Human Rights Act Cases

RE S and Re W [2002] UKHL

• Issue: whether the Children Act 1989 was compatible with Article 6 and 8 ECHR given that once a care order was made, court has no continuing supervisory role over how a local authority implements the care plan

• Held: Children Act 1989 deliberately gives exclusive responsibility to local authorities once a care order is made - CA exceeded its constitutional role by effectively rewriting the statute (cannot override clear Parliamentary intention - Statutory sceheme is not incompatible with the ECHR

• Shows that s3 HRA cannot be used to rewrite the statutory structure of the Children Act

R v Secretary of State for the Home Deparment [2003] 1 AC 837

• Anderson convicted of two murders - mandatory life sentence

• Under s.29 Crime Sentences Act 1997 the Home Secretary set the minimum tariff

• Home secretary set a longer tariff than recommended by trial judge

• Anderson argued this violated Article 6 (right to a fair hearing)

• Held: tariff fixing = judicial function, must be carried out by an independent and impartial body which a poltiician is not constitutionally suited for - declaration of incompatability (s.4) was made

Bellinger v Bellinger [2003]

• Transgender woman challenged s11 of Matrimonial Causes Act

• Marriage void if parties not respectively male and female - trans women should be included in definition of ‘female’

• Breach of Article 8, right to privacy and family life

• Courts stated that a change in the law regarding the interpretation of what a female is, it would interfere with the traditional concept of marriage and give rise to complex and sensitive issues, a knock on effect on other legislations - decision should be left to Parliament

• Section 4 declaration of incompatability issued rather than section 3

Ghaidan v Godin Mendosa 2004

• Godin Mendoza lived with his same sex partner in a flat held under a statutory tenancy governed by the Rent Act 1977

• When his partner died, the landlord sought possession arguing the Act only alloeed succession by a spouse as heterosexual only

• Godin-Mendoza argued this was discriminatory under Article 8 and 14 ECHR and that the Act must be interpreted compatibly via s.3 HRA 1998

• Held: rent act must be read as if it included same sex partners, court used s3 HRA to read in words necessary to avoid discrimination

R (Nicklinson) v Ministry of Justice [2014] UKSC 38

• Tony Nicklinson and Paul Lamb suffered from catastrophic, irreverisble physical disabilities and wished to end their loves with medical assistance

• Challenged s.2(1) Suicide Act 1961 which criminalises assisting suicide, arguing it was incompatible with Article 8 ECHR (respect for private life)

• Held: no declaration of incompatability issued - although the court has the constitutional power to issue a declaration it was institutionally innapropriate to do so at this time due to moral, ethical, and social q

R (Steinfeld and Keidan) v Secretary of State for International Development [2018] UKSC 32

• Issue: does restricting civil partnerships to same-sex couples violate article 14 (non-discrimination) + article 8? (right to private life)

• Held: held that section 1 and 3 of civil partnerships act were incompatible with Article 14 read with Article 8 - gov cannot rely on delay to justify unequal treatment

R v A (No 2) [2001] UKHL 25; [2002] 1 AC 45

• Issue: the Youth Justice And Criminal Evidence Act 1999 prohibit questioning about a complainats sexual history + D argued that excluding this evidence violated article 6 ECHR (right to fair trial)

• Held: D lost because the specific evidence was not sufficiently relevant to require admission - but s.41 must be interpreted compatibly with Article 6: evidence of sexual history must be admitted where it is “so relevant to the issue of consent that to exclude it would endager the fairness of the trial”

  • Courts may adopt “linguistically strained” interpretations to secure convention rights (Lord Steyn)

R (Ullah) v Special Adjudicator [2004]

• Issue: Two asylum seekers argued their deporstion would violate Article 9 ECHR rights (freedom of religion)

• Held: claimaints failed because the interference with their religious freedom in Pakistan/Vietnam was not “flagrant” - only applies in extreme situations

  • Lord Bingham: UK courts must follow any “clear and constant” Strasbourg jurisprudence - “no more, but certainly no less”

  • Mirror rule with Strasbourg

R. (Clift) v Secretary of State for the Home Department [2007] 1 AC 484

• Clift serving a determinate sentence of more than 15 years

• Under the Criminal Justice Act 1991 prisoners serving less than 15 years could be considered for early release

• Prisoners serving 15 years or more required additional approval from Secretary of State and Clift argued this breached Article 14 (non discrimination) + Article 5 (liberty)

• HOL: Article 14 not engaged as length of sentence is not a protected status under it

• Strasbourg: UK had violated Article 14 + 5

  • UK courts took a narrower view of Article 14

  • Shows limits of Ullah principle “keep pace with Strasbourg, no more, no less”

N v Secretary of State for the Home Department [2005] UKHL 31

• Issue: Appellant was a 40 year old Ugandan woman suffering from advancing AIDS - under treatment in the UK she could live for “decades”, if she returned to Uganda she would likely die within 1-2 years due to lack of access to medication - argued that removal would violate Article 3 ECHR (inhuman or degrading treatment)

• Held: removal lawful, only cases where the person is terminally ill and close to death will qualify Article 3 - Lords emphasised that extending Article 3 would create a right to remain for medical treatment which Parliament never intended

R v Secretary of State for Culture, Media, and Sport [2008] UKHL 15

• Animal Defenders International launched a campaign and sought to broadcast a TV advert

• Broadcast Advertising Clearance Centre refused clearance because s.321(2) Communications Act 2003 imposes a blanket ban on political advertising

• ADI sought a declaration of incompatability under s.4 HRA arguing it violated Article 10 ECHR (freedom of expression)

• Held: ban is compatible with Article 10 - restriction is proportionate and pursues a legitimate aim (preventing wealthy groups from dominating political discourse via broadcast media)

Re P [2008] UKHL 57

• Applicants were an unmaried heterosexual couple in Northern Ireland

• Under Article 14 of Adoption Order 1987, married couples could adopt but unmarried couples could not

• Couple argued the rule was discriminatory under Article 14 ECHR read with Article 8 (family life)

• Held: declaration of incompatability issues - rule treated unmarried couples less favourably than married couples

R v Horncastle [2009] UKSC 14

• Several defendants were convicted of serious offences where hearsay evidence was admitted because the witnesses were dead, missing or too frightened to testify

• Statements admitted under ss.114-116 Criminal Justice Act 2003 which allow hearsay where the witness is unavailable

• D argued this violated Article 6(1) and 6(3) ECHR

• Held: Appeals dismissed - although UK courts must take into account Strasbourg jurisprudence, they are not strictly bound by it - there may be rare occasions where Strasbourg has misunderstood the domestic system

R(on the application of Quila) v SSHD [2011] UKSC 45

• Home Secretary amended the immigration rule 277 to raise the minimum age for both the sponsor and the applicant in a marriage visa application from 18 to 21 - idea was to prevent forced marriages

• Two young couples were refused visas soley because they were under 21

• Argued this violated Article 8 ECHR (right to family life)

• Held: rule was incompatible with Article 8 - though aimed at preventing forced marriage, it disporportionately interfered with Article 8 rights of genuine couples

Manchester City Council v Pinnock [2010] UKSC 45

• Mr Pinnock was a demoted tenant of Manchester City Council due to antisocial behavioir by his sons

• Council sought possession of his home

• Pinnock argued this violated Article 8 ECHR (right to respect for home) - court could not consider whether eviction was proportionate

• Held: article 8 proportionality applies HOWEVER court held that eviction was proportionate on the facts because of the serious + persistent antisocial behaviour

A v BBC [2014] 2 WLR 1243

• A was a foreign national facing extradition to stand trial abroad

• If extradited he would face inhumane or degrading treatment engaging article 3 ECHR

• High Court granted him anonymity to protest his article 2 and 3 rights

• BBC challenged this - anonymity violated principle of open justice + freedom of expression under Article 10

• Held: anonymity restored - CA applied the wrong test, treating the anonymity order as if it were an exceptional departure from open justice when the correct approach is a balancing exercise instead (upheld by SC) - court may restrict reporting where necessary to protect article 2 (life), article 3 (freedom from torture), article 8 (private life)