Judicial Precedent Casesnotes Essay
Judicial Precedent Casesnotes
6.4 Continuity and change in the doctrine of precedent
Miliangos v George Frank  AC 443 (Required)
The claimant (M), who was a Swiss national, supplied yarn (紗線) to an English company under a contract which provided for payment to be made in Swiss francs. The company failed to pay and M made a claim in the English courts. He asked that the award be in Swiss francs and not in English pounds as the value of the pound had fallen. There was a House of Lords decision, Re United Railways of Havana (1960), which stated that judgments could only be given in pounds and not in any other currency. The Court of Appeal in Schorsch Meier GmbH v Hennin (1975) (see 1.4) had refused to follow this decision of the House of Lords. The House of Lords held that the change in the stability of the pound was a good reason to depart from their earlier decision, but they also pointed out that the Court of Appeal had no right to do this. Key Law
(1) The House of Lords had power under the Practice Statement to overrule its own past decisions. (2) Lower courts are bound to follow decisions of higher courts. Key Judgment: Lord Simon ‘Courts which are bound by the rule of precedent are not free to disregard an otherwise binding precedent on the ground that the reason which led to the formulation of the rule embodied in such precedent seems to the court to have lost cogency (使人信服的力量;中肯).’ Key Comment
It seems likely that if the Court of Appeal, in Schorsch Meier GmbH v Hennin, had not departed from the decision of the House of Lords in Re United Railways of Havana, then the case of Miliangos may never have been appealed to the House of Lords. This would have meant that the House of Lords did not have the opportunity to review its earlier decision.
Davis v Johnson  AC 264 (Required)
Davis v Johnson  1 All ER 1132
A young unmarried mother applied for an injunction ordering her violent partner to leave their flat. The tenancy of the flat was in their joint names. Earlier cases in the Court of Appeal had held that an injunction could not be granted where the partner had a right in the property (in this case a tenancy). The Court of Appeal refused to follow its earlier decisions. On appeal to the House of Lords, it was held that the earlier cases had been wrongly decided, but the House of Lords reminded the Court of Appeal that they were bound to follow its own previous decisions, subject to the exceptions in Young’s case. Key Law
The Court of Appeal is bound to follow its own previous decisions, subject to the exceptions in Young’s case. Key Judgment: Court of Appeal, Lord Denning ‘While this court should regard itself as normally bound by a previous decision of the court, nevertheless it should be at liberty to depart from it if it is convinced that the previous decision was wrong. What is the argument to the contrary? It has been said that if an error has been made, this court has no option but to continue the error and leave it to be corrected by the House of Lords. The answer is this: the House of Lords may never have an opportunity to correct the error; and thus it may be perpetuated indefinitely, perhaps forever.’ Key Judgment: House of Lords, Lord Diplock
‘In an appellate court of last resort a balance must be struck between the need on the one hand for the legal certainty resulting from the binding effect of previous decisions and, on the other side, the avoidance of undue restriction on the proper development of the law. In the case of an intermediate appellate court, however, the second desideratum can be taken care of by appeal to a superior appellate court, if reasonable means of access to it are available; while the risk to the first desideratum, legal certainty, if the court is not bound by its own previous decisions grows ever greater. So the balance does not lie in the same place as a court of last resort.’ Key Comment
The judgments in this case demonstrate the arguments for and against the Court of Appeal having more freedom to depart from its own previous decisions. It is noticeable that since this case, the Court of Appeal has always followed the decisions of the House of Lords and the Supreme Court, except where there has been a decision of the European Court of Justice, the European Court of Human Rights (or in one exceptional case, the Privy Council – see R v James: R v Karimi (2006)).
Practice Statement (HL: Judicial Precedent)  3 All ER 77 (the 1966 Practice Statement) (Required) Practice Statement [Judicial Precedent]  3 All ER 77
‘Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. Their Lordships nevertheless recognise that the rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They, therefore, propose to modify their present practice and while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so. In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlement of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law. This announcement is not intended to affect the use of precedent elsewhere than in this House.’ N.B. Although this does not technically apply to the Supreme Court, that court is also prepared to overrule its own past decisions.
R v Shivpuri  2 WLR 988 (Required)
R v Shivpuri  2 All ER 334
D thought he was dealing in prohibited drugs. In fact it was snuff and harmless vegetable matter. In an earlier case, Anderton v Ryan (1985), the House of Lords had held that there could not be an attempt in this sort of situation. However, in Shivpuri, they accepted that their decision in Anderton v Ryan had been wrong and used the Practice Statement to overrule it, even though that case had been decided only a year earlier. Key Law
Even though the Practice Statement stressed need for ‘especial certainty as to the criminal law’, the House of Lords could use it to overrule an earlier case in the criminal law as well as in civil law. Key Judgment: Lord Bridge
‘I am undeterred by the consideration that the decision in Anderton v Ryanwas so recent. The 1966 Practice Statement is an effective abandonment of our pretention to infallibility. If a serious error embodied in a decision of this House has distorted the law, the sooner it is corrected the better.’
Anderton v Ryan  AC 560
Abstract: A person carrying out an objectively innocent act with a guilty mind does not attempt to commit a criminal offence by reason of the Criminal Attempts Act 1981 s.1 . R possessed a video recorder which she bought from a person she refused to name for GBP 110. R told the police officer who had visited her home that she believed it to be stolen. R was charged with handling stolen goods and attempting to handle stolen goods. The prosecution took the view that they could not prove the video recorder to be stolen so proceeded with the attempt charge alone. The justices found that R believed the video recorder to be stolen but were not satisfied that it was in fact stolen. The justices dismissed the charge. The prosecution appealed successfully to the Divisional Court.
The Divisional Court refused leave to appeal but certified a point of law of general public importance, namely did a person commit an offence where, if the facts were as the person believed them to be, an offence was committed by him but on the true facts the offence the person set out to commit was impossible. Held, allowing R’s appeal, that the effect of the Criminal Attempts Act 1981 s.1(1) and s.1(4) was to restate the position at common law that a person who does an act which is more than merely preparatory to the commission of an offence which, if completed, would be triable as an indictable offence with the intent to commit that offence was guilty of an attempt. s.1(2) and s.1(3) were complementary and to be read together. S.1(2) made it an offence of attempt where a person acting in a criminal way with an intent to commit a crime was prevented from committing the substantive offence by its impossibility, e.g picking an empty pocket. S.1(3) covered the case of a person acting in a criminal way with an intent to commit a specific crime which he believed to be possible but was in fact not possible. Neither subsection had the effect of turning innocent acts into an offence of attempt to commit a crime merely because the person believed his actions to be criminal ( R. v Collins (1864) 9 Cox C.C. 497 considered, Haughton v Smith  A.C. 476 considered).
R v Howe  2 WLR 568
Abstract: Duress cannot be a defence to murder. When one incites another to commit murder and that other is convicted of manslaughter, the inciter may nevertheless be convicted of murder. In the first appeal, A and B were taken to a desolate place by X, together with the victim. A, B and X assaulted the victim, and X killed him. On another occasion, A and B strangled their victim. On a further occasion, their victim escaped. A and B were charged on two counts of murder and one count of conspiracy to murder. Their defence was duress in that they feared for their own lives from X. The judge left that defence on the first murder, and the conspiracy, but not on the second. In the second appeal, C and D were charged with murder. C had killed the victim, but his defence was that he had agreed with D to kill through fear that he himself would be killed by D, and that the gun had gone off accidentally. The judge directed the jury that duress was no defence to murder, but that it could be relevant in deciding whether C’s act was unintentional, or whether C was guilty of manslaughter.
He directed the jury that if they convicted C of manslaughter, they could not convict D of murder. C and D were convicted of murder. Appeals to the Court of Appeal were dismissed. Held, dismissing the appeals that duress was no defence to a charge of murder. Further, the judge had erred in the second appeal, and D could have been convicted of murder, even if C had been acquitted, and convicted of manslaughter. Per curiam: when the defence of duress is raised the test is whether the threat was of such gravity that it might well have caused a reasonable man placed in the same situation to act in the same way ( R. v Dudley (Thomas) (1884) 14 Q.B.D. 273 and Abbott v Queen, The  A.C. 755 applied; R. v Graham (Paul Anthony)  1 W.L.R. 294 approved; DPP for Northern Ireland v Lynch  A.C. 653 overruled; and R. v Richards (Isabelle Christina)  Q.B. 776 overruled).
DPP for Northern Ireland v Lynch  2 WLR 641
Summary: Murder; aiding and abetting; whether duress a defence Abstract: Duress is a defence to a charge of aiding and abetting murder. D drove a car containing members of the IRA, who shot and killed a police officer. D was charged with aiding and abetting the murder. He claimed that he acted under duress, in fear that he would be shot if he did not cooperate. The trial judge held that the defence of duress was not open to him, he was convicted, and the Court of Criminal Appeal of Northern Ireland upheld the conviction. On appeal to the House of Lords, held, the defence of duress was open to a principal in the second degree to murder and a new trial would be ordered. (R. v Dudley (Thomas) (1884) 14 Q.B.D. 273 distinguished; dictum in Attorney General v Whelan  I.R. 518considered).
London Tramways v London City Council  AC 375
Earl of Halsbury LC: “a decision of this House once given upon a point of law is conclusive upon this House afterwards, and that it is impossible to raise that question again as if it was res integra and could be reargued, and so the House be asked to reverse its own decision. That is a principle which has been, I believe, without any real decision to the contrary, established now for some centuries, and I am therefore of opinion that in this case it is not competent for us to rehear and for counsel to reargue a question which has been recently decided.”
6.5 Tensions between the House of Lords and the Court of Appeal Schorsch Meier v Hennin  QB 416
Schorsch Meier GmbH v Hennin  1 All ER 152
The court had to consider whether damages had to be awarded in sterling or whether they could be in another currency. There was a decision by the House of Lords in the Havana Railway case (1960) that damages had to be in sterling. The Court of Appeal refused to follow this because sterling was no longer a stable currency. Justice required that damages be awarded in German marks otherwise the claimant would not have received the true value of his claim. Key Law: See next case.
Miliangos v George Frank [Textiles] Ltd  1 All ER 1076, CA,  3 All ER 801 HL Key Facts: See 1.2.
The Court of Appeal is bound to follow decisions of the House of Lords and the Supreme Court.
6.6 Judicial law making
R v Clegg  1 AC 482
R v Clegg  1 All ER 334
D was a soldier on duty at a checkpoint in Northern Ireland. A car failed to stop at the checkpoint and D was shouted at to stop it. D fired four shots at the car. One of the shots killed a passenger in the car. The evidence was that the car was some 50 yards past the checkpoint by the time the fatal shot was fired. D was convicted of murder. The House of Lords refused to allow a defence of self-defence to succeed where the force used was excessive in the circumstances. Key Law
Judicial law-making is permissible but should be exercised with discretion. Major changes in the law are for Parliament to make. Key Judgment: Lord Lowry ‘I am not averse to judges developing law, or indeed making new law, when they can see their way clearly, even when questions of social policy are involved … But in the present case I am in no doubt that your Lordships should abstain from law-making. The reduction of what would otherwise be murder to manslaughter in a particular class of case seems to me essentially a matter for decision by the legislature, and not by the House in its judicial capacity.’
McLoughlin Appellant v O’Brian (1983)
Summary: Remoteness of damage; nervous shock; plaintiff not at the scene of accident Abstract: The House of Lords extended liability for nervous shock to all cases where it was reasonably foreseeable that the plaintiff would suffer such injury, irrespective of any limitations of time and space. One of M’s children was killed and her husband and other two children were severely injured in a road accident. The incident was reported to M while she was at her home, some two miles from the scene. At the hospital M saw the extent of the injuries to her family and heard of the death of her daughter, as a result of which she suffered severe and persisting nervous shock, for which she claimed damages.
Held, that the test of liability for nervous shock is the ordinary test of reasonable foreseeability. If it was reasonably foreseeable that M would suffer nervous shock, even though nowhere near the scene of the accident, she was entitled to recover. In considering the question of reasonable foreseeability there are no legal limitations of time, space, distance, nature of injuries, or the relationship of victim to plaintiff, although these are all factors to be considered ( Bourhill v Young  A.C. 92 and Hambrook v Stokes Bros  1 K.B. 141 applied; King v Phillips  1 Q.B. 429 dictum approved).
6.7 Judicial law making and human rights
Venables and Thompson v Newsgroup Newspapers  HRLR 19 at H8 Summary: V and T, who, at the age of 11, had been convicted of the murder of a child, applied for injunctions protecting them, inter alia, from being identified upon their release from detention. It was held that (1) there was a real possibility that V and T would be in danger of revenge attacks if their identities were disclosed such as to make the instant case an exceptional one; (2) the court was under a positive duty to operate to protect individuals from the criminal acts of others; (3) in exceptional cases, the court had jurisdiction to widen the scope of the protection of confidentiality of information, even to the extent of placing restrictions on the press, where if no restrictions were imposed there was a likelihood that the person seeking confidentiality would suffer serious physical injury or even death and no other means of protection was available, and (4) the injunctive relief sought should be granted openly against the world. Abstract: V and T, who, at the age of 11, had been convicted of the murder of a child, applied for injunctions protecting them, inter alia, from being identified upon their release from detention. During the period of their detention, injunctions had been made limiting the information that the media could publish. However, those injunctions had expired when V and T reached the age of 18. Both V and T sought injunctions that would run indefinitely.
Held, granting the injunctions, that (1) there was a real possibility that V and T would be in danger of revenge attacks if their identities were disclosed such as to make the instant case an exceptional one. It was apparent from the evidence before the court that a level of hostility and desire for revenge existed amongst certain members of the public; (2) the court was under a positive duty to operate to protect individuals from the criminal acts of others, Osman v United Kingdom (23452/94)  1 F.L.R. 193 applied; (3) in exceptional cases, the court had jurisdiction to widen the scope of the protection of confidentiality of information, even to the extent of placing restrictions on the press, where if no restrictions were imposed there was a likelihood that the person seeking confidentiality would suffer serious physical injury or even death and no other means of protection was available. Any restriction on the right of the media to publish had to fall within the exceptions established under the European Convention on Human Rights 1950 Art.10(2), and those exceptions were to be given a narrow interpretation, and (4) given that the courts had to act in a way that was compatible with the Convention, the injunctive relief sought would be granted openly against the world.
6.8 Human rights, the doctrine of precedent and the common law Leeds City Council v Price/Kay v London Borough of Lambeth  UKHL 10 (Required) Summary: In so far as the ratio of the decision in Harrow LBC v Qazi  UKHL 43,  1 A.C. 983 was that the enforcement of a right to possession in accordance with the domestic law of property could never be incompatible with the Human Rights Act 1998 Sch.1 Part I Art.8, that had to be modified in the light of Connors v United Kingdom (66746/01) (2005) 40 E.H.R.R. 9. Abstract: The appellants (K and P) appealed against decisions ( EWCA Civ 926 and  EWCA Civ 289) that the Human Rights Act 1998 Sch.1 Part I Art.8 afforded them no defence against actions for possession brought by the respondent local authorities (B and L). K had occupied residential premises owned by B and originally licensed to a housing trust. Although they had originally been granted licences, they had become tenants of the trust when B had granted the trust a lease of the properties. B had then terminated the lease and sought possession of the properties on the basis that K were trespassers. K had argued that on the termination of the lease they had become tenants of B, and alternatively that Art.8 afforded them a defence to the claim. P were gypsies who had entered onto land owned by L. In response to an application by L for possession of the land they had argued that L was in breach of its statutory obligation to provide gypsy sites, that their circumstances were exceptional and that they were protected by Art.8. The issues were whether (i) K were tenants of B or were trespassers; (ii) the majority decision in Qazi v Harrow LBC  UKHL 43,  1 A.C. 983had to be modified to take account of later Strasbourg jurisprudence, particularly the case of Connors v United Kingdom (66746/01) (2005) 40 E.H.R.R. 9; (iii) defendants to possession proceedings brought by public authorities should be permitted in principle to raise an Art.8 defence in those proceedings, rather than being required to raise them by way of judicial review; (iv) the English rules of precedent had to be modified to enable a court to decline to follow a decision by which it would otherwise be bound, if that decision appeared to be inconsistent with a later ruling of the court in Strasbourg.
Held, dismissing the appeals (Lords Bingham, Nicholls and Walker dissenting on the issue of the circumstances in which an Art.8 issue had to be considered), that (1) K were, vis a vis B, trespassers with no right to remain in the properties. Though the lease by B to the trust had meant that there was a relationship of landlord and tenant between the trust and K, K had had no estate in the land and had simply been a licensee when it had granted the original licences. Thus, the tenancies were not derivative estates and any rights enjoyed by K had never been enforceable against B. (2) In so far as the ratio ofQazi was that the enforcement of a right to possession in accordance with the domestic law of property could never be incompatible with Art.8, that had to be modified in the light of Connors , Qazi doubted and Connors applied. (3) It was open to an occupier to raise an Art.8 defence to possession proceedings in the county court rather than by way of judicial review. However, the public authority did not from the outset have to plead and prove that the order sought was justified. Once the court accepted that the property in question was the occupier’s home for the purposes of Art. 8, it was to proceed on the assumption that the requirements of the domestic law regarding possession struck a fair balance and would provide the justification for interference required by Art.8(2). Further consideration of the interests protected by Art.8 would be unnecessary and there was no requirement that the Art.8 issue had to be considered by the court in every case by taking into account the occupier’s personal circumstances. Indeed, such a requirement would go further than justified by the Strasbourg jurisprudence.
There would, however, be some cases of a special and unusual kind, such as Connors , where the interference with the occupier’s Art.8 interests would have to be justified by a decision making process that ensured that some special consideration was given to those interests. If there was any defect in the law giving rise to possession then it would have to be amended to provide the necessary safeguards. A defence that did not challenge the law under which the possession order was sought as being incompatible with Art.8, but was based only on the occupier’s personal circumstances had to be struck out. Where the domestic law provided for personal circumstances to be taken into account, for example where the statutory test was whether it was reasonable to make the order, then there had to be a fair opportunity for the arguments in favour of the occupier to be presented. If, however, the requirements of the law had been established and the right to recover possession was unqualified, the only situations in which it would be open to the court to refrain from making the possession order were if a seriously arguable point was raised that the law was incompatible with Art.8, or if the occupier wished to challenge the public authority’s decision to seek possession as an improper exercise of its powers on the ground that no reasonable person would consider the decision justifiable. In the former situation the High Court would have to deal with the compatibility issue unless the county court was able to give effect to the law in a way that was compatible, pursuant to s.3 of the 1998 Act. (4) The English courts had to adhere to the English rules of precedent. It was for the national courts to decide in the first instance how the principles expounded in Strasbourg were to be applied, and the ordinary rules of precedent had to apply to those decisions. There had to be a degree of certainty in the interpretation of the law and that was best achieved by adhering to the rules of precedent. If a judge felt that a decision was inconsistent with Strasbourg authority he had to follow the binding precedent but could give leave to appeal as appropriate. (5) (Per Lords Bingham, Nicholls and Walker) In highly exceptional circumstances an occupier might be able to raise a seriously arguable case, on the basis of his personal circumstances, that a possession order would be in breach of Art.8.
R v Horncastle  2 WLR 47 (Required)
Summary: The statutory regime relating to the admission of the evidence of an absent witness at a criminal trial did not breach the European Convention on Human Rights 1950 art.6 . Convention jurisprudence did not require the regime to be disapplied in favour of a rule that convictions based solely or decisively on such evidence were incompatible with art.6. Abstract: The appellants (H) appealed against a decision ( R. v Horncastle (Michael Christopher)  EWCA Crim 964,  4 All E.R. 183 ) that they had received fair trials and their convictions were safe. H had been convicted after trials in which statements of witnesses who were not called to give evidence had been placed before the jury. In the first appeal, the witness had died but had made a statement before he died. In the second appeal, a witness had made a statement but had refused to attend trial because she was too frightened to give evidence.
In each case, the statement was admitted pursuant to the Criminal Justice Act 2003 s.116 . H, relying on the decision of the European Court of Human Rights in Al-Khawaja v United Kingdom (26766/05) (2009) 49 E.H.R.R. 1 , argued that their convictions were based solely, or to a decisive extent, on statements of witnesses whom they had had no chance of cross-examining, and therefore infringed the European Convention on Human Rights 1950 art.6(1) and art.6(3)(d) . Appeals dismissed. The judgment of the ECtHR in Al-Khawaja was not to be treated as determinative of the success of the appeals. Although the requirement in the Human Rights Act 1998 s.2(1) to take into account the ECtHR jurisprudence normally resulted in the national courts applying principles clearly established by the ECtHR, there would be rare occasions, such as the instant case, when the Supreme Court would have concerns as to whether a decision of the ECtHR sufficiently appreciated particular aspects of domestic process. In such circumstances the SC could decline to follow the ECtHR decision, giving reasons for adopting that course. The common law had, by the hearsay rule, addressed the aspect of a fair trial that art.6(3)(d) was designed to ensure, long before the Convention came into force. The continental procedure had not addressed that aspect. Parliament had enacted exceptions to the hearsay rule that were required in the interests of justice, including the Criminal Evidence Act 1965 , the Police and Criminal Evidence Act 1984 , and the 2003 Act. The exceptions were not subject to the “sole or decisive” rule, since the regime enacted by Parliament contained safeguards that rendered that rule unnecessary. In particular, the 2003 Act contained a code intended to ensure that hearsay evidence was only admitted when it was fair that it should be. Hearsay was not made generally admissible by the code, but it made provision for a limited number of categories of admissible hearsay, and in s.124 , s.125 , and s.126 , established special stipulations to which hearsay evidence was subject. Article 6(3)(d) did not deal with the appropriate procedure where it was impossible to comply with art.6(3)(d). The ECtHR had recognised, prior to Al-Khawaja , that exceptions to art.6(3)(d) were required in the interests of justice, Grant v Queen, The  UKPC 2,  1 A.C. 1 and Doorson vNetherlands (1996) 22 E.H.R.R. 330 considered. It had also recognised that the admissibility of evidence was primarily a matter for national law, and that the fairness of a trial had to be assessed on a case by case basis, Kostovski vNetherlands (A/166) (1990) 12 E.H.R.R. 434 considered.
The manner in which it had approved the exceptions had resulted in a jurisprudence that lacked clarity. The sole or decisive rule had been introduced into the ECtHR jurisprudence in Doorsonwithout discussion of the principle underlying it or full consideration of whether there was justification for imposing the rule as an overriding principle applicable equally to the continental and common law systems. The sole or decisive rule would create severe practical difficulties if applied to English criminal procedure. It raised the question of what was meant by decisive: any item of probative evidence might make all the difference between conviction and acquittal. It would often be impossible for an appeal court or the ECtHR to decide whether a particular statement was the sole or decisive basis of conviction. Not treating a particular piece of evidence as decisive would be a hard enough duty for a professional judge to discharge; a direction to a jury that they could regard a witness statement as supporting but not decisive evidence would involve them in mental gymnastics that few could perform.
In any event, although English law did not include the sole or decisive rule it would, in almost all cases, have reached the same result in those cases where the ECtHR had invoked it. Al-Khawaja did not establish that it was necessary to apply the sole or decisive rule in England and Wales, Al-Khawajaconsidered. It had applied the rule in reliance on the ECtHR case law, but that case law had developed without full consideration of the safeguards against an unfair trial that existed under the common law procedure. If the rule was applied rigorously it would in some cases result in the acquittal, or failure to prosecute, defendants where there was cogent evidence of their guilt. That would be to the detriment of victims. Accordingly, it would not be right to hold that the sole or decisive rule should have been applied rather than the 2003 Act interpreted in accordance with its natural meaning.
Manchester City Council v Pinnock (Secretary of State for Communities and Local Government and another intervening) 3 WLR 1441 (Required) Summary: The European Convention on Human Rights 1950 art.8 required that a court asked to make an order for possession under the Housing Act 1996 s.143D(2) had the power to assess the proportionality of making the order. Abstract: The appellant demoted tenant (P) appealed against a decision ( EWCA Civ 852,  1 W.L.R. 713) to uphold a possession order made under the Housing Act 1996 s.143D. The respondent local authority had obtained a demotion order in respect of P’s secure tenancy following serious allegations against his partner and children. It claimed possession on the basis of further alleged antisocial behaviour. P stated that a possession order would violate his rights under the European Convention on Human Rights 1950 art.8. The county court and Court of Appeal considered that the order should be made and that the courts’ role did not extend to considering whether art.8 had been complied with. P argued that although the majority in the House of Lords in Qazi v Harrow LBC  UKHL 43,  1 A.C. 983, Kay vLambeth LBC  UKHL 10,  2 A.C. 465 and Doherty v Birmingham City Council  UKHL 57,  1 A.C. 367 had held that a residential occupier against whom possession was sought by a local authority could not raise a proportionality argument under art.8, there was a consistent series of European Court of Human Rights decisions which unambiguously supported the minority view in the House of Lords cases, making it appropriate to depart from them.
Appeal dismissed. (1) The ECtHR jurisprudence established that: any person at risk of being dispossessed of his home at a local authority’s suit should in principle have the right to question the measure’s proportionality under art.8, even if his right of occupation under domestic law had ended, McCann v United Kingdom (19009/04)  2 F.L.R. 899, Cosic v Croatia (28261/06) (2011) 52 E.H.R.R. 39, Zehentner v Austria (20082/02) (2011) 52 E.H.R.R. 22, Paulic v Croatia (3572/06) andKay v United Kingdom (37341/06) (2012) 54 E.H.R.R. 30 applied; a procedure limited to considering proportionality through traditional judicial review without the court making its own factual assessment in an appropriate case was inadequate,Connors v United Kingdom (66746/01) (2005) 40 E.H.R.R. 9, McCann and Kay v UK applied; where the measure included proceedings involving more than one stage, the proceedings as a whole had to be considered to see if art.8 had been complied with, Zehentner applied; if the court concluded that it would be disproportionate to evict a person, it would be unlawful so long as that conclusion obtained. The ECtHR seemed also to have franked the view that it would only be in exceptional cases that art.8 proportionality would even arguably give a right to continued possession where the applicant had no right under domestic law to remain, McCann and Kay v UK considered (see para.45 of judgment).
The Supreme Court was not bound to follow every ECtHR decision: that would be impractical and sometimes inappropriate, as it would destroy its ability to engage in constructive dialogue with the ECtHR. However, where there was a clear and constant line of decisions whose effect was not inconsistent with some fundamental substantive or procedural aspect of United Kingdom law, and whose reasoning did not appear to overlook or misunderstand some argument or point of principle, it would be wrong for the court not to follow that line. There was no question of the ECtHR jurisprudence having such inconsistency, as shown by the minority opinions in the House of Lords and domestic law’s already having moved towards the European jurisprudence in Doherty . Therefore, if UK law was to be compatible with art.8, where a court was asked to make an order for possession of a person’s home at the suit of a local authority, the court had to have the power to assess the proportionality of making the order and, in making that assessment, to resolve any relevant factual dispute, Qazi , Kay vLambeth and Doherty not followed (paras 48-49). It was unsafe only to consider proportionality in exceptional cases: the question was always whether the eviction was a proportionate means of achieving a legitimate aim (paras 51-52). (2) It was impossible to conceive of circumstances at the stage of making a demotion order where art.8 would not be satisfied by the plain words of the relevant statute.
Greater problems arose when the court was asked to make a possession order against a demoted tenant. As art.8 required the court to consider proportionality, s.143D(2) had to be read as not excluding its power to do so, if at all possible. A court had jurisdiction under normal judicial review principles to satisfy itself that the local authority had acted reasonably when deciding to bring and continue possession proceedings. It followed that it was open to a demoted tenant to challenge the local authority’s decision on the ground that it was disproportionate under art.8; further, the ECtHR jurisprudence required the court considering such a challenge to have the power to assess any relevant facts. Accordingly, the court’s traditional review powers should be expanded to permit it to carry out that exercise. Section 143D(2) was to be read accordingly. The Human Rights Act 1998 s.7(1)(b) conferred the necessary jurisdiction on county courts as well as the High Court. Tenants could challenge possession proceedings in the proceedings themselves, even if they were in the county court, Wandsworth LBC v Winder (No.1)  A.C. 461 applied and Manchester City Council v Cochrane  1 W.L.R. 809 disapproved (paras 65-88). (3) On the facts, it had been proportionate to make the order against P.
EM (Lebanon) v Secretary of State for the Home Department  UKHL 6 (Required) Summary: The removal of a Lebanese asylum seeker and her 12-year-old son to Lebanon would give rise to a breach of the European Convention on Human Rights 1950 art.8 given that she would be compelled to transfer custody of her son to his father, who had been violent towards her and who had not seen the son since his birth; removal would so flagrantly violate their art.8 rights as to completely deny or nullify those rights. Abstract: The appellant (M) appealed against a decision (  EWCA Civ 1531,  1 F.L.R. 991 ) that her removal to Lebanon would not give rise to a breach of the European Convention on Human Rights 1950 art.8 . M, a Lebanese national, had come to the United Kingdom in 2004 with her son (S), who was now 12. She was Muslim and married in Lebanon according to Muslim rites. M divorced her husband in Lebanon because of his violence. Under the prevailing law the father retained legal custody of S, but the divorce court ruled that he should remain in M’s care until he reached the age of seven. There was unchallenged evidence before the lower courts of Islamic law as applied in Lebanon in custody cases where the husband or both parties were Muslim. Even during the seven-year period when a child was cared for by the mother, the father retained legal custody and could decide where the child lived and whether the child could travel with the mother. In the absence of the father’s consent, the transfer to him at the stipulated age was automatic. If the father were found to be unfit as a parent, the child would be passed to the paternal grandfather or some other member of the father’s extended family, not to the mother.
The evidence was that in this situation the mother might, or might not, have contact with the child. The parent with physical custody could not be compelled to send the child to the other parent’s home on visits but, if ordered by the court, had to bring the child to a place where the mother could see him or her. A custody hearing, if held in Lebanon, would not consider whether custody should remain with the mother but only the appropriateness of allowing M to have access to S during supervised visits. The Court of Appeal held that although M’s right to enjoyment of family life with her son under art.8 would be severely restricted if they were returned to Lebanon, it would not be completely denied or nullified. Appeal allowed. (1) The Attorney General had correctly set out the test to be applied when stating that it would require a flagrant breach of the relevant right, such as would completely deny or nullify the right in the destination country, R. (on the application of Ullah) v Special Adjudicator  UKHL 26,  2 A.C. 323 applied and Mamatkulov v Turkey (46827/99) (2005) 41 E.H.R.R. 25 considered. Any attempt to paraphrase the test risked causing confusion. In the context of art.8, as in most Convention contexts, the facts of the particular case were crucial. The question therefore was whether, on the particular facts of the case, the removal of M and S to Lebanon would so flagrantly violate their art.8 rights as to completely deny or nullify those rights there. The answer to that question was yes. S had never seen his father since the day he was born, nor had he had any contact with any of his father’s relatives.
Thus, realistically, the only family which existed now consisted of M and S. It was the life of that family that was in issue. It was no doubt a feature of their family life together that M rendered for S the sort of services which a mother ordinarily did render for a growing adolescent. But it would be wrong to regard the relationship between M and S as simply one in which the mother rendered services for the son. The evidence made plain that the bond between the two was one of deep love and mutual dependence. It could not be replaced by a new relationship between S and a father who had inflicted physical violence and psychological injury on M, who had been sent to prison for failing to support S, whom S had never consciously seen and towards whom S understandably felt strongly antagonistic. Nor could it be replaced by a new relationship with an unknown member or members of the father’s family. In no meaningful sense could occasional supervised visits by M to S at a place other than her home, even if ordered (and there was no guarantee that they would be ordered), be described as family life. The effect of return would be to destroy the family life of M and S as it was now lived. (2) The Court of Appeal and the courts below had been disadvantaged by the absence of representations on S’s behalf. The hearing before the House had underscored the importance of ascertaining and communicating to the court the views of a child such as S. In the great majority of cases the interests of the child, although calling for separate consideration, were unlikely to differ from those of an applicant parent. If there was a genuine conflict separate representation might be called for, but advisers should not be astute to detect a conflict where the interests of parent and child were essentially congruent.
Re G (Adoption: Unmarried Couple)  3 WLR 76
Summary: The House of Lords declared that it was unlawful for the Family Division of the High Court of Justice in Northern Ireland to reject the appellants as prospective adoptive parents on the ground only that they were not married, notwithstanding the Adoption (Northern Ireland) Order 1987 art.14. Abstract: The appellants (P and F), an unmarried couple, appealed against a decision ( NICA 20,  N.I. 251) rejecting them as prospective adoptive parents. P and F had been living together for more than 10 years and wished to adopt a 10-year-old child of whom P was the natural mother. F was not the natural father but he and P treated the child as a member of the family. P and F submitted that (1) marriage (or its absence) was a status within the meaning of the European Convention on Human Rights 1950 art.14; (2) the conditions of the Adoption (Northern Ireland) Order 1987 art.14 restricting the eligibility to be considered as adoptive parents to married couples or single people contravened their rights to respect for family life under art.8 taken in conjunction with art.14 of the Convention; (3) art.14 of the 1987 Order should not be applied by the court when it was considering whether they were eligible to be considered as adoptive parents as it was discriminatory.
Appeal allowed. (Lord Walker dissenting in part) (1) It was clear that being married was a status and therefore it must follow that not being married was also a status within the meaning of art.14. (2) The question was therefore whether unequal treatment between unmarried and married couples could be justified. The state was entitled to take the view that marriage was a very important institution and that in general it was better for children to be brought up by parents who were married to each other than by those who were not. If therefore it was rational to adopt a “bright line rule” to determine what class of people should adopt children there would be much to be said for art.14 of the 1987 Order. However to have such a rule in the present case was quite irrational, defied everyday experience, and contradicted one of the fundamental principles stated in art.9 of the 1987 Order that the court was obliged to consider whether adoption “by particular…persons” would be in the best interests of the child, Du Toit v Minister for Welfare and Population Development 13 B.H.R.C. 187 considered. (3) The question of whether unmarried couples should be allowed to adopt raised questions of social policy and where such questions admit more than one choice, the court would ordinarily regard that choice as being a matter for Parliament, but that did not mean that Parliament was entitled to discriminate in any such case; the discrimination must at least have a rational basis. In the present case it was based upon a straightforward fallacy, namely that a reasonable generalisation could be turned into an irrebuttable presumption for individual cases.
(4) No case had yet reached the European Court of Human Rights on the issue of discrimination that the present case raised, but bearing in mind recent jurisprudence in the area of sexual orientation and adoption, it seemed not at all unlikely that if the issue was raised, the European Court would hold that discrimination against a couple who wished to adopt a child on the ground that they were not married would violate art.14. The effect of EB v France (43546/02)  1 F.L.R. 850 was to overrule the case of Frette v France (36515/97)  2 F.L.R. 9 and point strongly in favour of the view that discrimination on the grounds of marital status in this area of the law was not acceptable and thus narrow the national margin of appreciation, EBand Frette considered. However, even if the European Court was to revert to its position in Frette, that should not inhibit a declaration by the UK court that art.14 of the 1987 Order was unlawful discrimination. Convention rights within the meaning of the Human Rights Act 1998 were domestic not international rights and in the interpretation of those domestic rights the UK courts had to take into account the decisions of the European Court. Thus the UK courts were not bound by such decisions. In a case where Strasbourg had deliberately declined to lay down an interpretation for all Member States, as it does when it says that the question was within the margin of appreciation, it was for the court in the UK to interpret art.8 and art.14 of the Convention and to apply the division between the decision-making powers of courts and Parliament in a way which appeared appropriate for the UK. It followed that the court was free to give what it considered to be a principled and rational interpretation to the concept of discrimination on grounds of marital status.
The court declared that notwithstanding art.14 of the 1987 Order, P and F were entitled to apply to adopt the child; it was unlawful for the Family Division of the High Court of Justice in Northern Ireland to reject P and F as prospective parents on the ground only that they were not married. R (on the application of Limbuela) v Secretary of State for the Home Department  3 WLR 1014 Summary: As soon as an asylum seeker who had been refused asylum support by the Secretary of State for the Home Department made it clear that there was an imminent prospect of a breach of his rights under the European Convention on Human Rights 1950 Art.3 because the conditions that he was having to endure were on the verge of reaching the necessary degree of severity, the secretary of state had the power under the Nationality, Immigration and Asylum Act 2002 s.55(5)(a), and a duty under the Human Rights Act 1998 s.6(1), to act to avoid it. Abstract: The appellant secretary of state appealed against the dismissal of his appeal ( EWCA Civ 540,  Q.B. 1440) against successful applications for judicial review by the respondent asylum seekers (R) granting them relief against the secretary of state’s decision not to provide them with support. R had all claimed asylum on the day of their arrival in the United Kingdom or the day after. The secretary of state had decided that R had not made their claims for asylum as soon as reasonably practicable after their arrival in the UK so that they were excluded from conventional support under the Immigration and Asylum Act 1999 Part VI by the Nationality, Immigration and Asylum Act 2002 s.55(1) . Several of R had been forced to sleep on the street as a result of receiving no support. No challenge was made to the secretary of state’s decision that asylum had not been claimed as soon as reasonably practicable. The issue was whether the secretary of state was nevertheless obliged by s.55(5)(a) of the 2002 Act to provide support for R under Part VI of the 1999 Act for the purpose of avoiding a breach of their rights under the Human Rights Act 1998 Sch.1 Part I Art.3 . Held, dismissing the appeals, that (1) the key to a proper understanding of s.55(5)(a) of the 2002 Act was its use of the word “avoid” in the phrase “avoiding a breach”.
The purpose of s.55(5)(a) was to enable the secretary of state to exercise his powers to provide support under s.4, s.95 and s.98 of the 1999 Act and accommodation under s.17 and s.24 of the 2002 Act before the ultimate state of inhuman or degrading treatment was reached. Once that stage was reached the secretary of state was at risk of being held to have acted in a way that was incompatible with the asylum seeker’s Convention rights. Section 55(5)(a) enabled the secretary of state to step in before that happened so that he could “avoid” being in breach. (2) Where the inhuman or degrading treatment or punishment resulted from acts or omissions for which the state was directly responsible, there was an absolute obligation on states to refrain from such conduct. The real issue was whether the state was properly to be regarded as responsible for the conduct that was prohibited by Art.3. Ill treatment had to maintain a minimum level of severity if it was to fall within “inhuman and degrading treatment or punishment”, Pretty v United Kingdom (2346/02)  2 F.L.R. 45 considered. Treatment was inhuman or degrading if, to a seriously detrimental extent, it denied the most basic needs of any human
being. There was no more exacting test where the treatment or punishment was the result of legitimate government policy. The decision by the secretary of state to withdraw support from someone who would otherwise qualify for support under s.95 of the 1999 Act because he was, or was likely to become, destitute, was an intentionally inflicted act for which the secretary of state was directly responsible.
He was also directly responsible for all the consequences that flowed from it, bearing in mind that asylum seekers in R’s position were prohibited from employment, R. (on the application of Q) v Secretary of State for the Home Department  EWCA Civ 364,  Q.B. 36 considered. The withdrawal of support would not in itself amount to treatment that was inhuman or degrading, but it would do so once the margin was crossed between destitution within the meaning of s.95(3) and the condition that resulted from inhuman or degrading treatment within the meaning of Art.3. The test for whether the margin was crossed was whether the treatment to which the asylum seeker was being subjected by the entire package of restrictions and deprivations that surrounded him was so severe that it could properly be described as inhuman or degrading treatment within the meaning of Art.3. There was no doubt that the threshold might be crossed if a late applicant for asylum with no means and no alternative source of support, unable to support himself was, by the deliberate action of the state, denied shelter, food or the most basic necessities of life. As soon as an asylum seeker made it clear that there was an imminent prospect of a breach of Art.3 because the conditions that he was having to endure were on the verge of reaching the necessary degree of severity, the secretary of state had the power under s.55(5)(a), and the duty under s.6(1) of the 1998 Act, to act to avoid it. In each of the instant cases there had been sufficient evidence to justify the conclusion that there was an imminent prospect that the way R were being treated by the secretary of state, in the context of the entire regime to which they were being subjected by the state, would lead to a condition that was inhuman or degrading.
Connor v UK  40 EHRR 9 (Required)
Connors v United Kingdom
Summary: The mere fact that anti social behaviour occurred on local authority gypsy sites could not, alone, justify a summary power of eviction. The existence of procedural safeguards to assess the proportionality of interference with the right to respect for the family life of gypsies and travellers was crucial and there were no features about local authority sites to excuse a requirement to have proper justification for summary eviction. Abstract: C, a gypsy, complained that the eviction of his family from a local authority run gypsy site contravened the European Convention on Human Rights 1950 Art.6 , Art.8, Art.13, Art.14 and Protocol 1 Art.1. Apart from one short absence, the family had lived on the site, which they had a licence to occupy, for 14 years. However, they were evicted after being given a final written warning about anti-social behaviour and nuisance caused to other residents by C’s relatives and visitors to the site. The notice to quit was not accompanied by reasons for the decision and a possession order was granted by the county court when C’s application for judicial review was refused. Held, upholding the complaint under Art.8, that the serious consequences of evicting the family required detailed reasons to be given. Security of tenure extended to gipsy sites and site management would not be affected by the requirement to give reasons for evicting long term residents. Furthermore, the failure to justify the eviction decision meant that the local authority had acted in breach of procedural safeguards in violation of Art.8, Chapman v United Kingdom (27238/95) (2001) 33 E.H.R.R. 18 distinguished.
R (Limbuela) v Secretary of State for the Home Department  UKHL 66 (Required) Nature of the Case:
Appeal on behalf of asylum seekers who were denied support by the Secretary of State. Refusal of support. Risk of deprivation with regard to overnight accommodation, food and other basic rights (Article 3 of the European Convention on Human Rights 1950). Summary:
The claimants in this joined action were asylum-seekers who had sought asylum after their initial entry to the UK. The defendant, Secretary of State for the Home Department, refused support under Section 55 of the Nationality, Immigration, and Asylum Act 2002 (“the Act”) with regard to accommodation.
Section 55 allowed refusal of support to asylum seekers who failed to make their claim as soon as reasonably practicable. However, Section 55(5) of the Act created an exception by providing that support should be provided if failure to do so would result in violating the asylum seeker’s human rights. Several judges awarded Mr. Adam, Mr. Limbuela and other claimants interim relief for the case duration, and the issue was subsequently adjudicated by the Court of Appeal and by the House of Lords. The Law Lords applied the standard set out in Pretty v. United Kingdom  35 EHRR 1 to determine whether the refusal of support would rise to a violation of Article 3 of the European Convention on Human Rights 1950, which prohibits torture or inhuman or degrading treatment or punishment of individuals. The court noted that asylum seekers were prevented from working while their application was being processed, and concluded that a failure to provide support would therefore expose the claimants to the risk of being homeless or without access to adequate food, creating an Article 3 violation. The Law Lords granted relief under §55 (5) of the Act. Keywords: R. (Adam and Limbuela) v. Secretary of State for the Home Department, Food, Health, Housing, Refugee, Asylum, Seekers, Displaced, Person, Right Enforcement of the Decision and Outcomes:
Asylum seekers who apply late may now receive support under Section 55 of the Nationality, Immigration, and Asylum Act 2002 if they can demonstrate that failure to provide support would expose them to a real risk of destitution. The decision in Adam has therefore ensured that many asylum seekers receive support that they would not otherwise have received. Significance of the Case:
The significance of this case lies in the recognition by the UK House of Lords that a failure by the state to provide social support which exposes an individual to a real risk of becoming destitute will in certain circumstances constitute ‘inhuman and degrading treatment’, and therefore will be contrary to Article 3 of the ECHR. It is an interesting example of how a civil and political right can be used as the basis to bring a claim to enforce socio-economic rights.
Ambrose v Harris  UKSC 43 (Required)
Summary: When considering a person’s rights under the European Convention on Human Rights 1950 art.6 to access to a lawyer prior to police questioning, the Supreme Court declined to extend the principle established by Salduz v Turkey (36391/02) (2009) 49 E.H.R.R. 19 to questioning which took place before a person was detained at a police station. Abstract: The court was required to rule on references from the High Court of Justiciary regarding whether the Crown’s reliance on evidence obtained from police questioning prior to an individual having had access to legal advice breached his rights under the European Convention on Human Rights 1950 art.6. In Cadder (Peter) v HM Advocate  UKSC 43,  1 W.L.R. 2601, the instant court held that the Crown’s reliance on admissions made by an accused without legal advice had given rise to a breach of his right to a fair trial, having regard to the decision of the European Court of Human Rights in Salduz v Turkey (36391/02) (2009) 49 E.H.R.R. 19. The court held that the leading of and reliance on such evidence was a breach of the accused’s rights under art.6(3)(c) of the Convention, read in conjunction with art.6(1). InCadder and Salduz , the evidence had been obtained when the appellants were detained at a police station. The instant references concerned incriminating answers given to questions put by the police otherwise than by questioning at a police station.
The issue to be determined was whether the right of access to a lawyer prior to police questioning, as established in Salduz , applied only to questioning which had taken place when the person had been taken into police custody. The Lord Advocate submitted that the features which determined whether an individual had a right to legal advice under art.6, in accordance with the principle in Salduz , were that he had to be a suspect, in police custody, and the subject of police interrogation. Judgment accordingly. (1) (Lord Kerr dissenting) In principle, the line as to when access to legal advice had to be provided before a person was questioned should be drawn as from the moment that he was taken into police custody. The starting point when considering whether the person’s Convention rights had been breached was to identify the moment at which he was charged for the purposes of art.6(1). The test was whether the person’s situation had been substantially affected, Deweer v Belgium (A/35)  E.C.C. 169 applied. His position would have been substantially affected as soon as the suspicion against him was being seriously investigated and the prosecution case compiled. It was obvious that the test would be satisfied when the individual had been detained and taken into custody and it had to also be taken to have been satisfied when he was subjected to the initial stages of police interrogation. That was because an initial failure to comply with the provisions of art.6 at that stage might seriously prejudice his right to a fair trial. The moment at which art.6 was engaged when the individual was questioned by the police required very sensitive handling if protection was to be given to the right not to incriminate oneself. The mere fact that the individual had been cautioned would not carry the necessary implication.
The moment at which he was no longer a potential witness but had become a suspect provided as good a guide as any as to when he should be taken to have been charged for the purpose of art.6(1). The ECtHR had not made it clear that a person who had become a suspect and was not in custody had, as a rule, to have access to a lawyer while being questioned, Zaichenko v Russia (39660/02) considered. That would be one of the circumstances to be taken into account when considering whether the individual was deprived of a fair hearing but no more than that. The fact that incriminating statements had been made without access to a lawyer would not of itself mean that the person’s rights had been irretrievably prejudiced. The phrase “police interrogation” was extremely fact-sensitive and it was not necessary, if access to a lawyer was needed for the right to a fair trial to remain practical and effective, that the questioning should amount to an “interrogation” in the formal sense. It need not be a detailed and sustained course of questioning. Questions that the police needed to put to decide what action to take with respect to the person they were interviewing were unlikely to fall into that category but would where the police had reason to think that they might well elicit an incriminating response. In the instant cases, it would be to go further than the ECtHR had to hold that the individuals concerned were entitled to findings that the evidence was admissible or inadmissible because, as a rule, access to a lawyer should have been provided when they were being questioned, Cadder and Salduz considered (see paras 55, 62-65, 67-72 of judgment). (2) (Per Lord Kerr) In the absence of a declaration by the ECtHR regarding the validity of a claim to a Convention right, it was not open to the English courts to adopt an attitude of agnosticism and refrain from recognising such a right simply because the ECtHR had not made such a declaration. It was the courts’ duty to address those issues when they arose, whether or not there was authoritative guidance from the ECtHR (paras 128-130).
R (on the application of Marper) v Chief Constable of South Yorkshire  EWHC 478 Summary: The retention of fingerprints and DNA samples that was permitted by the Criminal Justice and Police Act 2001 s.82 did not infringe the right of those affected to respect for their private life under the Human Rights Act 1998 Sch.1 Part I Art.8. Abstract: S sought judicial review of the Chief Constable’s decision to retain fingerprints and DNA samples taken from him in the course of a criminal investigation. Following S’s acquittal on a charge of attempted robbery, his solicitors had requested the destruction of the samples taken by the police. S argued that the statutory authority permitting retention namely, the Police and Criminal Evidence Act 1984 s.64(1A) , as amended by the Criminal Justice and Police Act 2001 s.82was incompatible with the right to respect for private life under the Human Rights Act 1998 Sch.1 Part I Art.8 . Held, refusing the application, that s.64(1A) of the 1984 Act was compatible with Art.8 since any interference with S’s Art.8 rights was justified under the Art.8(2) exception. The section, as amended, was not lacking in certainty or clarity and thus, the decision to retain was “in accordance with the law”. Moreover, in the light of a pressing social need, the interference was “necessary in a democratic society for the prevention of disorder or crime”. The restriction corresponded to that social need and was proportionate.
R (on the application of Gillan) v Commissioner of Police of the Metropolis  UKHL 12 Summary: The stop and search regime in the Terrorism Act 2000 did not give rise to violations of the European Convention on Human Rights 1950 . Abstract: The appellant (G) appealed against a decision of the Court of Appeal that the “stop and search” provisions in the Terrorism Act 2000 s.44 were not unlawful. G, a student, had been stopped and searched under s.44 when he came to London on September 9, 2003 to protest against an arms fair being held in east London. The Assistant Commissioner of the Metropolitan Police had given an authorisation under s.44(4) on August 13.
It covered the whole of the Metropolitan Police District and was expressed to have effect for 28 days. Such authorisations had been made continuously for successive periods since s.44 had come into force in February 2001. G argued that (1) s.44(3) should be interpreted as permitting an authorisation to be made only if the decision maker had reasonable grounds for considering that the powers were necessary and suitable, in all the circumstances, for the prevention of terrorism; (2) the authorisation was excessive in respect of its geographical coverage; (3) the successive authorisations had in effect authorised a continuous ban throughout the London area; (4) a person stopped and searched was deprived of his liberty in breach of the Human Rights Act 1998 Sch.1 Part I Art.5 ; (5) the exercise of the power to stop and search involved a breach of Art.8(1); (6) the power to stop and search infringed the rights to freedom of expression and freedom of assembly under Art.10 and Art.11 respectively; (7) for the purposes of the European Convention on Human Rights 1950 , the power to stop and search was not “prescribed by law” or “in accordance with the law”. Held, dismissing the appeals, that (1) the word “expedient” in s.44(3) had a meaning quite distinct from “necessary”. It was true that s.45(1)(b), in dispensing with the condition of reasonable suspicion, departed from the normal rule applicable where a constable exercised a power to stop and search, so that one would incline to give “expedient” a meaning no wider than the context required.
But examination of the statutory context showed that the authorisation and exercise of the power were very closely regulated, leaving no room for the inference that Parliament had not meant what it said. There was every indication that Parliament had appreciated the significance of the power that it was conferring but thought it an appropriate measure to protect the public against the grave risks posed by terrorism, provided the power was subject to effective constraints. The legislation embodied a series of such constraints. (2) The authorisation was not excessive in respect of its geographical coverage. The first respondent commissioner and the second respondent secretary of state had shown that they had made considered and informed evaluations of the terrorist threat. (3) The authorisations and subsequent confirmations complied with the letter of the statute, and the evidence contradicted the inference of a routine bureaucratic exercise. In the circumstances, there was no material to justify the conclusion that the authorisation of August 13 or the subsequent confirmation were unlawful. (4) The power to stop and search did not involve a deprivation of liberty under Art.5.
The procedure would ordinarily be relatively brief, and the person stopped would not be arrested, handcuffed, confined or removed to any different place. In the absence of special circumstances, such a person should not be regarded as being detained in the sense of being confined or kept in custody; he was more properly to be regarded as being detained in the sense of being kept from proceeding or kept waiting, Guzzardi v Italy (A/39) (1981) 3 E.H.R.R. 333applied. In any event, assuming the detention was lawful, the respondents could rely on the exception in Art.5. (5) It was doubtful whether an ordinary superficial search could be said to show a lack of respect for private life. It was clear from Convention jurisprudence that intrusions had to reach a certain level of seriousness to engage the operation of the Convention. In any event, the respondents could rely on the exception in Art.8(2). (6) It was hard to conceive of circumstances in which the power to stop and search, properly exercised, could give rise to an infringement of Art.10 or Art.11. If it did, it was likely that the restriction would fall within the heads of justification in Art.10(2) and Art.11(2). (7) The lawfulness requirement in the Convention addressed supremely important features of the rule of law.
The exercise of power by public officials, as it affected members of the public, had to be governed by clear and publicly accessible rules of law. The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred. That was what, in the instant context, was meant by arbitrariness, which was the antithesis of legality. That was the test that any interference with or derogation from a Convention right had to meet if a violation was to be avoided. The stop and search regime did meet that test. The 2000 Act informed the public that the powers were, if duly authorised and confirmed, available. It defined and limited the powers with considerable precision. Anyone stopped and searched had to be told, by the constable, all he needed to know. In exercising the power, the constable was not free to act arbitrarily, and would be open to a civil suit if he did.
S v UK (App nos 30562/04 and 30566/04)
Summary: The blanket and indiscriminate nature of the powers of retention of the fingerprint and DNA material of any person suspected but not convicted of a criminal offence was a disproportionate interference with the person’s right to respect for private life and could not be regarded as necessary in a democratic society. Abstract: The applicants (S and M) complained that the retention by the authorities of their fingerprints, cellular samples and DNA profiles after criminal proceedings against them had respectively resulted in acquittal or been discontinued violated their rights under the European Convention on Human Rights 1950 art.8. S and M had both had their fingerprints and DNA samples taken after S had been arrested and charged with attempted robbery and M was charged with harassment of his partner. S was subsequently acquitted and the proceedings against M were discontinued. Each applicant asked for his fingerprints and DNA samples to be destroyed, but in each case the police refused. S and M applied unsuccessfully for judicial review and their appeals to the Court of Appeal and the House of Lords were dismissed, upholding complaint from R. (on the application of S) v Chief Constable of South Yorkshire  UKHL 39,  1 W.L.R. 2196. S and M submitted that (1) the retention of their fingerprints, cellular samples and DNA profiles interfered with their right to respect for private life as they were crucially linked to their individual identity and concerned a type of personal information that they were entitled to keep within their control; (2) the retention of fingerprints, cellular samples and DNA profiles were not justified under art.8 because the purposes for which the retention could be justified were vague and open to abuse.
They further maintained that the retention was disproportionate because of its blanket nature, irrespective of the offences involved and the particular circumstances of the alleged offender. Complaint upheld. (1) Given the nature of personal information contained in cellular samples, their retention per se had to be regarded as interfering with the right to respect for the private lives of the individuals concerned. DNA profiles contained substantial amounts of unique personal data and while that information could be considered objective and irrefutable, their processing through automated means allowed the authorities to go well beyond neutral identification. Whilst fingerprints did not contain as much information as cellular samples or DNA profiles, they too contained unique information about the individual concerned, allowing his or her identification with precision in a wide range of circumstances, and were thus capable of affecting his or her private life. Retention of that information without the consent of the individual concerned could not be regarded as neutral or insignificant. (2) The retention of the fingerprints, cellular samples and DNA profiles had a clear basis in domestic law and pursued a legitimate aim. However, it failed to achieve a fair balance between the respective public and private interests. The power of retention was of a blanket and indiscriminate nature, capable of application irrespective of the nature or gravity of the offence, or the personal circumstances of the suspected offender. The retention was of unlimited duration and there existed only limited possibilities for an acquitted individual to have the data destroyed.
Further, there was no mechanism for independent scrutiny of the decision-making process to retain the data. The mere retention and storing of personal data by public authorities was to be regarded as having a direct impact on the private life of the individual concerned, regardless of whether subsequent use was made of the data. A particular concern was the risk of stigmatisation, in that innocent individuals were treated in the same way as convicted persons, which raised an issue as to their perception of the presumption of innocence. Having regard to the obligation imposed by the Police and Criminal Evidence Act 1984 s.64(3) to destroy the fingerprints and samples of volunteers at their request, there would have to be weighty reasons to justify such a difference in treatment of persons such as S and M compared with that of other unconvicted people. The retention of data in the case of minors was especially harmful, given their special situation and the importance of their development and integration in society. Accordingly, there had been a disproportionate interference with the rights of S and M under art.8.
Gillan and Quinton v UK (App no 4158/05)
Summary: Police powers under anti-terrorism legislation that authorised, and provided a wide discretion to execute, the stop and search of individuals in public without the need for reasonable suspicion of wrongdoing were neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse, and violated the European Convention on Human Rights 1950 art.8. Abstract: The complainants (G and Q) complained that their having been stopped and searched by the police under the Terrorism Act 2000 s.44 violated their right to respect for their private life under the European Convention on Human Rights 1950 art.8. G had been stopped on his way to joining a demonstration against an arms fair. He was detained for 20 minutes and searched. Q was a journalist who was going to film the protest. She was detained for half an hour, searched and told to stop filming. The High Court dismissed their application for judicial review of the stop-and-search powers used against them. The Court of Appeal and the House of Lords dismissed their appeals. Complaints upheld. (1) The use of the coercive powers conferred by the 2000 Act to require an individual to submit to a detailed search of his person, his clothing and his personal belongings amounted to a clear interference with the right to respect for private life. Although the search was undertaken in a public place that did not mean that art.8 was inapplicable.
Indeed, the public nature of the search might, in certain cases, compound the seriousness of the interference because of an element of humiliation and embarrassment. Items such as bags, wallets, notebooks and diaries could, moreover, contain personal information which the owner might feel uncomfortable about having exposed to the view of his companions or the wider public. Accordingly, the searching of G and Q constituted an interference with their right to respect for private life. (2) Such an interference could only be justified under art.8(2) if it was, among other things, in accordance with the law,Liberty v United Kingdom (58243/00) (2009) 48 E.H.R.R. 1 applied. To be in accordance with the law, the impugned measure had to have some basis in domestic law and also be compatible with the rule of law. The domestic law had thus to be adequately accessible and foreseeable, and to meet those requirements it had to afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law for a legal discretion granted to the executive to be expressed in terms of an unfettered power.
Consequently, the law had to indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise, Rotaru v Romania (28341/95) 8 B.H.R.C. 449, Hasan v Bulgaria (30985/96) (2002) 34 E.H.R.R. 55 and Maestri v Italy (39748/98) (2004) 39 E.H.R.R. 38 applied. The power in question in the instant case had a basis in domestic law, namely s.44 to s.47 of the 2000 Act. However, the safeguards provided by domestic law had not been demonstrated to constitute a real curb on the wide powers afforded to the executive so as to offer the individual adequate protection against arbitrary interference. Of particular concern was the breadth of the discretion conferred on the individual police officer. The officer’s decision to stop and search would be based exclusively on his professional intuition. Not only was it unnecessary for him to demonstrate the existence of any reasonable suspicion, he was not required even subjectively to suspect anything about the person stopped and searched. There was a clear risk of arbitrariness in the grant of such a broad discretion to the police officer. The powers were not therefore in accordance with the law and it followed that there had been a violation of art.8.
RB (Algeria) v Secretary of State for the Home Department  2 WLR 512 Summary: Before the deportation of an alien would be capable of violating the European Convention on Human Rights 1950 art.6 there must be substantial grounds for believing that there was a real risk that there would be a fundamental breach of his right to a fair trial, and that that breach would lead to a miscarriage of justice that itself constituted a flagrant violation of his fundamental rights. Abstract: The House of Lords was required to determine joined appeals against decisions of the Court of Appeal ( MT (Algeria) v Secretary of State for the Home Department  EWCA Civ 808,  Q.B. 533 and OO (Jordan) vSecretary of State for the Home Department  EWCA Civ 290,  3 W.L.R. 798 ) on the lawfulness of deporting the appellants (B, U and O). B and U were Algerians, and O was Jordanian. The secretary of state had ordered their deportation on grounds of national security. They claimed that deportation would violate their rights under the European Convention on Human Rights 1950 art.3 because there was a real risk they would be tortured by the authorities on their return.
O, who was likely to be retried in Jordan for terrorist offences, also claimed that he would be deprived of his liberty by unreasonably lengthy detention incommunicado pending trial, and would not receive a fair trial, contrary to art.6 , because the Jordanian military court which tried him would not be independent of the government and would be likely to receive the evidence of witnesses who had been tortured. The appellants’ appeals to the Special Immigration Appeals Commission (SIAC) were dismissed. The Court of Appeal affirmed the SIAC’s decisions under art.3, but upheld O’s appeal on the ground that evidence obtained by torture was likely to be used against him at his trial. The issues for determination were whether (i) compatibility with the Convention was itself a question of law, so that on each appeal the Court of Appeal had an unrestricted jurisdiction to review the conclusion reached by the SIAC; (ii) the SIAC could rely on “closed material” when considering the issue of safety on return; (iii) individual assurances by a receiving state that the deportee would not face a real risk of inhuman treatment could be relied upon where there was a pattern of human rights violations in thatstate; (iv) O’s deportation to face trial in Jordan constituted a flagrant denial of his rights under art.6. Appeals allowed in part. (1) There was nothing in the Convention which prevented the United Kingdom from according only a limited right of appeal, even if the issue involved a Convention right.
The Court of Appeal had no general power to review the SIAC’s conclusions that the facts it had found did not amount to a real risk of a flagrant breach of the relevant Convention rights. The SIAC’s conclusions could only be attacked if they were conclusions that no reasonable tribunal, properly directed, could have reached, Saadi v Italy (37201/06) (2009) 49 E.H.R.R. 30 and Huang v Secretary of State for the Home Department  UKHL 11,  2 A.C. 167 considered. (2) Where safety on return was in issue, it was not likely to be critically important for the special advocate advancing the case of the deportee to obtain input from him in relation to the evidence which the receiving state wished to remain closed. The deportee would usually be aware of the information personal to him that bore on the question of whether he would be safe on his return. No real comparison could be drawn with the position of a person who had been made subject to a control order, Secretary of State for the HomeDepartment v MB  UKHL 46,  1 A.C. 440 considered. The use of closed material in relation to the issue of safety on return would not necessarily render the process unfair or in breach of the principles of legality, Chahal v United Kingdom (22414/93) (1997) 23 E.H.R.R. 413 considered. B, U and O had not been denied a fair trial by reason of the use of closed material.
(3) There was no principle that assurances must eliminate all risk of inhuman treatment before they could be relied upon. However, there was an abundance of material which supported the proposition that assurances should be treated with scepticism if they were given by a country where inhuman treatment by state agents was endemic. The issue of whether the assurances given in the instant case obviated the risk was a question of fact for the SIAC. The only ground upon which such conclusions could be attacked on an appeal restricted to questions of law was irrationality. The SIAC’s conclusions in relation to art.3 could not be described as irrational. (4) Before the deportation of an alien would be capable of violating art.6, there must be substantial grounds for believing that there was a real risk that there would be a fundamental breach of his right to a fair trial, and that that breach would lead to a miscarriage of justice that itself constituted a flagrant violation of his fundamental rights, Mamatkulo v v Turkey (46827/99) (2005) 41 E.H.R.R. 25 and Bader v Sweden (13284/04) (2008) 46 E.H.R.R. 13 considered. The issue before the SIAC was whether there were reasonable grounds for believing that, if O were deported to Jordan, the trial he would face there would have defects of such significance as fundamentally to destroy the fairness of the trial, or to amount to a total denial of the right to a fair trial. The SIAC concluded that the deficiencies it had identified did not meet that exacting test. It did not err in law in so finding. There was no authority for a rule that, in the context of the application of art.6 to a foreign trial, the risk of the use of evidence obtained by torture necessarily amounted to a flagrant denial of justice.
Abu Qatada v UK (App no 8139/09)
Summary: A terrorist suspect’s deportation from the United Kingdom to Jordan, subject to assurances given in a memorandum of understanding that he would be treated consistently with the UK’s obligations under the European Convention on Human Rights, did not violate art.3 or art.5 of the Convention. However, as there remained a real risk of the use at trial of evidence obtained by torture, there was a real risk of a flagrant denial of justice, meaning deportation would violate art.6. Abstract: The applicant (O) alleged that his rights under the European Convention on Human Rights would be infringed if the United Kingdom deported him to Jordan. O had been born in Jordan. He obtained UK asylum having alleged detention and torture in Jordan. He received convictions in absentia in Jordan relating to conspiracy to cause explosions. O claimed the evidence against him had been obtained through torture of his co-defendants.
The UK Government considered that the Convention precluded deporting terrorist suspects to Jordan, and therefore negotiated a memorandum of understanding with Jordan. Jordan gave assurances that deportees would be treated consistently with the UK’s Convention obligations, and a Jordanian monitoring group (M) was appointed to visit deportees. The UK ordered O’s deportation. O appealed to the Special Immigration Appeals Commission (SIAC), which held that deportation was compatible with the Convention. O argued that deportation would breach his rights under art.3, art.5 and art.6 and that SIAC’s consideration of closed evidence breached art.13. Complaint upheld in part. (1) The court’s task was not to rule upon the propriety of seeking assurances but to examine whether assurances in particular cases removed real risk of ill-treatment. In examining whether an applicant faced ill-treatment, the court would consider human rights in the country concerned and the applicant’s characteristics. Where assurances were provided, the court considered whether the general human rights situation excluded accepting assurances.
That would rarely be the case. Usually, the court would assess the assurances, considering: whether their terms were disclosed to the court; whether they were specific or general; whether those giving them could bind the state; if central government issued them, whether local authorities would comply; whether they concerned legal or illegal treatment in the receiving state; whether a Convention state gave them; the strength of bilateral relations between sending and receiving states; whether compliance could be verified; whether the receiving state provided effective protection against torture; the applicant’s previous treatment in the receiving state; and whether the assurances had been examined by the sending state’s courts (see paras 186-189 of judgment). (2) Without assurances, O faced a real risk of ill-treatment if deported. However, there was no absolute rule that states not complying with multilateral obligations could not comply with bilateral assurances, and no prohibition on seeking assurances when there was systematic ill-treatment in receiving states. Jordan’s general situation did not exclude accepting assurances. The memorandum was specific and comprehensive, directly addressing O’s Convention rights, and had withstood SIAC examination. Jordan’s UK relations were strong, and officials capable of binding the state had approved the assurances. O’s high profile was unlikely to cause greater risk; instead, Jordan was more likely to ensure proper treatment, knowing ill-treatment would damage international relations. The memorandum could have required O’s appearance before a civilian judge, rather than a military prosecutor.
However, O could have a lawyer during appearances before the prosecutor. Although the improbability of O being represented during interrogation caused concern, the memorandum’s safeguards and monitoring arrangements substantially reduced the risk. It would be incompatible with the memorandum to expose O to ill-treatment by detention at undisclosed locations or rendition to a third state. As an assurance against illegal behaviour, the memorandum should be viewed more sceptically than undertakings not to do something domestic law permitted; SIAC had exercised appropriate caution. Further, although M lacked the expertise, resources or status of other bodies, the fact of monitoring was important. M could verify compliance: it had independence and monitors could visit O. O’s deportation would not violate art.3 (paras 192-207). (3) SIAC’s procedures satisfied art.13. No enhanced requirement for transparency and procedural fairness applied where assurances were relied on. As in all art.3 cases, independent, rigorous scrutiny was required. Article 13 did not prevent courts receiving closed evidence, provided applicants’ interests were protected. SIAC was independent and could have quashed the deportation order had it found real risk of ill-treatment. Further, nothing indicated that, by receiving closed evidence, SIAC had failed to scrutinise O’s claim or unacceptably risked an incorrect result. Had O seen that evidence, nothing suggested that he would have challenged it where his special advocates could not (paras 219-225). (4) Article 5 could apply to expulsion cases: contracting states violated art.5 by deporting to states where there was real risk of flagrant breaches of art.5. However, a high threshold applied. There would be no risk in respect of O’s pre-trial detention.
Jordan intended to retry O and had to do so within 50 days of detention, falling short of the detention required for flagrant breach (paras 233-235). (5) Issues might exceptionally be raised under art.6 where fugitives had suffered or risked suffering a flagrant denial of justice. The test was stringent: fair trial principles had to be breached so fundamentally as to nullify the art.6 right. Use of evidence obtained by torture was a flagrant denial of justice. Its prohibition was fundamental, Gafgen v Germany (22978/05) (2011) 52 E.H.R.R. 1 applied. The evidence gave reason to conclude that the co-defendants had been tortured. It would be unfair to impose on O any higher burden of proof than showing real risk of the use of torture evidence: due regard should be had to the special difficulties in proving torture allegations. There was a high probability of the evidence’s admission. There was therefore a real risk of a flagrant denial of justice. O’s deportation would violate art.6 (paras 258-282).
Secretary of State for the Home Department v F  UKHL 28 Summary: A person subject to a non-derogating control order had to be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Where the open material relied on consisted purely of general assertions and the case against the “controlee” was based solely or to a decisive degree on closed materials, the requirements of a fair trial would not be satisfied, however cogent the case based on the closed materials might be. Abstract: In conjoined appeals against a decision of the Court of Appeal ( EWCA Civ 1148,  2 W.L.R. 423), the House had to consider whether the procedure that had resulted in the making of non-derogating control orders against the three appellants satisfied their right to a fair hearing under the European Convention on Human Rights 1950 art.6. The appellants argued that their art.6 rights had been violated by reason of the reliance by the judges making the orders on material received in closed hearing the nature of which had not been disclosed to them. Appeals allowed. (1) In A v United Kingdom (3455/05) (2009) 49 E.H.R.R. 29, the European Court of Human Rights had provided a definitive resolution of the issue in the appeals. That decision established that the “controlee” had to be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations.
Provided that this requirement was satisfied, there could be a fair trial notwithstanding that the controlee was not provided with the detail or the sources of the evidence forming the basis of the allegations. Where, however, the open material consisted purely of general assertions and the case against the controlee was based solely or to a decisive degree on closed materials, the requirements of a fair trial would not be satisfied, however cogent the case based on the closed materials might be. There were strong policy considerations that supported a rule that a trial procedure could never be considered fair if a party to it was kept in ignorance of the case against him. The first was that there would be many cases where it was impossible for the court to be confident that disclosure would make no difference. Reasonable suspicion might be established on grounds that established an overwhelming case of involvement in terrorism-related activity but, because the threshold was so low, reasonable suspicion might also be founded on misinterpretation of facts in respect of which the controlee was in a position to put forward an innocent explanation. A system that relied on the judge to distinguish between the two was not satisfactory, however able and experienced the judge. Further, there would be feelings of resentment if a party to legal proceedings was placed in a position where it was impossible for him to influence the result. Resentment would understandably be felt, not merely by the controlee but by his family and friends, if sanctions were imposed on him on grounds that led to his being suspected of involvement in terrorism without any proper explanation of what those grounds were.
Indeed, if the wider public were to have confidence in the justice system, they needed to be able to see that justice was done rather than being asked to take it on trust. In none of the instant cases had the disclosure required by the decision of the Strasbourg court been given. The appropriate course was to remit each case to the relevant judge for further consideration, A v United Kingdom applied. (2) In A v United Kingdom , the Strasbourg court had nonetheless recognised that, where the interests of national security were concerned in the context of combating terrorism, it might be acceptable not to disclose the source of evidence that founded the grounds of suspecting that a person had been involved in terrorism-related activities. (3) There was good reason to allow to stand the reading down of the Prevention of Terrorism Act 2005 provided for in the decision of the House in Secretary of State for the Home Department v MB  UKHL 46,  1 A.C. 440, MB considered.
A v UK (App no 3455/05)
Summary: When a terrorism suspect challenged his certification and detention before the Special Immigration Appeals Commission, if the open material consisted purely of general assertions and the Commission’s decision to uphold the certification and maintain the detention was based solely or to a decisive degree on closed material, the procedural requirements of the European Convention on Human Rights 1950 art.5(4) would not be satisfied. Abstract: The complainants (C), who had been detained without trial by the respondent state, complained of breaches of the European Convention on Human Rights 1950 art.3, art.5(1), art.5(4), art.13 and art.14. C were 11 foreign nationals living in the United Kingdom whom the government suspected of being international terrorists after the attacks on the United States in 2001. However, the government considered their deportation would be contrary to art.3 and their prosecution would not be possible. Accepting that their extended detention under the Anti-terrorism, Crime and Security Act 2001 might be inconsistent with art.5(1), the government availed itself of the derogation under art.15(1). C were then certified under s.21 of the Act and detained in prison.
They appealed to the Special Immigration Appeals Commission, which examined open and closed material. Although the majority of the House of Lords found there was a public emergency threatening the life of the nation under art.15(1), it quashed the derogation order and declared that s.23 of the Act was incompatible with art.5(1) and art.14 insofar as it was disproportionate and permitted discriminatory detention of suspected international terrorists who were non-nationals. However, the declaration being non-binding, C remained in detention until they either elected to leave the UK, were released on bail on conditions amounting to house arrest, or were released and made subject to control orders under the Prevention of Terrorism Act 2005. C submitted that (1) contrary to art.3, they had suffered an intense degree of anguish due to their indeterminate detention in high security conditions; (2) contrary to art.13, they were denied an effective remedy for their art.3 complaints; (3) contrary to art.5(1), (a) their detention was unlawful; (b) the derogation was invalid because an inchoate fear of a terrorist attack was not sufficient for a “public emergency threatening the life of the nation” under art.15(1); and (c) the enactment of Pt.4 of the 2001 Act and the power contained therein to detain foreign nationals indeterminately without charge was not “strictly required by the exigencies of the situation” under art.15(1); (4) contrary to art.5(4), the proceedings to challenge the lawfulness of their detention involved closed material. Complaints upheld in part. (1) Ill-treatment had to attain a minimum level of severity if it was to fall within the scope of art.3. The imposition of an irreducible life sentence on an adult, without any prospect of release, might raise an issue under art.3, but national law which afforded the possibility of review of a life sentence would be sufficient. In the instant case, whilst the uncertainty regarding C’s position and the fear of indefinite detention must undoubtedly have caused them great anxiety and distress, sufficient to affect the mental health of some of them, they were not without any prospect or hope of release.
They were able to bring proceedings to challenge the legality of the detention scheme under the 2001 Act and the decision to certify; and the Commission was required by statute to review the continuing case for detention every six months. Therefore, C’s situation was not comparable to an irreducible life sentence capable of giving rise to an issue under art.3, Kafkaris v Cyprus (21906/04) (2009) 49 E.H.R.R. 35distinguished. Their detention did not reach the high threshold of inhuman and degrading treatment. (2) Civil and administrative law remedies were available to C had they wished to complain about their conditions of detention. In regard to the argument that the detention scheme in Pt.4 of the 2001 Act gave rise to a breach of art.3, art.13 did not guarantee a remedy allowing a challenge to primary legislation before a national authority on the ground of being contrary to the Convention, James v United Kingdom (A/98) (1986) 8 E.H.R.R. 123 and Roche v United Kingdom (32555/96) (2006) 42 E.H.R.R. 30 applied. (3)(a) Although the government contended that C’s detention was justified under art.5(1)(f), any deprivation of liberty would be justified only for as long as deportation or extradition proceedings were in progress. If such proceedings were not prosecuted with due diligence, the detention would cease to be permissible under art.5(1)(f), Chahal v United Kingdom (22414/93) (1997) 23 E.H.R.R. 413 applied. The government’s policy of keeping the possibility of deporting C under review was not sufficiently certain or determinative to amount to action taken with a view to deportation, under art.5(1)(f). (b) The national authorities enjoyed a wide margin of appreciation under art.15 in assessing whether the life of their nation was threatened by a public emergency.
Weight had, therefore, to attach to the judgment of the UK government, Parliament and national courts. Accordingly, the view of the majority of the House of Lords that there was a public emergency threatening the life of the nation was accepted. (c) The derogating measures were disproportionate in that they discriminated unjustifiably between nationals and non-nationals. Therefore, there had been a violation of art.5(1). (4) In view of the dramatic impact of the lengthy deprivation of liberty on C’s fundamental rights, art.5(4) had to import substantially the same fair trial guarantees as art.6(1) in its criminal aspect, Garcia Alva v Germany (23541/94) (2003) 37 E.H.R.R. 12 applied. It was essential that as much information about the allegations and evidence against C was disclosed as was possible without compromising national security or the safety of others. Where full disclosure was not possible, art.5(4) required that the difficulties thereby caused were counterbalanced in such a way that C still had the possibility to effectively challenge the allegations. The special advocate could perform an important role in counterbalancing the lack of full disclosure and the lack of an open adversarial hearing, but he could not usefully perform that function unless the detainee was provided with sufficient information about the allegations to enable him to effectively instruct the special advocate. Where the evidence was to a large extent disclosed and the open material played the predominant role in the determination, the detainee was not denied an opportunity to effectively challenge the reasonableness of the government’s suspicions about him.
In other cases, even where all or most of the underlying evidence remained undisclosed, if the allegations contained in the open material were sufficiently specific, it would be possible for the detainee to provide his representatives and the special advocate with information with which to refute them, without his having to know the detail or sources of the evidence which formed the basis of the allegations. Where, however, the open material consisted purely of general assertions and the Commission’s decision to uphold the certification and maintain the detention was based solely or to a decisive degree on closed material, the procedural requirements of art.5(4) would not be satisfied. In the instant case, the open material against five detainees included detailed allegations and so their rights under art.5(4) were not violated. However, the key evidence supporting the allegations against four others was largely to be found in the closed material and so they were not in a position to effectively challenge the allegations against them and their art.5(4) rights were violated. (5) It was not necessary to separately consider the alleged violations of art.5(1) in conjunction with art.14 or art.5(4) in conjunction with art.13.