Are trials without juries always illiberal?

24 May 2010 by Adam Wagner

Under threat?

The Coalition Government has pledged to “protect” the right to trial by jury. It is often assumed that the a jury is needed to ensure a fair trial, but Sir Louis Blom-Cooper argues in an interesting article in the Guardian that juries may not always be essential, particularly in cases involving serious organised crime.

Blom-Cooper, an academic and barrister, argues that jury-less trials need not always be illiberal. He says “The experience in Northern Ireland over three decades suggests that serious organised crimes can effectively and efficiently be tried before a professional court ‑ a single judge or perhaps three judges.” He also suggests that defendants ought to be able to waive their right to trial by jury as is the case in many other jurisdictions.
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Sanctity of life v personal autonomy: Court of Protection

3 January 2017 by Rosalind English

Briggs v Briggs & Ors [2016] EWCOP 53 (20 December 2016) – read judgment

Apologies for starting the new year on such a sombre note, but there is a shaft of light in that this Court of Protection judgement is a clear indication that judges – or some of them – are prepared to favour an individual’s autonomy over the traditional emphasis on the sanctity of life above all else.

As Charles J points out, this case raises issues of life and death and so vitally important principles and strongly held views. The decision he had to make was whether a part of the current treatment of Mr Paul Briggs, namely clinically assisted nutrition and hydration (CANH), should be continued. Mr Briggs was in a minimally conscious state (MCS) as the result of serious and permanent brain damage he suffered as the victim of a traffic accident eighteen months ago. He was not in a permanent vegetative state (PVS) and so the approach taken by the House of Lords in the Tony Bland case did not apply to him (Airedale NHS Trust v Bland [1993] AC 789). In that case, it will be remembered, their Lordships concluded that the continuation of life in such a state was futile. Problems arose with subsequent advancements in neurological diagnosis, where a less catastrophic condition known as MCS was established. In 2012 a court ruled that a patient in MCS could not be deemed to have made an advance directive regarding medical treatment even though during her lifetime she had made her position very clear that she would not want to continue living in such a reduced state (Re M (Adult Patient) (Minimally Conscious State: Withdrawal of Treatment) [2012] 1 WLR 1653). Her views did not, in their view, encapsulate the state of MCS. See my post on that decision here. Baker J’s refusal of the family’s application to allow treatment to be withdrawn came in for severe criticism in the British Medical Journal (see Richard Mumford’s post on that article). The author took Baker J to task for not according significant weight to the informally expressed views of M on life-sustaining treatment, expressed before she came ill. Charles J took a very different approach in this case.
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Right to die case allowed to proceed

13 April 2017 by Rosalind English

Conway, R(on the application of) v The Secretary of State for Justice[2017] EWCA Civ 275

The Court of Appeal has overturned the refusal of the Divisional Court to allow a motor neurone disease sufferer to challenge section (1) of the Suicide Act. He may now proceed to seek a declaration under section 4(2) of the Human Rights Act 1998 that the ban on assisted dying is incompatible with the European Convention on Human Rights. The background to this appeal can be found in my post on the decision from the court below, which focussed on the vigorous dissent by Charles J.

Briefly, Mr Conway wishes to enlist the assistance of a medical profession to bring about his death in a peaceful and dignified way at a time while he retains the capacity to make the decision. His family respect his decision and choices and wish to support him in every way they can, but his wife states she would be extremely concerned about travelling to Switzerland with Mr Conway so he can receive assistance from Dignitas.

The main argument in support of the permission to appeal was that it was self-evident from the division of opinion in the Divisional Court that there would be a realistic prospect of success. Mr Conway’s legal team also argued that the issues raised about Mr Conway and those in a similar position to him were of general public importance and that this was a compelling reason for the appeal to be heard.
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Judges once again avoid right to die issue

2 April 2017 by Rosalind English

Conway, R (on the application of) v Secretary of State for Justice [2017] EWHC 640 – read judgment

Noel Douglas Conway, 67, is a victim of motor neurone disease. He has just been refused permission to seek judicial review of the criminalisation of physician-assisted suicide under the Suicide Act 1961. The High Court considered that Parliament has recently examined the issue following the Supreme Court decision in the 2014 Nicklinson case , and two out of three judges concluded that it would be “institutionally inappropriate” for a court to declare that s.2(1) of the Suicide Act  was incompatible with the right to privacy and autonomy under Article 8 of the ECHR. Charles J dissented (and those who are interested in his opinion might want to look at his ruling last year in the case of a minimally conscious patient).

Background facts and law

The claimant, whose condition worsens by the day, wishes to enlist the assistance of a medical professional or professionals to bring about his peaceful and dignified death. But Section 2(1) of the Suicide Act criminalises those who provide such assistance. The question of whether someone would be prosecuted for assisting suicide is governed by a detailed policy promulgated by the Director of Public Prosecutions. That policy was formulated in 2010 in response to the decision in R. (on the application of Purdy) v DPP [2009] UKHL 45, and was refined in 2014 following the decision of the Supreme Court in Nicklinson. A similar declaration of incompatibility had been sought in Nicklinson, but by a majority of seven to two the court refused to make the declaration on the grounds that it was not “institutionally appropriate” to do so. The court, however, encouraged Parliament to reconsider the issue of assisted dying.

In the instant case, the court had to determine whether the circumstances which led the Supreme Court to refuse to grant the declaration in Nicklinson had changed so that a different outcome was now possible.

The Court concluded – with an interesting dissent from Charles J – that  this was a matter for parliament.  A declaration of incompatibility would be institutionally inappropriate in the light of the recent Parliamentary consideration of Nicklinson. The claim was unarguable and permission was refused.

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The extraterritorial application of the EU Charter in Syria: To the Union and Beyond? – Michael Rhimes

10 March 2017 by Guest Contributor

1) The Situation

“no one leaves home unless

home is the mouth of a shark

you only run for the border

when you see the whole city running as well”

• Warsan Shire

Shire’s words are the background to the recent case of C-638/16 X and X. So much was recognized by Advocate General Mengozzi, who concluded his Opinion as follows:

“175. Before concluding, allow me to draw your attention to how much the whole world, in particular here in Europe, was outraged and profoundly moved to see, two years ago, the lifeless body of the young boy Alan, washed up on a beach, after his family had attempted, by means of smugglers and an overcrowded makeshift vessel full of Syrian refugees, to reach, via Turkey, the Greek island of Kos. Of the four family members, only his father survived the capsizing. It is commendable and salutary to be outraged. In the present case, the Court nevertheless has the opportunity to go further, as I invite it to, by enshrining the legal access route to international protection which stems from Article 25(1)(a) of the Visa Code. Make no mistake: it is not because emotion dictates this, but because EU law demands it.”
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Sir Cliff v BBC: A new era for police investigations? — Patricia Londono

19 July 2018 by Guest Contributor

Photograph: Neil Mockford/GC Images, the Guardian

Sir Cliff’s case against the BBC (Sir Cliff Richard OBE v (1) The British Broadcasting Corporation (2) Chief Constable of South Yorkshire Police ) following the raid on his home in August 2014 was billed as of  “enormous importance” in relation to whether the media are able to identify a suspect pre-charge, as well as having “massive implications” for the reporting of early phases of police investigations.  The first trial of its kind in this country, this article considers the ramifications of this High Court decision on the press reporting of those subject to police investigation.

On the morning of the 14 August 2014, the Berkshire home of Sir Cliff Richard was searched by South Yorkshire Police (‘SYP’) in connection with allegations of historic child sexual abuse.  The BBC broadcast the search more or less as it was taking place, giving it extensive coverage, including aerial shots by helicopter. The story was then picked up by other news media extending its coverage both in this country and aboard. Sir Cliff was not in the UK while his home was searched but viewed the broadcast.  He was subsequently questioned about the allegations but was neither arrested or charged and was told in 2016 that he was no longer under investigation.

At the heart of Sir Cliff’s claim was a challenge to media organisations in the reporting about those named by police as being subject to investigation for serious criminal offences.  In the face of increasing concern about the public naming of suspects questioned about historic sex offences, the Home Affairs Select Committee had recommended that those accused of such offences should be entitled to anonymity up to the point of charge (HC 962, Pre-Charge Bail, Seventeenth Report of Session 2014-15).

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Protocol 1 Article 1

1 June 2010 by Adam Wagner

Protocol 1 Article 1 | Right to peaceful enjoyment of property

Read posts on this Article

Protocol 1 Art.1 of the European Convention on Human Rights provides:

(1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
(2) The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

The European Court of Human Rights has indicated that this Article contains three distinct rules ((1) Sporrong (2) Lonnroth v Sweden (1982) 5 EHRR 85):

(1) The general principle of peaceful enjoyment of property (first sentence of the first paragraph);
(2) The rule that any deprivation of possessions should be subject to certain conditions (second sentence, first paragraph);
(3) The principle that States are entitled to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose (second paragraph).

Peaceful enjoyment of possessions include the right of property (Marckx v Belgium (1979) 2 EHRR 330). “Possessions” are not limited to physical goods: in Gasus Dosier-und Fordertechnik GmbH v The Netherlands (1995) 20 EHRR 403 it was considered immaterial that the property in issue was fully owned by the applicant, or whether it simply had a security right in it (retention of title). But to qualify under this Article the right or interest must have an economic value, or be of a pecuniary nature. In addition to property, possessions include:

1. Company shares: Bramelid & Malmstrom v Sweden, (1982) 29 DR 64.
2. Patents: Smith Kline and French Laboratories Ltd v The Netherlands (1990) 66 DR 70;
3. Goodwill in business: Van Marle & Ors v The Netherlands (1986) 8 EHRR 483;
4. Licence to serve alcoholic beverages: Tre Traktorer Aktiebolag v Sweden (1989) 13 EHRR 309;
5. Ownership of a debt (where it has crystallised): Agneesens v Belgium (1998) 58 DR 63;
6. An award, of court or arbitration, which is final and enforceable with no right of appeal on the merits: (1) Stran Greek Refineries (2) Stratis Andreadis v Greece (1994) 19 EHRR 293 and Pressos Compania Naviera SA & 25 Ors v Belgium (1997) 21 EHRR 301;
7. Interests in a pension scheme Wessels-Begervoet v The Netherlands (1986) (Admissibility Decision Application No. 00034462/97  October 10 2000

An additional gloss has been given to the meaning of “possessions” under this Article by the Court of Appeal in Wilson v First Country Trust [2001] 3 WLR 42 2000 – these include the rights of a leader to enforce a regulated loan agreement under the Consumer Credit Act 1974.

More recently, the Supreme Court has ruled that pension scheme regulations in Northern Ireland that required that unmarried co-habiting partners to be nominated in order to be eligible for a survivor’s pension, was interference with the appellant’s right under this provision. The requirement could not be “objectively justified” for the purposes of art 14. There was no similar nomination requirement for married or civil partner survivors (Re an application by Brewster for Judicial Review (Northern Ireland) [2017] UKSC 8).

There is no possession in an item where the link between the applicant’s payment and the ultimate value of the thing is not established, so where an applicant has made contributions to a social security scheme but there is no link between the contributions and the ultimate share claimed by the applicant, this does not come within the scope of Protocol 1 Art.1 (G v Austria (1984) 38 DR 84); the same applies to contributions to pension schemes: (see X v Netherlands (1972) 38 CD 9.)

Expectation of an inheritance could not constitute a possession under Protocol 1 Art.1 : Marckx v Belgium (1979) 2 EHRR 330.

A mere expectation that rates of fees would not be reduced by the law does not constitute a property right: Federal Republic of Germany Application No.00008410/78, (1979) 18 DR 170. Here the applicants, who were notaries, challenged regulations which obliged them to reduce fees for certain public bodies such as universities. The European Commission of Human Rights held that the claim for fees would only be considered as possessions when they came into existence on grounds of services rendered and on the basis of existing regulations.

In Matthews v MoD [2002] 3 All ER the Court of Appeal accepted that a right of action in tort was a possession.

As with the other qualified rights, most of the disputes in Article 1 Protocol 1 claims turn on the test of proportionality since the right to enjoyment of property is subject to many provisos and exceptions “in the public interest”. As a result the case law on A1P1 is a rich source of analysis on this question: see for example the Court of Appeal’s informative ruling in Sinclair Collis Ltd, R (o.t.a) v. The Secretary of State for Health [2011] EWCA Civ 437 and Lord Laws LJ’s important dissent, discussed here.

• Return to Incorporated Rights Index
• Introduction to the Human Rights Act 1998

Safeguards for suspects and accused persons in criminal proceedings in the EU – Jodie Blackstock

24 August 2021 by Guest Contributor

The UK’s exit from the European Union raises many questions for continuing cross-border arrangements and the legal proceedings that follow. This is no less the case in the area of police and judicial cooperation. The Trade and Cooperation Agreement (TCA) has governed all arrangements since January 2021. Since people accused of crime will continue to travel, what does this mean for an individual’s ability to challenge requests from EU member states to UK authorities? These arguments are well known in the UK: how can we return people to Poland for prosecution of such minor misdemeanours as dessert theft? Should we be returning people to Lithuania given the appalling prison conditions?

Part 3 TCA introduced a new “surrender” arrangement with the EU to replace the European Arrest Warrant (EAW). It also replaced the other measures that in 2014 the UK concluded were necessary for law enforcement when it exercised the Protocol 36 to the Lisbon Treaty option to depart from police and judicial cooperation in criminal matters, and then opted back into 35. Alongside the EAW, these included the European investigation order, supervision order, instrument on transfer of prisoners and various others. These measures resulted from the mutual recognition project that sought to make law enforcement speedier and more effective. Part 3 TCA now provides for cooperation with Europol and Eurojust, operational information exchange and mutual assistance. 

Right of appeal against refusal of a residence card: the conclusion

10 September 2019 by Jonathan Metzer

The question of whether non-married partners and wider dependent relatives (e.g. grown-up children) of EEA nationals (known as ‘extended family members’) have a right of appeal against a decision by the Home Secretary to refuse them a residence card under the EEA Regulations has had a fraught recent history.

Now, as a result of the final decision of the Upper Tribunal in Banger (EEA: EFM – Right of Appeal) [2019] UKUT 194(IAC), full appeal rights have been restored to ‘extended family members’ whose applications are refused.

Schooled on tax and Human Rights: Government successful in private schools VAT challenge

18 June 2025 by Rosalind English

In ALR and others v Chancellor of the Exchequer [2025] EWHC 1467 (Admin), the High Court has dismissed a challenge against the government’s manifesto policy of adding VAT to private school fees. The claimants were a group of students, parents, and schools. Some of the students required specific schooling because of (inter alia) special educational needs and religious convictions; all claimants sought a declaration that the VAT addition was incompatible with the European Convention of Human Rights. Specifically, they argued that imposing VAT was incompatible with Article 2 Protocol 1 (right to education) and 14 (protection from discrimination).

This dismissal of the judicial review challenge represents a significant ruling on the interplay between fiscal policy, human rights law and the allocation of resources for education.

Seizure of passport actionable in law

9 June 2011 by Rosalind English

Atapattu, R. (On the Application of) v The Secretary of State for the Home Department [2011] EWHC 1388 (Admin) – read judgment

1 Crown Office Row’s John Joliffe appeared for the Secretary of State the Home Department in this case. He is not the writer of this post.

This case on the wrongful retention of the passport of a Sri Lankan national raises some interesting questions about the scope of the duty  owed by the Home Office’s agents when exercising their powers of entry clearance under the Immigration Act 1971.

The question in this case was whether the claimant, who had applied for a United Kingdom student visa, could sue the Secretary of State for the Home Department for damages for conversion under the Torts (Interference with Goods) Act 1977. There were other submissions, that the withholding of the passport breached his rights under the European Convention on Human Rights 1950 and that the Secretary of State was liable to him in negligence.
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All by myself: segregation, prisons and Article 6

30 March 2012 by Isabel McArdle

Bourgass and others v Secretary of State for Justice [2012] EWCA Civ 376 Read decision

The ability to interact with other prisoners is a major part of prison life, and not one many prisoners would give up willingly. But there are circumstances where prisoners have to be segregated from the rest of the prison population, such as where they are posing a violent threat to another prisoner or planning an escape. The Court of Appeal has recently looked into the question of how decisions to segregate are made, including the initial decision, the review of the decision and ultimately judicial review, in a human rights context.

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Student fee protests and human rights protections

9 December 2010 by Alasdair Henderson

Today MPs will vote on whether to increase the maximum amount universities can charge to £9,000. Contrary to many commentators’ predictions, the student protests against the increase on 10 November have not been an isolated occurrence, but the beginning of a settled campaign. But would the students be able to rely on human rights arguments to resist eviction?

The campaign has been quite literally settled in many cases, as students at (amongst other universities) UCL, SOAS, Oxford, Sheffield, Manchester Met and Newcastle have staged occupations and sit-ins. Some have moved out, but others have occupied lecture theatres since around 24 November and don’t seem to be moving anywhere any time soon. That is, unless the police or university authorities force them out.

The right to protest is covered by Article 11 of the European Convention on Human Rights, which provides that:

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Genetic testing of children up for adoption

27 April 2013 by Rosalind English

Y and Z (Children), 25 April 2013 [2013] EWHC 953 (Fam) – read judgment

Having children is a lottery. No judge or court in the land would sanction the regulation of childbearing, however feckless  the parents, unsuitable the conditions for childrearing, or unpromising the genetic inheritance.

Adoption on the other hand is stringently regulated, set about with obstacles for prospective parents, and strictly scrutinised by an army of authorities backed up by specialist family courts and a battery of laws, statutory instruments and guidance papers. Usually the filtering is in one direction only: the suitability of the parents to the child or children up for adoption. But sometimes it goes the other way, and this case raises the fascinating and somewhat futuristic question of whether children’s chance of finding a suitable home might be increased by genetic testing.

The circumstances were somewhat exceptional here, since the local authority had ascertained from the biological father  of the two young boys in question that they might have a chance of inheriting a rare genetic disorder of the central nervous system. Huntington’s Chorea is caused by a single gene mutation on chromosome IV and causes damage of the nerve cells and areas of the brain which in due course leads to severe physical, mental and emotional deterioration. Anyone whose parent has the disease is born with a fifty per cent chance of inheriting the gene. Anyone who inherits the gene will, at some stage, develop the disease. 
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Human right to education a “weak right”?

7 July 2010 by Adam Wagner

A recent Supreme Court decision has reopened a debate on whether it can properly be said that there is a human right to education under the European Convention on Human Rights.

We posted last week on the decision in the Norther Ireland matter of JR17, where The Supreme Court found that there was no breach of a pupil’s right to education where he was unlawfully suspended from school but was provided with work to do and home tutoring.

Today Aidan O’Neil QC, writing on the UK Supreme Court Blog, provides an interesting analysis of the European case-law on the right to education. He also points out that the right to education exists as a protocol (effectively an appendix) rather than in the main body of the European Convention as “no consensus could initially be reached about the recognition of these claims as being fundamental rights.”

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