Search Results for: prisoners/page/58/[2001] EWCA Civ 1546
29 January 2014 by Rosalind English
Trafford v Blackpool Borough Council [2014] EWHC 85 – read judgment
The High Court has held that a local authority had abused its powers by refusing to offer a solicitor a new lease of the claimant’s office premises.
The claimant solicitor was aggrieved by the fact that the stated reason for the defendant’s refusal was that her firm had brought claims against the Council on behalf of clients seeking compensation for injuries alleged to have been caused by the negligence of the Council, predominantly in highways “tripping” type claims.
HHJ Davies held that the Council had exercised its “wide discretion” under Section 123 of the Local Government Act 1912 for an improper purpose and was “fundamentally tainted by illegality” on that basis. The Council’s refusal was both Wednesbury unreasonable and procedurally unfair.
Public versus private
The interesting question central to this case was whether or not a public body, acting under statutory powers in deciding whether or not to renew or terminate a contract, was acting under public law duties, and therefore amenable to judicial review, or whether the relationship between the claimant and the defendant was one governed exclusively by private law, where judicial review has no part to play .
Continue reading →
Like this:
Like Loading...
30 September 2010 by Rosalind English
J M v. The United Kingdom – 37060/06 [2010] ECHR 1361 – Read judgment
The European Court of Rights has declared that rules on child maintenance prior to introduction of the Civil Partnership Act discriminated against those in same-sex relationships.
The events happened nearly a decade ago and the law in relation to same-sex couples has greatly altered since, so it will be of limited relevance to those paying child benefit now. Of more interest is the reasoning of the majority in deciding the case under the right to peaceful enjoyment of property rather than the right to family life.
The case summary is based on the Court’s press release, and is followed by my comment.
Continue reading →
Like this:
Like Loading...
17 May 2010 by Adam Wagner
Moulton v Chief Constable of the West Midlands [2010] EWCA Civ 524 (13 May 2010) – Read judgment
The Court of Appeal has rejected an appeal by a man acquitted of rape as well as his argument that the law of malicious prosecution should be changed in order to bring it into line with Article 5 of the European Convention on Human Rights, the right to liberty.
In 2000, Kirk Moulton spent Christmas in jail due to administrative errors by the police. However, unlike in other jurisdictions it is not possible in England to sue the police for damages for negligence. Claims for ‘malicious prosecution’ are possible, but they are notoriously difficult to prove as the aggrieved person has to show the police acted with malice. Mr Moulton’s lawyers argued that the lack of a remedy for police maladministration meant that English law ran contrary to human rights law. But the court, whilst showing sympathy, rejected the argument. As a result the bar for claims against the police remains dauntingly high.
Continue reading →
Like this:
Like Loading...
26 May 2013 by Sarina Kidd
Welcome back to the UK Human Rights Roundup, your regular tasting menu of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
With an upcoming anniversary, the role of the Lord Chancellor (and, of course, his reforms) has been under scrutiny. Further, the new Defamation Act is looked at in more detail, civil liberties are abused and war crimes resurface in a number of ways. And, the gay marriage bill continues on its tumultuous journey to the House of Lords.
by Sarina Kidd
Continue reading →
Like this:
Like Loading...
21 December 2010 by Matthew Flinn
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.
Continue reading →
Like this:
Like Loading...
1 June 2010 by Rosalind English
Article 2| Right to life
Read posts on this Article
Art.2 European Convention on Human Rights provides as follows:
(1) Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
(2) Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is necessary:
(a) in defence of any person from unlawful violence.
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained.
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.
The corresponding provision in the EU Charter is also Art.2 which reads:
(1) Everyone has the right to life.
(2) No one shall be condemned to the death penalty, or executed.
The right to life is not absolute, although the limitation carved out in the first paragraph of the ECHR provision ceases to apply now that the UK has ratified Protocol 6, in pursuit of its undertaking so to do in the Human Rights Act 1998 , and the death sentence has been abolished altogether from the statute books. The UK cannot now reintroduce the death penalty in future, except for acts committed in time of war or imminent threat of war.
Art.2 is relevant to several aspects of State power:
- The use of lethal force by the State through the mobilisation of its police and armed forces to combat terrorism, fight crime and quell civil unrest;
- The prevention and prosecution of homicide
- Legislation relating to abortion; and
- The supply of medical services and the allocation of healthcare resources.
The right to respect for life, following the case of Diane Pretty v United Kingdom, does not include the right to die with dignity, although this element is considered in this context together with the right to physical integrity and privacy under Article 8. This extended implied right under Article 2 does not oblige the state however to enable a sufferer from severe mental bipolar disorder to obtain, without a prescription, a substance enabling him to end his life without pain and without risk of failure: Haas v Switzerland (2011).
While special duties are owed by the authorities to protect the lives of prisoners from harm, including suicide, the Court has observed that the measures imposed should take into account principles of dignity and self-determination, indicating that oppressive security measures may go too far. In Keenan v UK ECHR 2001, where the applicant’s son committed suicide in his cell, the Court found that the prison authorities were aware of his mental problems but had taken reasonable steps by placing him in prison hospital care and under close watch when he showed signs of suicidal tendencies. There had been no reason on the day of the incident for the authorities to suspect that an attempt was likely.
In addition to the express obligation on states to respect the right to life, the Strasbourg Court has developed an implied duty on states to investigate suspicious deaths or disappearances. Critics suggest that this maneouvre was motivated by the court’s desire to avoid having to delve into “complicated and murky factual assessments” in the proliferating case law involving Turkish violations of Kurdish rights:
Extending human rights to create additional procedural obligations on states served as a cost-efficient substitute for a lack of evidence to deal with a growing docket of cases. The court has legislated its way out of its own internal problems. (Dominic Raab, The Assault on Liberty, Fourth Estate, London 2009)
Be that as it may, the domestic courts have not been slow to respond to Strasbourg expansionist tendencies in the interpretation of Article 2. The right to life now engages the responsibility of the government for the deaths of soldiers in combat, whether they have been killed by enemy troops or illness if their demise is due to inadequate equipment or medical care (Smith v Secretary of State for Defence, [2010] UKSC 29).
Article 2 applies in countries where the Convention theoretically has no reach. In Al-Skeini v UK (2012) the Court said that the killing of Iraqi civilians by British troops during the British occupation of the Basra region fell within the United Kingdom’s jurisdiction because Her Majesty’s army was exercising authority and control there.
More recently however, the Divisional Court has strongly endorsed the doctrine of combat immunity and appeared to set its face against the recent rise in claims against the MoD by soldiers deployed abroad and their next of kin (R(Long) v Secretary of State for Defence [2015] EWCA Civ 770.
As far as the Strasbourg Court is concerned, there is no right to life that can be asserted in opposition to abortion; a foetus is not protected under Article 2. However, in Vo v France [2004] ECHR 326, (2005) 40 EHRR 12 , where the mother lost the foetus due to a mistake by a doctor, the Court considered that it was neither appropriate nor desirable to decide whether the unborn child was a person for the purposes of Article 2. In Calvelli and Ciglio v Italy, where the applicant complained that the state had failed to prosecute a doctor whose negligence allegedly caused the death of his baby, the Court held that the state’s positive obligation under Article 2 to protect life required regulations in place to safeguard patients’ lives and to provide an independent judicial system which can determine the cause of death of patients in the care of the medical profession. The provision of a civil remedy which could allocate responsibility and award damages fulfilled this obligation on the state.
The failure to provide an effective examination of the circumstances of the death of the applicant’s wife in childbirth disclosed a breach of Article 2: Bryzkowski v Poland, 27 June 2006.
Like this:
Like Loading...
1 July 2011 by Matthew Flinn
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”.
Continue reading →
Like this:
Like Loading...
9 June 2013 by Sarina Kidd
Welcome back to the UK Human Rights Roundup, your regular Royal Variety Show of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
This week, there was a flurry of comment and critique on the Ministry of Justice’s paper, ‘Transforming Legal Aid’, human rights abuses both past and present are in the spotlight and there have been some notable decisions from the courts.
by Sarina Kidd
Continue reading →
Like this:
Like Loading...
1 August 2011 by Lucy Series
Since BBC Panorama revealed shocking abuse of adults with learning disabilities in a private hospital run by Castlebeck Care Ltd, the care sector has engaged in widespread soul searching.
Paul Burstow instructed the Care Quality Commission (CQC) to carry out a national audit of all hospital services for adults with learning disabilities. Similar national audits were conducted following previous scandals relating to widespread abuse of adults with learning disabilities in Cornwall (here and here). In the CQC’s preliminary report on other Castlebeck services they expressed serious concerns about compliance with essential standards of quality and safety.
The human rights issue that stand out most powerfully in these reports is the widespread interference with patients’ autonomy and privacy. Take these finding from the report on Arden Vale, for instance:
Continue reading →
Like this:
Like Loading...
11 November 2012 by Sam Murrant
Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
The Rahmatullah Supreme Court judgment remained in the spotlight this week, but had to share it with old faces such as Abu Hamza (whose case has managed to keep outraging the public despite his extradition to the US), the loudly ticking clock of prisoner voting and the attendant debate over whether the UK should replace the Human Rights Act with a “British” human rights statute. Meanwhile, the ruling on whether Abu Qatada can be deported to Jordan is coming tomorrow (Monday).
Continue reading →
Like this:
Like Loading...
23 September 2013 by Daniel Isenberg
Welcome back to the UK Human Rights Roundup, your regular fruit salad of human rights news and views. The full list of links can be found here. You can find previous roundups here. Post by Daniel Isenberg, edited and links compiled by Adam Wagner.
Judge Peter Murphy’s ruling on the niqaab in criminal proceedings dominates this week’s commentary. Some interesting pieces also on immigration detention following the outcry about abuse at one facility; and conflict between the IPCC and Metropolitan Police about internal investigations…
Human Rights Awards and Tour: Liberty has opened nominations for their 2013 Liberty Human Rights Awards – all details here. Meanwhile, the British Institute on Human Rights’ free Human Rights Tour is now in full swing – full programme here.
Continue reading →
Like this:
Like Loading...
17 March 2013 by Sarina Kidd
Please welcome our new rounder upper, Sarina Kidd, a student on the GDL course at City University. Sarina joins Daniel Isenberg (our other rounder upper) and replaces Sam Murrant, who has moved on to pastures new after producing a fantastic run of human rights roundups. We wish him all the best and welcome Sarina on to the team – Adam Wagner
Welcome back to the UK Human Rights Roundup, your regular smorgasbord of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
In the News
The Human Rights Act and Strasbourg
The debate continues over the suggestion that a future Conservative government would repeal the Human Rights Act and withdraw from the European Convention.
Earlier this week Lady Hale, the UK’s most senior female judge, warned that her fellow judges would ‘regret’ a decision to repeal the HRA and that such a repeal would allow Parliament to pass laws incompatible with the ECHR.
Continue reading →
Like this:
Like Loading...
18 July 2017 by Martin Downs
EU Equality law had its moment in the sun in the week after London Pride with the UK Supreme Court Judgment in the case of Walker v Innospec – albeit that the front page treatment in The Metro was not exactly the same as that in The Telegraph.
Many commentators had feared that the ECJ decision in David Parris v Trinity College Dublin would be a problem but Professor Rob Wintemute argued in this Blog earlier this year that it could be distinguished – and he was proved right. He also had quite a big walk on role in Supreme Court Judgment (see below).
Continue reading →
Like this:
Like Loading...
28 February 2010 by Rosalind English
The Queen on the Application of MK(Iran) v Secretary of State for the Home Department
CA (Civ Div) (Sedley LJ, Carnwath LJ, Smith LJ) 25/2/2010 [2010] EWCA Civ 115
Directive 2004/83, which recognised the right to asylum as part of EU, did not alter the jurisprudence of the European Court of Human Rights that asylum decisions did not constitute determinations of civil rights under Article 6 of the Convention, and consequently a foreign national had no right under Convention law to claim for damages for the delay in processing his asylum application.
Like this:
Like Loading...
19 November 2015 by Leanne Woods
Judgments in best interests cases involving children often make for heart-wrenching reading. And so it was in Bolton NHS Foundation Trust v C (by her Children’s Guardian) [2015] EWHC 2920 (Fam), a case which considered Royal College of Paediatrics and Child Health guidance, affirming its approach was in conformity with Article 2 and Article 3 ECHR. It also described, in the clearest terms, the terrible challenges facing C’s treating clinicians and her parents.
Continue reading →
Like this:
Like Loading...
Trafford v Blackpool Borough Council [2014] EWHC 85 – read judgment
Recent comments