The Jersey Law Review - February 2002
THE HUMAN RIGHTS ACT 1998 - A YEAR ON[1]
Michael Beloff QC
Introduction
The Human Rights Act 1998 ("HRA") celebrated the first anniversary of its coming into force on October 2nd, 2001. The Human Rights (Jersey) Law 2000 ("HRJL") is due to come into effect early in 2002. The two year gap between its enactment and the HRA's operation reflected a perceived desire to ensure that public authorities, which were the chief, if not the only, objects of the Act's obligations, made themselves as far as possible convention compliant,[2] and that the judiciary, the HRA's constitutional enforcement agency, acquired sufficient familiarity with the text and its implications, equally to adjust their performance to give substance to its imperatives. Jersey appears to have adopted the same approach.
Commentators were apt to describe in advance the incorporation via the HRA of the European Convention on Human Rights ("the Convention") as the most significant change in the substantive law administered by the courts of England and Wales, since the European Communities Act 1972 achieved a similar incorporation of the Treaty of Rome, its successors and derivatives ("EU law").[3] The major difference, of course, was that whereas EU law, in areas where it was directly effective, trumped inconsistent domestic law, even that embodied in statutes, Convention law would influence domestic law's interpretation but was unable to override it. EU law was paint; Convention law dye. On the other hand EU law operated in more limited areas than Convention law; it had more depth, but less breadth.
The purpose of this article is to seek to assess how far the hopes or fears of the transforming effect of the HRA have been realised in practice. Even before its enactment, let alone its coming into force, the Convention was a practical instrument in the hands of the English judiciary. It was used as an aid to construction of ambiguous primary and secondary legislation; to resolve uncertainty or to fill gaps or to buttress the principles of the common law; as a measuring rod to judge its efficacy, to determine the way in which judicial - and where the empowering Act was passed in response to a Strasbourg ruling - administrative discretion was exercised.[4] And in the phoney war between enactment and operation there were signs of some judicial impatience; attention was being paid to the Convention as if it were already (which indisputably it was not) part of English law.[5]
There was, of course, some experience on which to draw from north of the border. As with the poll tax the Westminster Parliament had chosen to introduce into Scotland a measure ultimately destined for Great Britain and Northern Ireland as a whole. Since the Scotland Act 1998 came into force in 1999, the provisions of the HRA have applied to the Scottish executive and Scottish Parliament in relation to their respective functions. Up to March 1st 2000, 374 complaints alleging violation of the Convention had been heard by Scottish courts, of which 10 had been upheld. An early survey concluded –
"A shift in the balance of power from the elected branches of government to the judiciary in human rights issues can already be discerned in both political and legal terms".[6]
While it has been said that the need to give the HRA its full import means that well-entrenched ideas may have to yield,[7] previous authority (even at appellate level) may no longer be binding[8], and points which were previously wholly unarguable may now be irresistibly strong,[9] a more modest assessment of the actual impact south of the border has been made extra curially by the Lord Chief Justice -
"The walls have not come tumbling down with numerous successful court challenges under the Act ... If anything we have had a quiet revolution, where public bodies have modified their practices to adapt to a new legal culture".[10]
Lord Steyn has said -
"one is reminded of the unfounded predictions that the 1998 Act would cause chaos in our legal system. A healthy scepticism ought to be observed about practised predictions of an avalanche of dire consequences likely to flow from any new development. ...."[11]
The emerging themes
Several themes can already be detected.
First, the ingredients of the approach of the courts of England and Wales have been fashioned with great rapidity. The fact that the judicial system contemplates a three stage process - first instance hearing, Court of Appeal, House of Lords - might have led to the conclusion that few, if any, cases would have reached the Supreme Court.
On the contrary there have been many cases of major importance determined at the highest level.[12]
Secondly, the decisions themselves have been relatively conservative. The touchstone case is that of the Privy Council in Brown, where the Board detected a balance inherent in the whole Convention, even where (as in the fair trial guarantees) the basic right was not (as in the free speech guarantees) qualified by a series of express exceptions.
Lord Bingham of Cornhill said -
"The convention is an international treaty by which the contracting states mutually undertake to secure to all within their respective jurisdictions certain rights and freedoms. The fundamental nature of these rights and freedoms is clear, not only from the full title and the content of the convention but from its preamble in which the signatory governments declared:
‘... their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend...’
Judicial recognition and assertion of the human rights defined in the convention is not a substitute for the processes of democratic government but a complement to them. While a national court does not accord the margin of appreciation recognised by the European Court as a supra-national court, it will give weight to the decisions of a representative legislature and a democratic government within the discretionary area of judgment accorded to those bodies. The convention is concerned with rights and freedoms which are of real importance in a modern democracy governed by the rule of law. ‘It does not, as is sometimes mistakenly thought, offer relief from "The heart-ache and the thousand natural shocks That flesh is heir to.’
In interpreting the convention, as any other treaty, it is generally to be assumed that the parties have included the terms which they wished to include and on which they were able to agree, omitting other terms which they did not wish to include or on which they were not able to agree. Thus particular regard must be had and reliance placed upon the express terms of the convention, which define the rights and freedoms which the contracting parties have undertaken to secure. This does not mean that nothing can be implied into the convention. The language of the convention is for the most part so general that some implication of terms is necessary, and the case law of the European Court shows that the court has been willing to imply terms into the convention when it was judged necessary or plainly right to do so. But the process of implication is one to be carried out with caution, if the risk is to be averted that the contracting parties may, by judicial interpretation, become bound by obligations which they did not expressly accept and might not have been willing to accept.
The general language of the convention could have led to the formulation of hard-edged and inflexible statements of principle from which no departure could be sanctioned whatever the background or the circumstances. But this approach has been consistently eschewed by the court throughout its history. The case law shows that the court has paid very close attention to the facts of particular cases coming before it, giving effect to factual differences and recognising differences of degree. Ex facto oritur jus. The court has also recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, the search for which balance has been described as inherent in the whole of the convention."[13]
To the same effect Sir Andrew Morritt VC said in Aston Cantlow PCC v Wallbank[14] -
"Our task is not to cast around in the European Human Rights Reports like blackletter lawyers seeking clues. In the light of s 2(1) of the 1998 Act it is to draw out the broad principles which animate the convention. These, in our view, include a requirement that the legitimate aim of taxation in the public interest must be pursued by means which are not completely arbitrary or out of all proportion to their purpose."
And in Spear Laws LJ said[15] -
"The principles of article 6 are of vital importance in the constitutional advance in our law which the Human Rights Act 1998 represents. But to find those principles unfulfilled upon facts where, on a proper consideration of all the material, they can only be found wanting if the court adopts an undue formalism - or even something approaching a neurotic distrust - would be gravely damaging: to the objectivity of the law in general, and to the values of the Human Rights Act in particular."
In striking the relevant balance, different judges naturally weight rights and responsibilities differently. In a powerful passage in Gough v Chief Constable of Devonshire,[16] Laws LJ said -
"It is inherent, then, in any principled approach to rights enjoyed by the individual under the general law that the right’s very justification, and its consistency with the state's sound fabric, critically depend upon its being subject to limits imposed to protect the public interest to protect compendiously the rights of others.".[17]
By contrast, in R (K) v Camden and Islington Health Authority[18], Sedley LJ said -
"Parliament's intention was, of course, that the Human Rights Act itself should constitute the United Kingdom's compliance with Article 13 but this makes it if anything more important that the courts, as part of the State, should satisfy themselves so far as possible that the common law affords adequate control, in conformity with Article 13, of the legality of official measures which interfere with personal autonomy."[19] -
Thirdly, some courts have continued to detect in the common law a sensitivity to human rights which had previously escaped the eyes of many, and would, if characteristic of the entire judiciary, have made the Convention and HRA, matters of machinery apart, almost superfluous.
Lord Cooke of Thorndon said in Daly[20] -
"First, while this case has arisen in a jurisdiction where the . . . Convention . . . applies, and while the case is one in which the convention and the common law produce the same result, it is of great importance, in my opinion, that the common law by itself is being recognised as a sufficient source of the fundamental right to confidential communication with a legal adviser for the purpose of obtaining legal advice. Thus the decision may prove to be in point in common law jurisdictions not affected by the convention. Rights similar to those in the convention are of course to be found in constitutional documents and other formal affirmations of rights elsewhere. The truth is, I think, that some rights are inherent and fundamental to democratic civilised society. Conventions, constitutions, bills of rights and the like respond by recognising rather than creating them.
Laws LJ has drawn a picture of the Convention and common law jurisprudence on human rights being in a state of harmony not tension, not least because of the respect that each paid to the facts of particular cases:
"the objective substance and weight of rights which the common law gave were not at all lessened or weakened because like quicksilver, their shape moved to fit the place where they lay".[21]
And in MM ISL v LSE[22] Mr Justice Neuberger said[23] -
“while there will no doubt be exceptions, it seems to me that it will be a rare case where the Convention and the common law conflict. Bearing in mind the base of the common law, the way in which it has developed over the centuries, and the continuing ability of the court to adapt with the passage of time, it would be surprising if it were otherwise.”
Fourthly, there has been a parallel effort to align Strasbourg with Strand interpretation of the Convention: although under HRA, section 2(1), the English Courts need only ‘take account of’ (and are not bound by the Strasbourg jurisprudence) they tend to pay great attention to it. Indeed did they not do so their decisions would be vulnerable to reversal by the European Court of Human Rights, and far from domesticating not only the Convention, but the resolution of disputes arising under it, they would have provoked further litigation.
In Alconbury Lord Slynn said[24] -
"Your Lordships have been referred to many decisions of the European Court of Human Rights on article 6 of the Convention. Although the Human Rights Act 1998 does not provide that a national court is bound by these decisions it is obliged to take account of them so far as they are relevant. In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights. If it does not do so there is at least a possibility that the case will go to that court, which is likely in the ordinary case to follow its own constant jurisprudence."
This rationale for the dictum does not subsist in those instances where domestic judges may be in advance of the Strasbourg court in sensitivity to human rights.[25]
Fifthly, the absence in the domestic sphere of any equivalent to the margin of appreciation has been more significant in theory than in practice. The Courts recognised even within Convention territory that there is an area of discretionary judgment within which the executive can operate without risk, although it is wider where issues of economic or social policy are involved than where the rights said to be infringed are of high constitutional importance.[26]
Sixthly, after initial hesitation,[27] the House of Lords blocked off retrospective application of the HRA[28] other than in the circumstances specifically envisaged in s.22(4) of proceedings "brought by or at the instigation of a public authority",[29] despite the vigorous dissent of Lord Steyn[30] who said that for Appellate Courts to quash convictions whenever obtained in breach of convention rights involved no retrospectivity at all. Lord Hope summarised the position thus"In general it was from the date of the coming into force of the 1998 Act that the rights were intended to be brought home".[31] Lambert was upheld in Kansal[32] where, bizarrely, the majority (3-2) thought Lambert wrongly decided, but by 4-1 thought that fidelity to precedent compelled perpetuation of error.[33] This rejection of retrospectivity embraced the interpretative obligation under s.3: after the coming into force of the HRA the courts must apply it to the legislation whenever enacted: but they cannot apply it retrospectively to decisions of courts prior to that date.[34]
Seventhly, however, relianceon the HRA has led to radical methods of interpretation. The rule of compatible construction (in section 3) ("so far as it is possible to do so") is a strong and significant test,[35] more potent than the traditional common law rule of using treaty obligations to resolve ambiguities in domestic legislation, or even the principle of legality denying Parliament the right to override fundamental freedoms by general words. It can require the Court to adopt a construction, which is not the obvious, natural, literal or purposive meaning of the words used there[36] but expresses them in different and strained language.[37]
In R v A Lord Steyn said[38] -
"Rightly none of the counsel appearing before the House were prepared to argue that on ordinary methods of interpretation section 41(3)(c) can be interpreted to cover, for example, cases similar to the one before the House where it is alleged that there was a previous sexual experience between the complainant and the accused on several occasions during a three week period before the occasion in question."
................
"On the other hand, the interpretative obligation under section 3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings. It is an emphatic adjuration by the legislature: . . . . The White Paper made clear that the obligation goes far beyond the rule which enabled the courts to take the Convention into account in resolving any ambiguity in a legislative provision: see Rights Brought Home: The Human Rights Bill (1997) (Cm 3782), para 2.7. The draftsman of the Act had before him the slightly weaker model in section 6 of the New Zealand Bill of Rights Act 1990 but preferred stronger language. Parliament specifically rejected the legislative model of requiring a reasonable interpretation. Section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights. Under ordinary methods of interpretation a court may depart from the language of the statute to avoid absurd consequences: section 3 goes much further. Undoubtedly, a court must always look for a contextual and purposive interpretation: section 3 is more radical in its effect. It is a general principle of the interpretation of legal instruments that the text is the primary source of interpretation: other sources are subordinate to it: compare, for example, articles 31 to 33 of the Vienna Convention on the Law of Treaties (1980) (Cmnd 7964). Section 3 qualifies this general principle because it requires a court to find an interpretation compatible with Convention rights if it is possible to do so. In accordance with the will of Parliament as reflected in section 3 it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions. A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so. If a clear limitation on Convention rights is stated in terms, such an impossibility will arise: There is, however, no limitation of such a nature in the present case."[39]
Eighthly, in HRA cases English courts will henceforth apply the proportionality principle, not the Wednesbury principle - a test which will often, if not always, involve stricter judicial scrutiny of executive decisions than prevailed even under the pre- HRA "anxious scrutiny" test; although review will remain review, not appeal.[40]
In Daly Lord Steyn set out in what will become a classic text of the distinctions between the traditional ground of review and the proportionality test.
Clearly, these criteria are more precise and more sophisticated than the traditional grounds of review. What is the difference for the disposal of concrete cases? Academic public lawyers have in remarkably similar terms elucidated the difference between the traditional grounds of review and the proportionality approach.[41] The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach. Making due allowance for important structural differences between various convention rights, which I do not propose to discuss, a few generalisations are perhaps permissible. I would mention three concrete differences without suggesting that my statement is exhaustive. (1) The doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. (2) The proportionality test may go further than the traditional grounds of review in as much as it may require attention to be directed to the relative weight accorded to interests and considerations. (3) Even the heightened scrutiny test developed in R v Ministry of Defence, ex p Smith,[42]is not necessarily appropriate to the protection of human rights. It will be recalled that in Smith the Court of Appeal reluctantly felt compelled to reject a limitation on homosexuals in the army. The challenge based on article 8 of the Convention (the right to respect for private and family life) foundered on the threshold required even by the anxious scrutiny test. The European Court of Human Rights came to the opposite conclusion: Smith and Grady v United Kingdom.[43] The court concluded, at p 543, para 138, -
"the threshold at which the High Court and the Court of Appeal could find the Ministry of Defence policy irrational was placed so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants' rights answered a pressing social need or was proportionate to the national security and public order aims pursued, principles which lie at the heart of the court's analysis of complaints under article 8 of the Convention."
In other words, the intensity of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued.
The difference in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results. It is therefore important that cases involving Convention rights must be analysed in the correct way. This does not mean that there has been a shift to merits review. On the contrary, as Professor Jowell[44] has pointed out the respective roles of judges and administrators are fundamentally distinct and will remain so. To this extent the general tenor of the observations in Mahmood[45]are correct. And Laws LJ rightly emphasised in Mahmood, at p 847, para 18, “that the intensity of review in a public law case will depend on the subject matter in hand.” That is so even in cases involving Convention rights. In law context is everything.”[46]
In determining whether a decision might so contravene fundamental human rights as to make it unreasonable, the decision-maker had to consider whether interference with the rights was a serious or real possibility.[47]
Ninthly, the HRA has been used to spur thedevelopment of the common law both in the articulation of private rights and of public obligations -
As to the former in Douglas[48] Sedley LJ said –
"We have reached a point where English law will recognise, and, where appropriate, protect a right of personal privacy,..."[49]
As to the latter in Daly Lord Cooke said –
"And I think that the day will come when it will be more widely recognised that the Wednesbury case was an unfortunately retrogressive decision in English administrative law, in so far as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation. The depth of judicial review and the deference due to administrative discretion vary with the subject matter. It may well be, however, that the law can never be satisfied in any administrative field merely by a finding that the decision under review is not capricious or absurd."[50]
Quantitatively, if not qualitatively, the topics which have generated greatest scrutiny are fair trial[51], freedom of expression,[52] and property rights.[53]
Many notable cases have resulted in failure by those seeking to rely upon the HRA -
"Statistical evidence has shown that between the incorporation of the Convention on October 2nd, 2000 until January 2nd, 2001 19.3% of all appeals raised human rights’ points but in the vast majority of these cases those points failed. In a recent survey for the Home Office of 109 cases raising human rights points analysed between October 2nd, 2000 to March 12th, 2001 only 15 such claims were upheld, that is less than 14%.”[54]
Mandatory life sentences for murder were compatible with the Convention.[55] A reverse burden of proof was not necessarily incompatible with Convention rights as violating the presumption of innocence.[56] An analogous section in the Misuse of Drugs Act was read down as imposing an evidential burden only.[57] The exercise of powers under section 172 of the Road Traffic Act 1998 to compel information on pain of criminal penalty as to the identity of a driver did not breach the right to protection against self incrimination.[58] Prejudice is the key to whether there has been a violation of the defendant's right to determination of a charge within reasonable time.[59]
A deportation order which could separate the deportee from his British born wife and her child was held not to violate the right to respect for family life. A fortiori where the deportee was a drug trafficker.[60] It was legitimate for a state to have an immigration policy[61] and the enforcement of immigration control which involved the removal of a child settled in a good school in England after her parents’ application to remain had been rejected is not a breach of her right to education[62]; nor indeed is such right interfered with by refusal of a discretionary grant for a residential dance school.[63] A university student with British nationality born and brought up in Hong Kong was not discriminated against in being classified as an overseas and not a home student for the purposes of determining his level of liability for university fees.[64] Exclusion from a school did not involve determination of a civil right.[65]
The general system relating to vexatious litigants complies with the Convention.[66]
The HRA does not require changes to the procedure governing detention for breach of bail conditions,[67] nor an investigation into the deliberations of a jury,[68] nor take away the court’s power to hear evidence by live television link and to receive in evidence a video recorded interview with a child as a child’s evidence in the proceedings,[69] nor to consider an ex parte application by the Crown to withhold relevant evidence on the ground of public interest immunity,[70]nor oblige the police to provide arrested persons with ideal conditions for consultation with their solicitors when the arrested persons had not, in fact, been denied adequate facilities for the preparation of their defence nor legal assistance.[71] The Convention in short is about the minimum good, not the maximum best.
Efforts to apply the enhanced standards of due process to proceedings leading to sanctions which were, e.g., not criminal in the classic sense have foundered. Anti-social behaviour orders were held outwith that sphere;[72] likewise disciplinary penalties imposed by City regulators.[73] Fixing a tax penalty is a criminal procedure for Article 6 purposes;[74] however since the state was entitled for the purpose of collecting income tax to require a citizen to inform it of his income and to enforce penalties for failure to do so, a notice under section 21 of the Tax Management Act 1970 requiring the information could not constitute a violation of the right against self-incrimination under Article 6 of the Convention.[75]
A secure accommodation order was a deprivation of liberty but justified on welfare grounds.[76] It has been variously held that a prisoner is properly deprived both of the right to vote[77] and of the right artificially to inseminate his wife.[78]
The ban on the wearing of earrings in the playground could not be said to amount to religious or philosophical conviction within the meaning of Article 2 of the First Protocol of the Convention;[79] (whether or not it could violate freedom of expression was not raised). Restriction on the freedom of expression of members of the security services was justified.[80] The right to freedom of association includes the right of a society to exclude from membership persons whom a society thought in good faith was likely to damage its objectives.[81] The random monitoring of telephone calls of dangerous mental patients was permissible notwithstanding its interference with their right to privacy.[82] So too was the use of telephone intercepts at a criminal trial.[83] Nor is intercept evidence per se or necessarily inadmissible because unlawfully obtained.[84]
The discontinuance of artificial feeding of patients in a permanent vegetative state is not an infringement of the right to life.[85] The right to life itself did not convey the right to die.[86] A surgical operation to separate Siamese twins calculated to kill one and save the other did not lawfully violate the former's right to life.[87] The record to date may support the aphorism of Poole J. in Havering[88] "commentary, though often valuable, can be venturesome as well".[89]
On the other side of the ledger, is the seminal judgment in R v Togher.[90] In that case it was held that where a defendant had been denied a fair trial through non-disclosure of prosecution material, it was 'almost inevitable' that the resulting conviction would be unsafe. Lord Woolf CJ, held that -
"Now that the European Convention is part of our domestic law, it would be most unfortunate if the approach identified by the ECHR and the approach of this Court continued to differ unless this is inevitable because of provisions contained in this country's legislation or the state of our case law.
As a matter of first principles, we do not consider that either the use of the word 'unsafe' in the legislation or the previous cases compel an approach which does not correspond with that of the ECHR. The requirement of fairness in the criminal process has always been a common law tenet of the greatest importance. The common law approach has been enhanced by legislation and in particular, the Police and Criminal Evidence Act 1984 and the codes of practice made thereunder (sections 66 and 67). Fairness in both jurisdictions is not an abstract concept. Fairness is not concerned with technicalities. If a defendant has not had a fair trial and as a result of that injustice has occurred, it would be extremely unsatisfactory if the powers of this Court were not wide enough to rectify that injustice. If, contrary to our expectations, that has not previously been the position, then it seems to us that this is a defect in our procedures which is now capable of rectification under section 3 of the Human Rights Act 1998 ('the 1998 Act'). The 1998 Act requires primary legislation and subordinate legislation to be read and given effect to in a way which is compatible with Convention rights. Section 6(1) of the 1998 Act makes it unlawful for a public authority to act in a way which is incompatible with a Convention right and a court is a public authority for the purposes of section 6 (section 6(3)). The 1998 Act emphasises the desirability of taking a broader rather than a narrower approach as to what constitutes an unsafe conviction. In R v Davis, Rowe and Johnson, this Court acknowledged that there could still be a distinction between its approach and the approach of the ECHR. However, in the later case of R v Francom, this Court indicated, in a judgment which I gave on behalf of the Court, that we would expect, in the situation being considered, that the approach of this Court applying the test of lack of safety would produce the same result as the approach of the ECHR applying the test of lack of fairness. We would suggest that, even if there was previously a difference of approach, that since the 1998 Act came into force, the circumstances in which there will be room for a different result before this Court and before the ECHR because of unfairness based on the respective tests we employ will be rare indeed. . . . we consider that if a defendant has been denied a fair trial it will almost be inevitable that the conviction will be regarded as unsafe."
As Lord Woolf CJ thus indicated, the approach in the foregoing passage had been foreshadowed in R v Francom.[91] There, he had said that in such a case he would –
"expect this court to be approaching the issue of lack of safety in exactly the same way as the ECHR approaches lack of fairness."
The question asked by the court was –
"whether the omission of the required direction by the judge has in fact achieved unfairness, focusing on the importance of the right to silence, or impaired the safety of the conviction, in the process not drawing any distinction between the two tests".
And the court said "this approach not only means there must not be a lack of safety, it also means there must be no unfairness because the non-direction or misdirection must not affect the defendants' right to a fair trial."
Lord Woolf CJ's approach received further support in Brown[92] where Lord Bingham stated that "If the trial as a whole is judged to be unfair, a conviction cannot stand" and Lord Steyn said that –
"it is a grave conclusion that a defendant has not had the substance of a fair trial. It means that the administration of justice has entirely failed. Subject to the possible exercise of a power to order a retrial where appropriate such a conviction can never be allowed to stand."[93]
This robust stance was in contrast to the far more cautious approach taken in R v Davis,[94] where the court acknowledged that there could well be a distinction between its approach and the approach of the European Court of Human Rights. Indeed the court agreed with the Crown's submission that in finding a breach of article 6, the European Court does not express any opinion on whether a conviction is unsafe in domestic law; the [English] court recognised only that the two concepts were connected and that a finding of unfairness would have an impact on safety, the extent of which, however, depended upon all the circumstances of the case and upon the nature and degree of the unfairness. Likewise in Condron v UK[95](where the applicants were held to have been denied a fair trial because of the direction to the jury about the adverse inference which could be drawn from the applicant's silence), the Court commented as follows –
'65. The Court must also have regard to the fact that the Court of Appeal was concerned with the safety of the applicants' conviction, not whether they had in the circumstances received a fair trial. In the Court's opinion, the question whether or not the rights of the defence guaranteed to an accused under article 6 of the Convention were secured in any given case cannot be assimilated to a finding that his conviction was safe in the absence of any enquiry into the issue of fairness."
The developing jurisprudence of the courts in England and Wales is summarised in a decision of the Court of Appeal, Civil Division, in Hamilton v Al Fayed -
"Recent decisions of the Criminal Division of this Court indicate that in certain circumstances procedural unfairness can render a jury's verdict liable to be quashed as 'unsafe,' even where the guilt of the accused is not open to doubt."[96]
The better view may be that the issues of fair trial on the one hand and safety of conviction on the other are discrete - the former is concerned with procedure, the latter with result - but the former must always be considered in the context of the latter, and will usually be decisive as to its resolution.
Nor has it been in the sphere of criminal law alone that the HRA has left its imprint. Fining lorry drivers who carry illegal immigrants was unfair.[97] A public utility's failure to carry out works to bring to an end the repeated flooding of a private property violated with the homeowner's rights to respect for his private and family life and since it did not intend to carry out the works necessary to remedy the problem, the homeowner should have just satisfaction by means of an award of damages at once.[98] In a substantial variant on the same theme of family life, two serving women prisoners challenged the Prison Service's policy in relation to Mother and Baby Units, which required all babies to be taken away from their mothers in prison by the age of 18 months. The Court of Appeal held that whilst the Prison Service was entitled to have a policy of the kind under challenge, it must not operate in a rigid fashion, disregarding e.g. the effects of separation in the case of a particular child, the quality of the alternative placement available for the child, and the attractions of combining day care outside prison.[99]
Liability for chancel repairs imposed by the Parochial Church Court was held to be a tax which operated arbitrarily, violated the complainant's right to the peaceful enjoyment of his own property and was also discriminatory.[100] In another case with a Trollopian background, a widow was held entitled to remove the ashes of her husband (which had been wrongly interred in a consecrated plot in error following a humanist funeral) by reference to principles of freedom of thought, conscience and religion.[101]
The sale of names on an electoral register list is a breach of privacy.[102] But the decision to hold the Shipman inquiry in private interfered with the freedom of expression.[103] The same right received endorsement when, while ruling that journalists did not have to hand over certain papers relating to the Shayler case, Judge LJ commented –
"inconvenient or embarrassing revelations whether for the security services or for public authorities should not be suppressed."[104]
An application for a hearing before a Mental Health Review Tribunal by a compulsorily detained patient must be heard as soon as reasonably practicable given the circumstances of the case. The practice of routinely listing applications for hearing eight weeks after the date of application was a breach of the rights to liberty and security (Article 5). It was a practice "bred of administrative convenience, not administrative necessity."[105]
But these are early days. In Kansal[106]Lord Hope said -
"The development of our jurisprudence on the (HRA) has only just begun. New problems are being revealed every week, if not every day".
Key unanswered questions include -
the extent to which the HRA has horizontal effect(s) and applies between private parties[107]
what constitutes a public authority,[108]
(as potential defendants), what is a victim (as potential complainant)?[109]
Human rights of course cost money, to paraphrase Damon Runyon on "there's no such thing as a free law".[110] It will be for the citizens of states where the Convention has become the law of the land to judge whether the price was right.[111]
APPENDIX A
| HRA | Subject-matter | HRJL |
| Section 1 | Convention rights | Article 2 |
| Section 2 | Interpretation of Convention Rights | Article 3 |
| Section 3 | Interpretation of legislation | Article 4 |
| Section 4 | Declaration of incompatibility | Article 5 |
| Section 5 | Rights of intervention – Crown Attorney-General | Article 6 |
| Section 6 | Public Authorities | Article 7 (NB: the States assembly is not a public authority but is brought into the scheme of the Law in respect of its power to make subordinate legislation and its compulsory purchase powers. (other administrative powers can be added by the States). Parliament is outside the scope of the UK Act completely. The position of the states is reflected in the provision on proceedings for alleged breach of Convention rights in Article 8 of the Law. |
| Section 7 | Proceedings | Article 8 |
| Section 8 | Judicial Remedies | Article 9 |
| Section 9 | Judicial Acts | Article 10 (3) - Unlike section 9 (3) of the HRA, HRJL does not include a reference to a judicial act done in good faith, in the phrase defining the ambit of claims for damages in respect of judicial acts. |
| Section 10 | (Public to take remedial action after declaration of incompatibility). | HRJL has no provision equivalent to section 10 of the HRA. Incompatible principal legislation will have to be amended in the usual way. |
| Section 11 | Safeguard for Existing Human Rights | Article 11 |
| Section 12 | Freedom of expression | Article 12 |
| Section 13 | Freedom of Thought; Religion Conscience | Article 13 |
| Section 14 | Derogations | Article 14 |
| Section 15 | Reservations | Article 15 |
| Section 16 | Period for which designated derogations have effect | Derogations and reservations - there are necessary differences in the way these are treated in HRJL, from the way they are treated in the HRA in view of Jersey's constitutional position (see Articles 1(1), 14 and 15). |
| Section 17 | Periodic Review of Designated Reservation | Ditto |
| Section 18 | Appointment to European Court of Human Rights | There is no equivalent in the HRJL. |
| Section 19 | Statements of Compatibility | |
| Section 20 | Rules and Orders made under the Act | Article 17 |
| Section 21 | Interpretation etc. | Article 1 (NB: definition of principal legislation. This includes Acts of the UK parliament which apply to the Island directly, Orders in Council extending Acts to the Island and triennial Regulations, though the last of these, even though made by the States does not have to have a statement of compatibility under Article 16.) |
| Section 22 | Commencement etc. | Article 18 (3) is materially different from section 22(4) of the HRA. It applies Article 8(1)(b) of the Law only to proceedings brought by a public authority after commencement. |
APPENDIX B
(Scheduled Convention Rights in HRA (Schedule 1)
and HRJL (Schedule 1)
| Article 2 | Right to life |
| Article 3 | Prohibition of torture |
| Article 4 | Prohibition of slavery and Forced labour |
| Article 5 | Right to liberty and security |
| Article 6 | Right to a fair trial |
| Article 7 | No punishment without the law |
| Article 8 | Right to respect for private and family life |
| Article 9 | Freedom of thought, conscience and religion |
| Article 10 | Freedom of expression |
| Article 11 | Freedom of assembly and association |
| Article 12 | Right to marry |
| Article 14 | Prohibition of discrimination |
| Article 16 | Restrictions on political Activity of aliens |
| Article 17 | Prohibition of abuse of rights |
| Article 18 | Limitation on use of restriction on rights |
| Article 1 of First Protocol | Protection of property |
| Article 2 of First Protocol | Right to education |
| Article 1 of Sixth Protocol | Abolition of double penalty |
| Article 2 of Sixth Protocol | Double penalty in time of war |
The Honourable Michael Beloff QC is a judge of the Courts of Appeal of Jersey and Guernsey; he is president of Trinity College, Oxford; a bencher of Gray’s Inn; deputy chairman of the Data Protection (National Security) Tribunal; member of the Court of Arbitration for Sport; emeritus chairman, Administrative Law Bar Association; and a member of Blackstone Chambers, the Temple, London.
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[1] I must thank Mark de Pulford (Home Office Human Rights Unit) and Michael Fordham for their help in providing material for this article, and Helen Mountfield for giving me inspiration for it.
[2] For example, (i) in the light of Article 6 (right to a fair trial), the Lord Chancellor's Department reviewed its policy regarding the giving of reasons for decisions in magistrates' courts. Reasons are now given. (ii) As a result of section 19 of the HRA, all government Bills are now accompanied by a ministerial statement about their compatibility with the Convention rights following detailed examination within Government of the impact of the policies on human rights. [HRJL under Article 16 does not apply to triennial regulations even though made by the States]. (iii) A new Committee of peers and MPs is also advising parliament about human rights’ implications and issues, ensuring that peoples' human rights are fully taken into account (ibid). (iv) In the period when public authorities were preparing for the coming into force of the HRA, the British Medical Association revised their guidelines on "do not resuscitate" notices regarding the need to consult the patient and nearest of kin: The HRA incorporates the right to life (Article 2) which contains positive duties on public authorities to safeguard the right.
[3] I myself predicted a "momentous impact", and quoted celebrated judges in support: M.J. Beloff QC "What does it all mean?", the Lasok Lecture (1998) in L. Betten (ed), The Human Rights Act 1998 (M. Nijhoff: 1999) at p.2. See generally "The Impact of the Human Rights Act 1998 on English Law" ed. Markesinis: Clarendon Press 1998. [A list of relevant articles can be found in Bamforth: Significant Academic Articles of 2000 ("Bamforth") 2001 Judicial Review ("JR") p.183.] There are various emphatic judicial statements that the HRA reflects a constitutional shift, Redmond-Bate v Director of Public Prosecutions July 23rd, 1999 unrep. (Sedley LJ) to a new era Venables v News Group Newspapers Ltd [2001] 2 WLR 1038 at [100] ("Venables"), has introduced a rights-based culture R (on the application of P and Q) v Secretary of State for the Home Department [2001] EWCA Civ 1151 ("P and Q") The Times August 1st, 2001 at [56] (Lord Phillips MR), and is a constitutional measure akin to a Bill of Rights. McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 AC 277, 297G (Lord Steyn).
[4] M J Beloff QC and Helen Mountfield. "Unconventional Behaviour: Judicial Uses of the European Convention in England and Wales" 1996 EHRLR 467. M. Hunt, Using Human Rights law in English Courts: (1997) pp. 28-37 191-206. cf: David Doyle, Human Rights in the Isle of Man: The Administrative and Judicial Discretion Debate: Amicus Curiae 2001 Issue 3 p.3) R v DPP ex p. Manning [2001] 1 QB 330 (DPP's obligations to give reasons for not prosecuting). For more recent examples, see R v Governor of Brockhill Prison ex p. Evans No.2 [2001] 2 AC: (HL) (false imprisonment); the maiden speech in the House of Lords of Lord Bingham of Cornhill LCJ, HL Hansard: 3.07.96: cols 1465-6 lucidly summarises the then status quo ante.
[5] See examples quoted in M J Beloff QC "Judges and Politicians - a Shift in the Balance of Power". Boxmind Lecture Series. (2001) the www.times.co.uk/e-lectures e.g. R v North and East Devon Health Authority ex p. Coughlan [2001] 2 QB 213 at 254.
[6] Gavin W Anderson, "Using Human Rights Law in Scottish Courts" [2000] 25 E.L.Rev. Human Rights Survey. Gerry Moynihan QC, "Human Rights in Scotland: The Story So Far" 2000 JR 274. The Privy Council has jurisdiction where devolution issues are involved: Hockstra v HM Law Advocate [2001] 1 AC 216; Follen v HM Law Advocate [2001] 1 WLR 1668.
[7] Lord Slynn said "It is clear that the 1998 Act must be given its full import and long or well entrenched ideas may have to be put aside, sacred cows "culled". R v Lambert [2001] UKHL 37; [2001] 3 WLR 206 ('Lambert') at [6].
[8] R (on the application of K) v Camden and Islington Health Authority [2001] EWCA Civ 240; [2001] 3 WLR 553 at [19] (Lord Phillips MR); Lambert (above) at [81] (Lord Hope).
[9] P and Q (above), including at [56].
[10] Lord Woolf, LCJ: Speech in Beijing, July 2001. There are various counterintuitive judicial statements not always in complete harmony with those cited in fn. 3, 7, 8 and 9. The common law was already informed by the Convention, Director of Public Prosecutions v Jones [1999] 2 AC 240, 259B; R v Secretary of State for the Home Department, ex p McQuillan [1995] 4 All ER 400, 422f-j (Sedley J), so that the HRA may not always affect long-standing and well understood principles of the common law; R (on the application of Bright) v Central Criminal Court [2001] 1 WLR 662, ("Bright") 679D-F Judge LJ) and may not therefore be overly dramatic in its effect. R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115, 131G-132B (Lord Hoffmann). Quot judices, tot sententiae. The judges had indeed sounded a warning note against over enthusiastic use of the HRA. M. Fordham "Convention Case Law: Judicial Warnings” 2000 JR 139. These warnings have been heeded! Strasbourg authority should be deployed selectively, so that a responsible attitude is taken to whether to raise a HRA point, Daniels v Walker [2000] 1 WLR 1382, 1386F-1387C (Lord Woolf MR). Only that part of the researched material reasonably required for resolution of the issue is put before the court; Williams v Cowell [2000] 1 WLR 1897, 198D-E (Mummery LJ); R v North West Lancashire Health Authority, ex p A [2000] 1 WLR 977, 995E (Auld LJ); 1003A-C (Buxton LJ). Counsel who wish to rely on the HRA must supply the Convention decisions, Barclays Bank v Ellis TLR 24.10.00.
[11] Lambert at para. 30.
[12]Brown v Stott (Procurator Fiscal, Dumfermline) [2001] 2 All ER 97 ("Brown") (compulsory questioning of suspected road traffic offender); R v Secretary of State for the Home Department ex p. Daly [2001] 3 All ER 433 ("Daly") (confidentiality of prisoners' correspondence with lawyers); R v A (No.2) 2001 2 WLR 1546 ("R v A") (cross-examination of rape case complainant); Re Alconbury Developments Ltd and others v Secretary of State for the Environment, Transport and other Regions [2001] 2 WLR 1389 ("Alconbury") (Secretary of State's role in planning appeal); Lambert [2001] UKHL 37 206 (shifting burden of proof in drugs case). R v Looseley (A-G's reference No. 3 of 2000) [2001] 3 WLR 360 (entrapment). R v Forbes HL [2001] 1 AC 473 (identification evidence). R v Sargent [2001] 3 WLR 992 (admissibility of intercept evidence). R Pretty v DPP ("Pretty") (right to die). [2001] 3 WLR 1598. In Re B: (TLR 19.12.01) (Natural father can adopt his own child alone). Others pending before the House of Lords at the time of writing R v Shayler [2001] 1 WLR 2206 (national security and freedom of expression) ("Shayler"); R v Spear ("Spear") (fair trial and court martial).
[13] Brown at p. 113-114.
[14] [2001] 3 All ER 393 ("Aston Cantlow") para 44 at pp. 405-5.
[15] [2001] 1 WLR 1692 para 34 at p.1706 (on appeal to HL).
[16] [2001] 4 All ER (289) ('Gough').
[18] [2001] 3 WLR 553. (The regime under the Mental Health (Patients in the Community) Act 1995).
[20] cit.supra para 30 at pp. 447-448. See also fn. 10. Well before the HRA came into effect, the House of Lords equated the rights guaranteed by the common law and the Convention convincingly in the sphere of freedom of expression (Derbyshire C.C. v Times Newspapers [1993] AC 534); less convincingly in the sphere of due process (R v Khan [1997] AC 558).
[21] R (on the application of M) v Commissioner of Police of the Metropolis [2001] EWHC Admin 553; The Times August 17th, 2001; R v Spear [2001] EWCA Crim 3; [2001] 2 WLR 1692 at [35].
[23] p362 para 139. See also Bright “bred in the bone of the common law” Judge LJ at p6795
[24] Alconbury at p.1399; see also in Lambert per Lord Clyde: para 152 p.251; Lord Hutton: para 200, p. 276-6. Ashdown v Telegraph Group Ltd 2001 2 WLR 967 per Potter LJ para 25 695 "it is not bound to follow such case law (which has itself no doctrine of precedent) but if study reveals some clear principle, test or autonomous meaning consistently applied by the Strasbourg court applicable to a Convention question arising before the English courts, then the court should not depart from it without strong reason". See also R (on the application of Anderson) v Secretary of State for the Home Department CA [2001] EW CA Civ. 1698 13.11.01 (TLR 16.11.01) Simon Brown LJ at para 66 (D) 184 referring to the need for comity: Buxton LJ paras 87-89 where he emphasizes the need for consistent interpretation in the member states, the role of the ECHR in ensuring this, and the duty of national courts to follow their lead except "in extreme circumstances").
[25] eg. Fitzpatrick v Sterling Housing Association Limited [2001] 1 AC 27 (same sex partners qualify as family under the Rent Acts: see esp. cit p.40 (Lord Slynn) s.2(1) HRA could liberally be interpreted to allow English judges to adopt a more restrictive interpretation of the Convention than the European Court of Human Rights, but ought not purposively to be construed in such a way. The courts however still have the rôle of fashioning their own municipal rights jurisprudence. R (M) v Commissioner of Police (above) (see Laws LJ).
[26] Ex p. Kebilene [2000] 2 AC 236 per Lord Hope at p.380. Daly per Lord Steyn at [27]. Weight will be given to the decisions of a representative legislature: Brown at p.834 Lord Bingham. Lichniak: [2001] 4 All ER 934 at p.943. e.g.: R (on the application of Tucker) v DHSS [2001] AC 397. (Housing benefit regulations are proportionate).
[29] Such proceedings were held not to encompass judicial review proceedings nominally brought by the Crown: Ben-Abdelaziz v Haringey LBC [2001] 1 WLR 1485. Note that article 18(3) of HRJL is different from s.22(4) of the HRA. It applies to proceedings brought by a public authority after commencement.
[30] Lambert (para. 26-31) at 216-217.
[31] Lambert (above) per Lord Hope para. 99 at p.240. See also Lord Slynn: para 11, p.211. Lord Hope at para. 115, p.24. Lord Clyde: para. 42, p.253; Lord Hutton: para 169, p.262.
[32] 2001 UKHL 62 [2000] 3 WLR 1562.
[33] Lord Lloyd of Berwick conceived of the issue coming yet again before a seven judge Appellate Committee at para. 19: the case of the "Guinness Four" (where I represented Ernest Saunders) may provide a vehicle. See now R v Saunders CA 21 12.01 (unreported)
[34] In Kansal: Lord Hope said at para 84, that were retrospective effect given to s.3(1) of the HRA "the result could be that legislation which at the time of the pre-commencement act was being applied correctly according to the traditional rules of statutory interpretation must now for the purposes of s.7(1)(b) be given a different meaning which best accords with Convention rights. Such a result could have profound consequences. It would not be consistent with the general principle on which primary legislation depends which is legal certainty." cf: to apparently contradictory effect, Pye v Caroline Graham: TLR 15.2.01 Mummery LJ para 52.1 "The principle of interpretation of primary and secondary legislation contained in section 3 of the 1998 Act can be relied on in an appeal which is heard after that Act came into force, even though the appeal is against an order made by the court below before the Act came into force"; also Keene LJ para 57.
[35] Kebilene [2000] 2 AC 373F (Lord Cooke), 366B (Lord Steyn)
[36] Lambert (above) at [42]; R v A (No. 2) [2001] UKHL 25 [2001] 2 WLR 1546 at [13] and [43].
[37] Lambert (above) at [79] [81] (Lord Hope); A (No.2) (above) at [44] (Lord Steyn); Kebilene (above) at 367A (Lord Steyn);; A (No.2) (above) at [108] (Lord Hope); Wilson v First County Trust Ltd [2001] EWCA Civ 633 [2001] 3 WLR 41 ("Wilson") at [42] (Sir Andrew Morritt V-C). Popular Housing and Regeneration Community Association Ltd v Donoghue [2001] GWCA CIV 595 ('Poplar') per Lord Woolf LCJ at para. 75. In R v Offen [2001] All ER 154, section 2 of the Crime (Sentences) Act 1997 (two strikes and you are out) was read down so as to allow "exceptional circumstances" as a reason not to impose a life sentence to include circumstances where such imposition would be incompatible with the Convention. It is for this reason that declarations of incompatibility under section 4 have been so rare: see Dinah Rose, "The quest for compatibility between the Human Rights Act 1998 and the interpretive legislation." (Blackstone Chambers: unpublished). There have been two such declarations only in R (on the Application of H) v Mental Health Review Tribunal North and East London Region [2001] GW Civ 41 [procedures of mental health tribunals], in Wilson (a Consumer Credit Act disabled the creditor from enforcing an agreement because the debtor had not signed the prescribed forms even if no prejudice had resulted.) International Transport Roth Gmb H v Home Department TRL 11.12.01 (fining lorry drivers who carry illegal asylum seekers/immigrants). The "fast track" remedial procedure in section 10 of the HRA has not been replicated in HRJL.
[38] At para 34 p.1207. The issue was how far a complainant in a rape case could be cross-examined on previous sexual experience.
[39] See also: In Lambert Lord Steyn at para 42 p.223 (Lord Hope: para. 109 at p.1582); Lord Hope: para 78-81: pp. 233-5 envisaging both reading in, i.e. amplification, and reading down, i.e. limitation: but distinguishing interpretation from "amendment", p. 234 para. 81.
[40] The gay soldiers banned from the army (R v MoD ex p. Smith 1996 QB 517), succeeded in Strasbourg. Smith v R [2000] 29 EHRR 548. The Court will recognize, not the Strasbourg margin of appreciation, Kebilene (above) at 380E-381A (Lord Hope); Mahmood (above) at [31] (Laws LJ), but a narrower concept of discretionary area of judgment whether on the part of the executive or the legislature. In Poplar however recovery of possession of property at end of tenancy was held to be a matter of policy in which the court should defer to the decision of Parliament.. See further Kebilene (above) at 381B-D (Lord Hope); Samaroo v Home Secretary TLR 18.9.2001 ("Samaroo") at [35]. P and Q (above) at [64] (Lord Phillips MR); Brown v Stott (above) at 835A (Lord Bingham); Poplar Housing (above) at [69] and [72]. On this basis probationary tenancy plans were held valid. [McLennan v Bracknell Forest BC (2001) TLR 3.12.01]. See Elliott: Scrutiny of Executive Decisions under the HRA - Exactly how anxious? 2001 JR.166. Jowell: Beyond the Rule of Law: Towards Constitutional Judicial Review 2000 JR p.671.
[41] See Professor Jeffrey Jowell QC, "Beyond the Rule of Law: Towards Constitutional Judicial Review" [2000] PL 671; Craig, Administrative Law, 4th ed (1999), pp 561-563; Professor David Feldman "Proportionality and the Human Rights Act 1998", essay in The Principle of Proportionality in the Laws of Europe edited by Evelyn Ellis (1999), pp 117, 127 et seq.
[44] [2000] PL 678, at 681
[46] [2001] 2 WLR 1622 p. 1635 paras 25-28.
[47] The right was the right to life and its impact on the requirement of the applicants for soldiers to give evidence at Londonderry to the "Bloody Sunday" inquiry. Re the Saville Inquiry TLR 21.12.01 (CA).
[49] para. 110 at p.1021. The influence of the HRA on his thinking can be seen from paras. 128-132 (pp. 1025-1029). The duty to act compatibly with Convention rights (section 6) falls on any "public authority", including the Court. Therefore the requirement of compatible action can impact, for example, on the development of the common law. Venables (above). But see R v Press Complaints Commission ex p Anna Ford [2001] QBD Administrative Court Thursday July 1st 2001, English unreported (Privacy; commission ruling upheld).
[50] para. 32 at p.1637. [Earlier in Alconbury, above, Lord Slynn had said about proportionality "I consider that even without reference to the Human Rights Act the time has come to recognize that this principle is part of English administrative law not only where judges are dealing with community acts but also when they are dealing with acts subject to domestic law."] (para 51 at p. 1407).
[51] Alconbury; Lambert; R v A; R McCann v Crown Court at Manchester [2001] 1 WLR 1084 (anti-social behaviour orders) ["McCann"]; R v Spear: [2001] 2 WLR 1692; R v Benjafield [2001] 3 WLR 75 (confiscation onus of assets and presumption of innocence); R v Togher [2001] 3 All ER 463 (withholding of prosecution material/fair trial); Preiss v General Dental Council [2001] TLR 697 ("Preiss") (Dentists discipline); Biji v GMC TLR 2.10.01- (an anniversary decision!) (Doctors’ discipline); R v Havering Magistrates Court [2001] 1 WLR 805 (Bail). R v Francom [2001] 1 Cr. App. R. 237 (misdirection by judge about inferences to be drawn from silence); R v Davis [2001] 1 Cr. App. R. 115 (juror visits crime scene); R v Shannon [2001] 1 WLR 54 (agent provocateurs: evidence not excluded); R v Forbes [2001] 1 AC 473 (ID parade); R (Bright) v Central criminal Court [2001] 1 WLR 661 (production order); R v Crown Court at Leeds ex p Wardle [2001] UKHL 12, [2001] 2 All ER 1 (custody time limit); Ebore v OR [2001] 3 All ER 942 (vexatious litigant's rights of access to a court); R v Canterbury Crown Court ex p Regentford 100 TLR 6.2.01 (no judicial review of costs’ order in trial on indictment); Mowsaka Inc v Golden Stengal Maritime Inc TLR 3.10.01 (no reason for refusal of permission to appeal arbitration award); Cachia v Faluyi [2001] 1 WLR 1966 (actions brought on behalf of dependants of deceased under Fatal Accidents Act 1976); R. (on the application of Regentford Ltd) v Canterbury Crown Court [2001] ACD 232 (the statutory prohibition of judicial review of matters relating to trial on indictment was not a denial of right of access to a court); On bias see Porter v Magill TLR 14.12.01 (Council’s surcharge); R (PR of C. Beeson v Dorset C.C.) (30.11.01 DC) (constitution of complaint panel of local authority); O’Shea v MGN 1A 4.5.2001 (QBD) (no look-alike libel actions); Re Chararigit Singh: 10.10.2001 (Court of Session: Outer House: (special adjudicators); Hamid Ali Husain v Asylum Support Adjudicator [2001] TLR 3.12.01 (asylum support adjudicator); County Properties Ltd v The Scottish Ministers Court of Session: Inner House: (planning decision); R v Norwich C.C., ex p. Bendry (31.7.01 DC) (housing benefit Review Boards); on legal aid and equality of arms: R v Liverpool Crown Court, ex p. Shields 2001 UKHRR 610; R v Legal Services Commission, ex p. Jarrett TLR (22.5.01). See also AG’s Reference No. 3 of 1999 [2001] 2 WLR 56 (DNA samples admissible)
[52] e.g. Venables above (injunction to prevent press revealing whereabouts of Bulger killers); Ashdown v Daily Telegraph Group Ltd [2001] 4 All ER 666 (on occasions copyright law could infringe Article 10). Douglas: Attorney General v Times Newspapers Ltd [2001] 1 WLR 885 CA: (republication of information in public domain: Attorney-General’s confirmation); Loutchansky v Times Newspapers Ltd [2001] 3 WLR 404 CA (matters not known at time of publication and qualified privilege in libel. Brooke LJ said: "The public has no right to know untrue defamatory matter about which a newspaper has made no sufficient enquiry before deciding to publish it." (at p.120 para 44)); see also Loutchansky v Times Newspapers Ltd (No. 2) TLR 7.12.01 (duty to publish: "single publication rule"); AG v Punch Ltd [2001] 2 WLR 1712 (where it was observed that it is not open to a court to "make it a criminal offence for a newspaper to fail to obtain clearance from the Attorney-General before publishing material to which there might manifestly not be the slightest ground of objection" Lord Phillips of Maltravers MR paras 107-109, p.1742); Ashworth Hospital Authority v MGN Ltd [2001] 1 WLR 515 (disclosure of the identity of an informant who transmitted secure patients’ medical records to a newspaper was necessary in the interests of justice) (on appeal to HL); R v Press Complaints Commission ex p Anna Ford [2001] QBD Administrative Court 1.7.91 (privacy; commission ruling upheld); the collision between the right to freedom of expression (given especial protection in HRA s. 12 in the context of an application for an interlocutory injunction) is discussed in Douglas [above], especially para. 31-43 and the right to privacy. It is thought likely that the former will trump the latter; but see A v B and C Ltd [2001] 1 WLR 2341 (sex secrets protected as inherently confidential).
[53] Aston Cantlow [above]; Wilson [above]; failure to prevent flooding has been held to breach property right and rights to respect for homes, Marcic v Thames Water Utilities [2001] 3 All ER 698. (on appeal to CA); Pye v Caroline Graham TLR 15.2.01. (adverse possession) Lord Woolf LCJ in a speech in Hong Kong, July 2001, said "Human Rights points have been, in line with most peoples expectations, often raised in criminal, prison or immigration cases, but it is perhaps more of a surprise to see how frequently they can be raised in employment, planning and even commercial cases."
[54] Lord Woolf LCJ ditto. See further fn. 32; Data analysed by a London set of Chambers between 2/10/00 and 31/10/01 show 255 HRA cases (54 civil and private 119 civil and public, and 82 criminal including judicial review. In 79 cases the HRA made no difference. In 176 cases it affected the outcome, claims were upheld under s.3(10): s.4(2): s.6(48); E. Salgado and C. O’Brien: [2001] EHRLR Issues 2 and 4.
[55] R Lichniak v Secretary of State: [2001] 4 All ER 934 ("Lichniack")
[56] Kebilene [2000] 2 AC 236
[57] Lambert; R v Benjafield [2001] 3 WLR 75 (presumptions in confiscation orders of assets of drug dealers compatible with Article 6(1)).
[58] R v Brown [2001] WLR 817. Article 7 of the Convention made no change in the approach to sentencing for buggery even where domestic tariff had increased since the date of the offence. R v Alden TLR 27.2.01. Extradition is not a penalty to which the Convention applies R (Marais) v Governor of Brixton Prison TLR 18.12.01. There is no breach of rights in life sentence for mentally ill prisoner R v Drew TLR 14.1.02.
[59] AG's Reference No. 2 [2001] 2 WLR 1869.
[60] R v Home Secretary ex p Isiko [2001] UKHRR 385. Short-term detention of asylum seekers is lawful; R L Saadi & others v Home Secretary [2001] 4 All ER 961; R v Camden and Islington Housing Authority ex p K [2001] 3 WLR 588 (article 5 not breached if health authority cannot procure suitable level of care, and detention of restricted patient continues)
[61] R (Samaroo) v Home Secretary TLR 18.9.01.
[62] Ex p Holub TLR 13.2.01. It was not a breach of the right to respect for family life that for the purpose of the British Nationality Act 1981 the relationship of mother and child existed between a woman and any child, legitimate or illegitimate, both to her, but the relationship of father and child existed only in relation to legitimate children. R v Home Secretary ex p. Montana: TLR 5.12.00.
[63] R v Birmingham City Council ex parte Y TLR 10.1.01.
[64] R (Mitchell) v Coventry University: 2001 ELR 594.
[65] R (on the application of B) v Head Teacher of Alperton Community School 2001 EU 359.
[66] Ebert v Official Receiver [2001] ACD 359.
[67] DPP v Havering Magistrates Court [2001] 1 WLR 805 ("Havering").
[68] R v Qureshi TLR 11.9.01.
[69] DPP v Redbridge Youth Court [2001] 4 All ER 411.
[70] R v Botmeh and Alami; [2001] EW CA Crim. 1.11.01 TLR 8.11.01
[71] R v Commissioner of Police ex p. M TLR 19.08.01 where the Divisional Court emphasised that the Convention should not be invoked "when the deprivation of a right was merely theoretical" or "illusory." But see Napier v Scottish Ministers TLR 15.11.91 (Court of Session - detention without toilet-degrading treatment).
[72] R v Manchester Crown Court ex p. McCann & Ors TLR 22.12.2000.
[73] Ex p. Fleurose TLR 15.1.02 (CA); (penalties for breach of prison rules); Matthewson v The Scottish Ministers TLR 24.10.01; Greenfield v Home Secretary TLR 6.3.01; Carroll v Secretary of State for the Home Department [2001] 4 All ER 249. (football banning order); R v Gough [2001] 4 All ER 289; OR v Stern [2000] 1 WLR 2230 (director disqualification order); B v Chief Constable of Avon and Somerset Constabulary; [2001] 1 WLR 340 (sex offender order); Pearson TLR 17.4.01; Goldsmith v Commissioners of Customs and Excise TLR 12.6.01 (the proceedings for the condemnation of goods forfeited by Customs and Excise); contrast R v Walden (TLR 12.6.01):, however, fixing a tax penalty is a criminal procedure under human rights law for Article 6 purposes
[74] Han v Commissioners of Customs and Excise [2001] 1 WLR 2253
[75] R v Allen (2) [2001] 4 All ER 768
[76] WBC v UK [2001] ACD 236
[77] R (Pearson and Martinez) v Secretary of State for the Home Department, Divisional Court, 4 April 2001
[78] R v Home Secretary ex p. Mellor [2001] 3 WLR 1731
[79] Queen v Chair and Governing Body of Cwmfelinfach Primary School (on the application of G) Transcript case no CO/4474/00 High Court. Nor could a desire for corporal punishment in school ex p Williamson 16 Nov. 2001 (The Times).
[80] R v Shayler TLR 10.10.01
[81] RSPCA v A-G TLR 13.2.01
[82] R v Ashworth Special Hospital Authority ex p. N TLR 26.6.01
[83] R v P [2001] 2 WLR 463
[84] R v Sargent [2001] UKHL 54
[85] NHS Trust v M [2001] 2 WLR 942
[86] R.C. Pretty v DPP: [2001] 3 WLR 1598. However a death in custody allegedly contrary to article 2 and/or 3 may require an order for investigation R v Home Office, ex p. Wright and Bennett [2001] 62 BMLR 16; R v Home Department, ex p. Amin 5.10.01 DC
[87] In re A Children (conjoined twins: surgical separation) [2001] 2 WLR 489. see: Jonathan Black-Berwick "Being Over Nothingness the Right to Life under the Human Rights Act 1998", ECR 2001. Human Rights Review HR12.
[89] Commentary can be vast as well : there are 20 books in the Bodeian index
[90] [2001] 1 Cr. App R 237 (misdirection of jury on inferences not to be drawn from interview silence) paras. 32-33.
[91] [2001] 1 Cr. App R 23 paras. 47, 48 and 50.
[92] PC, above. See also R v Forbes [2001] 2 WLR 1 per Lord Hobhouse para 24 to like effect. R v A per Lord Steyn at para 90.
[93] 825A and 849E respectively. See also Lord Steyn's comment in Mohamed (Allie) v The State [1999] 2 AC 111 (PC) at 124: "A breach of a defendant's constitutional right to a fair trial would inevitably result in the conviction being quashed."
[94] [2001] 1 Cr App R 115 (juror visited scene of crime).
[95] [2000] 1 WLR 2230 at p. 2256 G-H.
[96] TLR (21.12.00) paragraph 27.
[98] Marcie v Thames Water Utilities Limited. See above.
[99] R v Secretary of State for Home Department ex p Q and P [2001] 2 FLR 283
[100] Aston Cantlow (above)
[101] Re Crawley Green Road Cemetery, Luton [2001] 3 WLR 25.
[102] Ex p Robertson TLR 27.11.01.
[103] R v Secretary of State for Health ex parte Wagstaff [2000] HRLR 646 (DC). (Dr Shipman was a multiple murderer).
[105] R v Mental Health Review Tribunal ex parte C. [2001] EW CA Civ. 1110. For other detention cases see R v Governor of Brockhill Prison ex p. Evans (No. 2) [2001] 2 AC 191; R v Governor of Brixton Prison ex p. Karshanu TLR 12.12.01 (extradition)
[106] 2001 UKHL 62 para 52.
[107] In the one corner is the expansionist, Sir William Wade QC. In the other (the restrictionist) is Sir Richard Buxton. Sir William Wade "Horizons of Horizontality" (2000) 116 LQR p.217; Sir Richard Buxton "The Human Rights Act and Private Law" (2000) 116 LQR p.48; see also M. Hunt "The Horizontal Effect of the Human Rights Act 1998" PL p.423.
[108] See Bamforth above para. 36. The duty to act compatibly with Convention rights (section 6) falls on any "public authority", which concept is to be given a generous interpretation, Poplar Housing [2001] EWCA Civ 595; [2001] 3 WLR 183 at [58], albeit not an all-embracing one. R (on the application of Heather) v Leonard Cheshire Foundation [2001] EWHC Admin 429 [2001] ACD 401; RSPCA v Attorney-General [2001] UKHRR 905 at [37]. Since the Court is itself a "public authority", it has, on one view, an autonomous obligation to develop the common law Douglas (above) at para. 12; see also D. Oliver "The Frontiers of the State: Public Authorities and Public Functions under Human Rights Act" PL. 2000 p.476.
[109] M J Beloff QC "Who-whom-Issues in locus standi in public law"; Judicial Review in International Perspective; Essays in Honour of Lord Slynn: Khier (2001).
[110] Professor Andrew Oswald "Reformers must notice that free does not mean cheap". The Guardian August 2001.
[111] My template for this article appeared in The Times Section two October 2nd, 2001 "The Human Rights Act - One Year On". Appendix A compares HRA with HRJL. Appendix B shows which convention rights are incorporated in which jurisdiction.
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