamo Bay in the United Kingdom Courts” by CRG Murray, International Law Review Online Companion, April 2010 – Read article

A new academic article by C.R.G Murray at Newcastle University analyses the interesting and important line of case-law arising from claims by men detained in Guantanamo Bay. The case-law has involved many issues of a politically sensitive nature and generated much media coverage and pressure on the British Government. The ripple effects from the detentions have led to a series of important judgments.

Murray’s article reviews important case-law arising from detention at Guantanamo Bay and the impact it has had on the decisions reached by the courts. Murray concludes that the case-law demonstrates two major ‘ripple effects’: (1) judicial review has been used to press the British Government into being more active in opposing detentions at Guantanamo Bay; (2) where serious human rights breaches are in issue, the courts have been more willing to disregard historic concepts of comity between courts in different jurisdictions and give their own view of the correct interpretation of law for the benefit of appellate courts in the United States.

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Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs court of appeal Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability disclosure Discrimination disease divorce DNA domestic violence duty of candour duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal enforcement Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance football foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender genetics Germany Google Grenfell Health high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legality Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery monitoring music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries public law rehabilitation Reith Lectures Religion RightsInfo Right to assembly right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence sexual orientation Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine UK Supreme Court unduly harsh united nations USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
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