Human rights and tort

Relevant sections of the HRA 1998

s.2 - courts must take into account judgements from the ECtHR

s.3 - Legislation must be interpretted by courts around the ECHR

s.4 - Declarations of incompatibility

s.6 - Acts of public authorities must be in line with the ECHR

s.7 - the right to bring proceedings against public authorities regarding s6

s8 - Right to remedies

s.19 - all bills must have a statement of compatibility

Horizontal effect

Because courts must interpret legislation around ECHR there is now an obligation of human rights between individuals not just individuals and public bodies

this has expanded our legal system

• Bradley v Ewing

Trespass to the person v Art 5

False imprisonment - restriction on freedom of movement without lawful excuse

Art 5. - unlawful disproportionate deprivation of liberty

Austin and Saxby

• Easier to satisfy false imprisonment that art. 5

Jollah

Austin and Saxby v metropolitan police commissioner

• mayday protests oxford circus

• detainment not deprivation of liberty

easier to satisfy false imprisonment that art 5

Jollah

Curfew imposed aligning with schedule three of the immigration act

• High court held this was false imprisonment

  • Jollah Entitled to £4,000 damages for the 891 days

PRINCIPLE

• There can be false imprisonment at common law without satisfaction of art 5

  • secretary of state argued the two should be aligned

    • supreme court said no

Nuisance v Art 8

Art 8 - a right to respect family life, home and correspondence

• Nuisance is a wrongful invasion of this

Marcic v Thames Water

Fearn v Tate

Marcic v Thames water

Unsuccesful claim under art.8

• court said fair balance needs to be struck under art.8 and interests of the wider community

Fearn v Tate

Invasion of privacy is an umbrella term

• found the viewing gallery constituted a legal nuisance

Art 8 v Art 10

Freedom of expression v Right to privacy

• campbell v MGN

• Douglas

Campbell v MGN

• Photographs published by MGN of Campbell leaving rehabilitation clinic

• public interest and freedom of expression favoured over right to privacy

Douglass

• Hello! newspaper found to violate Cs right to privacy by sneaking pictures of their wedding

• right to privacy placed over freedom of expression

Conceptual difficulties

Foreign concepts placed into private law

• conor gearty

risk of double compensating

Ghaidan v Godin-Mendoza

• Rent act 1977 interpretted to include same sex couples in order to align with echr

Conor Gearty

• at first disagreed with HRA

  • Was not good for legal certainty or clarity

    • Countered decision of Hunter v Canary wharf

  • Bourgeois tool against socialism

  • Douglas

    • relied too much on right to privacy

• Now agreed with HRA

  • Protects the right of the proletariat from being manipulated by national elites

    • HRA is a good watchdog for domestic law

    • interests being protected are not that categorically different