Human Rights cases

Step by Step framework

Permission

Standing

Step 1: Identify the right engaged (which ECHR article?)

Step 2: Is the right absolute or qualified?

Step 3: Whose rights? Victim test (s.7 HRA / Art 34 ECHR) — narrower than 'sufficient interest'

Scope

Step 4: Is there a public authority? (s.6 HRA — pure and hybrid public authorities)

Grounds

Step 5: Is there an interference? (negative obligation) OR failure to protect? (positive obligation)

Step 6: For qualified rights — is the interference: (a) in accordance with law/prescribed by law; (b) for a legitimate aim; (c) necessary in a democratic society / proportionate?

Remedies

Step 7: Remedies: s.3 interpretation first; s.4 DoI if not possible; s.6 breach of duty; damages

Ghaidan v Godin-Mendoza [2004] UKHL 30

Articles: Arts 8 & 14 ECHR / s.3 HRA
Principle: Courts can use s.3 HRA to read words into legislation to make it Convention-compatible, even departing from Parliament's original intention — but cannot adopt a meaning that goes against the fundamental "grain" of the legislation. Same-sex partners read into the Rent Act 1977 succession provisions

Bellinger v Bellinger [2003] UKHL 21

Articles: Arts 8 & 12 ECHR / s.4 HRA
Principle: Where s.3 interpretation is impossible without contradicting Parliament's clear intent, courts must issue a Declaration of Incompatibility under s.4 instead. A DoI does not invalidate legislation or bind the parties — it signals incompatibility to Parliament. Led to the Gender Recognition Act 2004.

A and Others v Home Secretary [2004] UKHL 56

Articles: Art 5 ECHR (right to liberty) / Art 14 (non-discrimination) / Art 15 (derogation)

Principle: Indefinite detention without trial of foreign terror suspects under s.23 Anti-Terrorism Crime and Security Act 2001 was disproportionate and discriminatory (it applied only to foreign nationals, not UK nationals who posed equal risk). A derogation under Art 15 must be strictly required by the exigencies of the situation.

R (Gillan) v Commissioner of Police for the Metropolis [2006] UKHL 12

Articles: Art 5 ECHR

Principle: A brief stop and search under s.44 Terrorism Act 2000 did not constitute a deprivation of liberty under Art 5 — the duration and circumstances did not reach the threshold. (Note: the domestic court found no violation; contrast with the ECtHR below.)

Gillan v United Kingdom [2009] ECHR 28

Articles: Art 8 ECHR (right to private life)

Principle: Section 44 Terrorism Act 2000 powers were not "sufficiently circumscribed" and lacked "adequate legal safeguards against abuse," violating Art 8. The risk of discriminatory use was a "very real consideration." Led to repeal of s.44 by the Protection of Freedoms Act 2012.

A v Home Secretary (No 2) [2005] UKHL 71

Articles: Art 3 ECHR (prohibition of torture)

Principle: Evidence obtained by torture of third parties is absolutely inadmissible in any proceedings, regardless of national security considerations. The common law, reinforced by Art 3 and the UN Torture Convention, compels exclusion as unreliable, unfair, and incompatible with the rule of law

R (Begum) v Special Immigration Appeals Commission [2021] UKSC 7

Articles: Art 6 ECHR (right to fair trial)

Principle: The right to a fair hearing does not automatically override national security exclusions. Where there is an irresolvable conflict between Art 6 and national security, the executive (not courts) decides whether to permit return. Courts assess only whether the decision was one SIAC could lawfully reach

R (Laporte) v Gloucestershire Chief Constable [2006] UKHL 55

Articles: Arts 10 & 11 ECHR (expression and assembly)

Principle: Police may only invoke breach of the peace powers when a breach is imminent — on the point of happening — not merely anticipated at some future time. Blanket prevention of an entire group including peaceful demonstrators is grossly disproportionate where less restrictive means were available

Austin v Metropolitan Police Commissioner [2009] UKHL 5

Articles: Art 5 ECHR (right to liberty)

Principle: Kettling (cordoning) for crowd control purposes does not constitute a deprivation of liberty under Art 5 provided it is: (1) in good faith; (2) proportionate to the situation; and (3) maintained no longer than reasonably necessary. The measure must not be arbitrary.

Mayor of London (on behalf of GLA) v Hall [2011] 1 WLR 504

Articles: Arts 10 & 11 ECHR (expression and assembly)

Principle: The right to protest does not extend to permanent occupation of public land. A landowner's property rights can justify possession proceedings even against political protesters in a significant public space (Parliament Square). Arts 10 and 11 were engaged but the interference was proportionate

City of London Corporation v Samede [2012] EWCA Civ 160

Articles: Arts 10 & 11 ECHR (expression and assembly)

Principle: Prolonged occupation of public or private land (the Occupy London camp at St Paul's) is not protected by Arts 10 and 11. Courts balance protest rights against the rights of landowners and other highway users — the longer the occupation and greater the disruption, the less likely protest rights will prevail.

Duncan v Jones [1936] 1 KB 218

Articles: Pre-HRA / common law (no ECHR articles applied)

Principle: English law recognises no special right of public meeting. Police may prevent a meeting where there are reasonable grounds to apprehend a breach of the peace based on past experience at the same location. Now must be read subject to the HRA — Arts 10 and 11 require proportionality.

DPP v Jones [1999] 2 AC 240

Articles: Arts 10 & 11 ECHR / common law (highway)
Principle: The public have a right to use the highway for any reasonable and peaceful purpose, not merely for passing and repassing. A peaceful, non-obstructive assembly on the public highway is a reasonable user and does not constitute a trespass — and cannot be the basis of a "trespassory assembly" prohibition under s.14A Public Order Act 1986.

DPP v Ziegler [2021] UKSC 23

Articles: Arts 10 & 11 ECHR / s.137 Highways Act 1980

Principle: A person charged with wilful obstruction of the highway (s.137 HA 1980) may have a defence that their conviction would be a disproportionate interference with their Arts 10 and 11 rights. Courts must conduct a fact-specific proportionality assessment in each case — a brief, non-violent protest obstruction may not justify criminal conviction.

In re Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32

Articles: Arts 9, 10 & 11 ECHR (religion, expression, assembly)

Principle: Safe access zones around abortion clinics criminalising conduct intended to influence patients/staff are compatible with the ECHR. Proportionality can be assessed generally across a category of cases rather than individually in each instance — a significant and controversial methodological point that may weaken rights protection in future cases.

Proportionality test

• (1) Is the legislative objective sufficiently important to justify limiting a fundamental right?

• (2) Is the measure rationally connected to the objective?

• (3) Could a less intrusive measure have been used (minimal impairment)?

• (4) Has a fair balance been struck between the individual right and the community interest? (proportionality stricto sensu)

Replaces Wednesbury for HRA: 'so outrageous in its defiance of logic...' is lower standard

Key distinctions

• s.3 vs s.4 HRA: s.3 preferred (doesn't invalidate legislation); s.4 used when s.3 reading would 'go against the grain' of legislation (Lord Nicholls in Ghaidan)

• Absolute vs qualified rights: Art 3 is NEVER subject to proportionality; Arts 8–11 are

• Deprivation of liberty vs restriction of movement (Art 5): degree and intensity of restraint matters (Austin)

• Breach of peace — IMMINENT required (Laporte): not merely possible or apprehended

• Torture evidence — ALWAYS inadmissible regardless of provenance or national security (A v Home Secretary No 2)

• DoI is discretionary, does not bind parties, does not invalidate legislation

• ECtHR decisions: courts must 'take into account' (s.2 HRA) — not automatically follow