Human Rights

CTB v News Group Newspapers Ltd & Thomas [2011] EWHC 1326 (QB)

Thu, 05 Jan 2012 20:10:25 GMT

Eady J held that a Defendant could make a unilateral statement in open court in a privacy claim, but the proposed statement was not clear and the Court would therefore not allow it.

Cooper & Anor v Turrell [2011] EWHC 3269 (QB)

Thu, 05 Jan 2012 20:09:42 GMT

Damages of £40,000 for disclosure of audio recording and £80,000 for libel:-

The Defendant had disclosed an audio recording of a private meeting between the Claimant and his lawyers via an extensive voicemail, email, Twitter and blogging campaign, and had made a number of highly damaging allegations concerning the nature of his departure from the Second Claimant company, the honesty and integrity with which it was being run, and as to the First Claimant's medical fitness to continue in his position as a director and executive chairman. The Court was satisified that the allegations were untrue, and that they and the audio recording were published out of a desire for revenge. The First Claimant was awarded £50,000 damages for libel and £30,000 for misuse of private information, and the Second Claimant £30,000 for libel and £10,000 for breach of confidence.

Ferdinand v MGN Ltd [2011] EWHC 2454 (QB)

Thu, 17 Nov 2011 11:56:59 GMT

The Article 10 interests of the publishers of a newspaper article about England football captain Rio Ferdinand's extra-marital affair outweighed his Article 8 interests. Although the information concerned the Claimant's private life and was protected by Article 8, publication of the article was justified in the public interest as the Claimant had portrayed himself as a 'reformed' character who no longer cheated on his long-term partner and his position as England captain meant that he was a person from whom many members of the public expected high standards of behaviour, on and off the pitch.

L.A.M. v. A Scottish Local Authority [2011] CSOH 113

Thu, 04 Aug 2011 21:23:15 GMT

In this action, the pursuer sued a local authority for their alleged culpable failure of their Social Work Department, to prevent her from being the victim of child sex abuse, perpetrated by other family members. A 2005 Scottish Executive Investigation into the case had produced a report, with detailed findings of fact. The pursuer sought recovery of these findings in fact, a motion which was opposed by the Scottish Government as havers. The Scottish Government argued that ECHR rights of third parties were engaged and required protection; these included the rights of the alleged perpetrators to presumption of innocence and protection of reputation, and also the rights of the alleged fellow victims, in relation to personal sensitive information.

Having heard submissions, the court accepted that Article 6 and Article 8 ECHR rights of alleged abusers and victims were engaged by releasing the findings of fact to the pursuer, although the court agreed that such disclosure was necessary to the progress of the pursuer’s case.

Deciding that the issue of whether third parties affected by disclosure should be given a right of representation on this issue was still a live point, the court amended the original interlocutor, allowing for disclosure of the findings of fact, but allowing a By-Order hearing to deal with the third party representation point and any reporting restrictions on the case itself. This opinion was anonymised, as per the advice contained in Court of Session Practice Note No 2 of 2007.

Al-Skeinni and Al-Jedda v UK, appns 55721/07 and 27021/08, 7 July 2011

Thu, 04 Aug 2011 16:22:15 GMT

The Court ruled that the UK authorities were in control in Southern Iraq as part of the invading forces, such that civilians there were under the jurisdiction of the UK and hence its obligations under the ECHR.

Sufi and Elmi v UK, appn 8319/07, 28 June 2011

Thu, 04 Aug 2011 16:20:32 GMT

The European Court of Human Rights determined that people could not be deported to Somalia, even if they were criminals, because, as it was a failed state and subject to internal violence, no-one could be safe there and deportation would breach Art 3 ECHR

Bertie Walter Hull v. James William Thomas Campbell [2011] CSOH 24

Sun, 20 Mar 2011 22:51:59 GMT

In June 1992 the pursuer obtained decree against the defender at Ayr Sheriff Court, in respect of a debt worth £9,600. By 1998 no payment had been made towards satisfying this decree and the pursuer raised an action of adjudication in the Court of Session, which pronounced decree adjudging the defender’s heritable property to the pursuer. By August 2008, the ten year reversionary period expired without any payment made towards the debt, and the present action was raised, for declarator of expiry of the “legal” period, and that the defender’s property as adjudged should belong to the pursuer. By this point, the sum due by the defender had risen to £52,272.87 (making up the principal debt, legal expenses and interest charged to date).

The pursuer in his submissions set out the historical basis of the action for adjudication, noting that it could currently be granted under the authority of the Diligence Act of 1672, as amended by the Lands Transference (Scotland) Act 1847, the Titles to Land Consolidation (Scotland) Act 1868 and the Statute Law Revision (Scotland) Act 1906, but was due to be abolished when sections 79 and 81 of the Bankruptcy and Diligence etc (Scotland) Act 2007 were brought into force. Noting that adjudication provided a remedy whereby a creditor could recover a debt owned by a defender whose only asset was land, its effect on expiry of the ten year legal period was to convey the land to the pursuer irredeemably, regardless of the value of the land, compared with the value of the debt. The defender countered that the court could not be called upon to grant such a declarator, which would amount to an infringement of the defender’s right under Article 1 Protocol 1 of the European Convention on Human Rights.

Grabbling with a dearth of authority on the correct interpretation of the court’s discretion in applying the remedy, the Lord Ordinary noted that when interpreting such old statutes, the court should endeavour to implement the spirit of the law and should not find itself confined by a strict literal interpretation. Accordingly, the Lord Ordinary found that the court was not powerless to merely grant decree on the terms sought, and instead exercised a discretion to prevent unfairness arising. The Lord Ordinary noted that the court was only prepared to grant decree to the extent of the debt, and not to convey the whole property, having regard to the protections afforded under Article 1 of Protocol 1.

Trustees of the Lithgows Limited Pension Scheme v. The Board of the Pension Protection Fund [2011] CSIH 6

Sun, 23 Jan 2011 20:46:26 GMT

The appellants were the trustees of a multi-employer occupational pension scheme: Ormsary Farmers, a limited partnership registered under the Limited Partnership Act 1907, were one of the participating employers under the scheme. Under the Pensions Act 2004, the respondent was obliged to determine a “failure score” for the appellants’ scheme, and resolved that this figure would be the normal failure score which Dun & Bradstreet UK Limited assigned to each employer. In this action, the appellants had claimed that the failure score was not accurate, because of additional information on Ormsary Farmers, which was not publicly available and had not been taken into account by Dun & Bradsheet. It was submitted that Ormsary Farmers were prepared to provide this information to Dun & Bradsheet, but only if it remained confidential and was not published on their public database. This condition was not acceptable to the respondent or to Dun & Bradsheet.

The appellants pursued an unsuccessful statutory review of this decision and also latterly referred the dispute to the Pensions Ombudsman. That referral was rejected. In the present action, the appellants appealed to the Inner House under section 217(1) of the 2004 Act. The appellants contended that the respondents had interfered with their right to respect for private and family life, home and correspondence in requiring them to divulge additional information, without the protection of confidentiality.

Dismissing the appeal, the Inner House noted that Article 8 only provided protection for human beings, and its scope did not extend to the appellants as trustees of the scheme, nor Ormsary Farmers themselves. The court noted that the Article 8 protection could only be applicable to the general partners of Ormsary, but that they were not, and could not be, parties to the action. Rejecting the submission that the appellants were the representatives of the general partners, the court noted that the appellants could only represent their own interests as trustees of the scheme, not any of their individual participating employers. The court concluded that the challenge to the calculation of the failure score by the appellants was misconceived and was without foundation. Appeal dismissed.

B.J. v. Pauline Proudfoot, Children's Reporter for Stirling and the Lord Advocate [2010] CSIH 85

Sun, 02 Jan 2011 12:48:19 GMT

On 16 February 2009, a children's hearing in Stirling varied a supervision requirement in respect of the appellant, BJ, and decided that she was liable to be placed in secure accommodation in terms of section 70 of the Children (Scotland) Act 1995 as amended by section 135 of the Antisocial Behaviour etc (Scotland) Act 2004. The actual placement of the child was effected by two officials, namely the chief of social work for the area, and the head of the secure accommodation. As the placing and keeping of the child in secure accommodation constituted a deprivation of liberty, articles 5 and 6 of the European Convention on Human Rights (ECHR) were engaged. The appellant contended that her human rights had been breached, as section 70 as amended did not comply with articles 5(4) and 6(1), in respect that the deprivation of liberty was left in the hands of two officials who had the power to subvert the hearing's decision.

In rejecting these submissions and finding that there had been no breach of the appellant’s human rights, the Inner House noted that before making any decision, the children’s hearing has the benefit of extensive submissions of the parties, reports, and considers all facts and arguments available to it. In addition to being an independent and impartial tribunal, the court noted that the Act and Regulations governing it also satisfy the requirements of regular review, through the right of appeal to a Sheriff in terms of section 51, with a right to seek suspension of the liability to be placed in secure accommodation pending the appeal (section 51(9)), the right to apply for review by the children's hearing if the child is not placed in secure accommodation within six weeks of the decision of the children's hearing (regulation 12), the requirement that a child be brought before a children's hearing within three days of any detention not authorised by such a hearing (regulation 5), and restrictions on the period during which a child may be kept in secure accommodation by virtue of a warrant (regulation 9 and sections 45, 66 and 67 of the Act). In addition to the statutory provisions, the court also noted that there is a procedure of judicial review, which is capable of providing early hearings and a degree of despatch.

The court noted that it was important in the context of compliance with the ECHR that the statutory provisions gave the officials in these proceedings only a one-way discretionary power - namely, taking the appellant out of secure accommodation. The court found it compelling that the officials could not place or keep the appellant in secure accommodation without the authorisation of the children's hearing.

The court was thus satisfied that the events which occurred in the appellant's case did not constitute a breach of her rights in terms of articles 5 or 6 of the ECHR, nor that the legislation had been demonstrated to have failed to comply with the ECHR. Appeal refused.

Stuart Potter v. The Scottish Ministers [2010] CSOH 85

Sun, 15 Aug 2010 15:44:48 GMT

The petitioner was sentenced to two consecutive prison terms for assault and robbery, and is currently serving these terms in a Scottish prison. The petitioner claimed that his Article 8 ECHR right to respect for private and family life had been interfered with as a result of a prison PIN telephone system message.

The petitioner averred that calls originating from the PIN telephone system played the following pre-recorded message before connecting the caller and call recipient, and the petitioner objected to its advising the recipient that the call is coming from a Scottish prison:

“This call originates from a Scottish prison. As such it will be logged and may be recorded and/or monitored. If you do not wish to accept this call please hang up.”

The petitioner sought declarator that the introduction and maintenance of this telephone message on outgoing calls was contrary to Article 8 of the European Convention on Human Rights and unlawful by virtue of s6(1) of the Human Rights Act 1998 and ultra vires by virtue of s57(2) of the Scotland Act 1998.

The respondent disputed whether the circumstances amounted to an interference with the petitioner’s Article 8 rights.

Having heard in depth oral and written submissions, and evidence from both the petitioner himself, and a variety of expert witnesses on the position of pre-recorded messages on outgoing prisoners’ calls from other jurisdictions, the Lord Ordinary considered whether there was an objective need for the measure in question.

The court considered that there were a number of objective needs identified in the course of the evidence, but that some were in tension with others. The court considered that there was a need to preserve order and discipline in prisons, the need to prevent disorder, bullying and crime in prisons, and the need to protect the rights and freedoms of others. There is also correspondingly a need to rehabilitate prisoners and to enable them to maintain contact with their families and friends.

On balance the court considered that the maintenance of good order and behaviour within prisons requires some degree of control over the use to which telephones are put, a control which is also exercised in a number of other jurisdictions. There was clearly a need for surveillance and control, but the court did not see any benefit in this surveillance being covert. The court found there would be little point in advising recipients of calls that they were being logged and monitored, if that recipient was not told who was carrying out the logging/monitoring.

Further, the court found evidence that there was a need to protect recipients in the public domain from unwanted and harassing calls e.g. victims of domestic abuse. The court found this evidence particularly compelling and found the message offered real protection and assistance to women in averting unwanted calls from inmates.

The court found that while the petitioner could be construed as a victim for the purposes of Article 8, nonetheless, in the opinion of the court, there was no interference with his Article 8 right, and in any event, such interference could have been justified under Article 8(2), in being proportionate in the pursuance of the legitimate aim of regulating prisoner behaviour. Petition repelled.

R (on the application of Smith) (FC) (Respondent) v Secretary of State for Defence (Appellant) and another, [2010] UKSC 29

Thu, 08 Jul 2010 19:13:15 GMT

Private Jason Smith, a member of the Territorial Army since 1992, was mobilised for service in Iraq in June 2003. After acclimatising for a short period in Kuwait he was sent to a base in Iraq, from where he was billeted in an old athletics stadium. By August the daytime temperature in the shade was exceeding 50 degrees centigrade. On 9 August he reported sick, complaining of the heat. Over the next few days he was employed in various duties off the base. On the evening of 13 August he collapsed at the stadium and died of heat stroke.

An inquest found that Private Smith’s death was caused by a serious failure to address the difficulty he had in adjusting to the climate. Private Smith’s mother commenced proceedings to quash that verdict and for a new inquest to be held. She argued that the United Kingdom had owed her son a duty to respect his right to life which was protected by article 2 of the European Convention on Human Rights (ECHR) and that the inquest had to satisfy the procedural requirements of an investigation into an alleged breach of that right. The Secretary of State denied that a further inquest was required on the facts of the case. He also denied that a soldier on military service abroad was subject to the protection of the Human Rights Act 1998 when outside his base, while accepting that in this case Private Smith had died within the UK’s jurisdiction on the base.

The High Court held that Private Smith had been protected by the Human Rights Act 1998 at all times in Iraq and ordered a fresh inquest. Before the Court of Appeal the Secretary of State agreed he would not submit to the new coroner that the requirements of article 2 were inapplicable. Notwithstanding that concession, both the Court of Appeal and the Supreme Court considered that the appeal of the Secretary of State raised two issues of general importance and of practical concern:
whether on the true interpretation of article 1 of the ECHR British troops operating on foreign soil fell within the jurisdiction of the United Kingdom (‘the jurisdiction issue’); and whether the fresh inquest into the death of Private Smith must conform with theprocedural requirements implied into article 2 (‘the inquest issue’). The Court of Appeal answered both questions in the affirmative.

The Supreme Court allowed the appeal on the jurisdiction issue (Lady Hale, Lord Mance and Lord Kerr dissenting) and unanimously dismissed the appeal on the inquest issue. It held that it was not necessary in every case of a death of a serviceman abroad to carry out an investigation which examined whether there was fault on the part of the state because (a) the Human Rights Act 1998 did not apply to armed forces on foreign soil and (b) in any event, there was no such automatic right. The type of investigation would depend on the circumstances of the case.

R (on the application of F (by his litigation friend F)) and another (FC) (Respondents) v Secretary of State for the Home Department (Appellant), UKSC 2009/0144

Thu, 22 Apr 2010 18:25:45 GMT

Under section 82 Sexual Offences Act 2003 all persons sentenced to 30 months’ imprisonment or more for a sexual offence become subject to a lifelong duty to keep the police notified of where they are living and of travel abroad (‘the notification requirements’). There is no right to a review of the necessity for the notification requirements at any time.

The respondents are convicted sex offenders subject to the notification requirements. Both brought claims for judicial review claiming that the absence of a right of review of the requirements rendered them a disproportionate manner of pursuing the legitimate aim of preventing crime and thereby breached their right to privacy protected by Article 8 of the European Convention on Human Rights.

The Divisional Court granted the respondents’ claims and made a declaration that s 82 (1) Sexual Offences Act 2003 was incompatible with Article 8. The Court of Appeal dismissed an appeal by the Secretary of State for the Home Department, who then appealed to the Supreme Court.

The Supreme Court unanimously dismissed the appeal and repeated the declaration of the lower courts that s 82(1) Sexual Offences Act 2003 was incompatible with Article 8 because it made no provision for individual review of the notification requirements.

Appeals under Section 74 of the Criminal Procedure (Scotland) Act 1995 by MATTHEW McALLISTER and ors vHER MAJESTY'S ADVOCATE

Thu, 07 Jan 2010 12:06:53 GMT

Employment of Counsel

REFERENCE BY THE SHERIFF AT TAYSIDE CENTRAL AND FIFE AT FORFAR, in the cause; HER MAJESTY'S ADVOCATE v DUNCAN McLEAN (Minuter)

Thu, 07 Jan 2010 11:59:16 GMT

Appeal Court: Opinion of the Court delivered in reference by the Sheriff at Forfar Sheriff Court. Minuter was charged on indictment with theft of a motor vehicle and wilful fire-raising. Minuter detained under s14 of the Criminal Procedure (Scotland) Act 1995. Minuter not offered legal assistance nor did he ask to be represented. He was granted right to intimate to a named solicitor the fact and place of his detention. Thereafter, the minuter was interviewed in the absence of representation and he made a number of admissions upon which the Crown now intends to rely. Sheriff referred certain questions to the Appeal Court for determination. Determination: whether the fact that legal representation is not available from the moment of entry into police custody, constituted a violation of an accused person's rights under Article 6 (1) and 6 (3) (c) of the European Convention on Human Rights.

ALYSON KING v THE ADVOCATE GENERAL FOR SCOTLAND

Thu, 07 Jan 2010 11:49:06 GMT

OUTER HOUSE;Action for declarator of the occurence of a nuisance and infringement of Convention Rights arising from aircraft flying at less than 250 feet. Action for damages in the sum of £100,000. The pursuer represented herself in respect of this action for declarator and for damages. The pursuer averred that Operational Low Flying carried out by the RAF over her farm amounted to a nuisance and a breach of her private and family life and home, to her detriment and injury. Disputed: whether in fact the aircrafts had carried out operations over the pursuers property at a level below 250 feet.

R (on the application of L) (FC) (Appellant) v Commissioner of Police of the Metropolis (Respondent), [2009] UKSC 3

Wed, 25 Nov 2009 13:38:50 GMT

This case raises important issues about the meaning and application in practice of s.115(7) of the Police Act 1997 as to the information that is to be provided by the chief officer of a police force to the Secretary of State for inclusion in an enhanced criminal record certificate (“ECRC”).

The appellant L was the mother of X who was born in 1989. Following upon a child protection conference in 2002, X’s name was placed on the child protection register under the category of neglect. In 2003, X was convicted for a robbery and was sentenced to three years’ detention in a young offender institution. His name was then removed from the child protection register as he was in detention. He was released in February 2004.

From February to December 2004 the appellant was employed by an employment agency which provided staff to schools. Between March and July 2004 she worked as a midday assistant at a secondary school. At the start of her employment the agency applied for an ECRC in accordance with s.115 of the 1997 Act. In December 2004 the ECRC was issued in response to the police check. It recorded that the appellant had no criminal convictions and that no information on her was recorded either on the list held under s.142 of the Education Act 2002 or on the Protection of Children Act 1999 list. However, in the box titled “Other relevant information disclosed at the Chief Police Officer’s discretion”, the Secretary of State disclosed information pertaining to the circumstances surrounding X. Shortly afterwards the appellant was informed by the agency that her services were no longer required.

The appellant sought judicial review of the Commissioner’s decision to disclose the information contained in the ECRC. Her application was dismissed by Munby J. The Court of Appeal granted leave to appeal and the Secretary of State made an application to intervene which was granted. In March 2007 the Court of Appeal dismissed the appeal. L appealed.

The Supreme Court unanimously dismissed the appeal. It held that it was possible for s.115(7) to be read and to be given effect to so that decisions were taken which were compatible with the applicant’s article 8 right.

Further, the court refused the appellant’s request that the decision that was made in her case be quashed. There was no doubt that the information that was disclosed about her was relevant for the purpose for which the ECRC was being required. As for the question whether it ought to have been disclosed, insufficient weight was given to the appellant’s right to respect for her private life. However, there was no doubt that the facts that were narrated were true. It was also information that bore directly on the question whether she was a person who could safely be entrusted with the job of supervising children in a school canteen or in the playground. It was then for the employer to decide what to make of this information. The risk to the children was held to outweigh the prejudicial effects that disclosure would give rise to.

R (on the application of Purdy) (Appellant) v Director of Public Prosecutions (Respondent), [2009] UKHL 45

Wed, 26 Aug 2009 15:07:00 GMT

Ms Purdy suffers from primary progressive multiple sclerosis for which there is no known cure. It was diagnosed in 1995 and it is progressing. She expects that there will come a time when her continuing existence will become unbearable. When that happens she will wish to end her life while she is still physically able to do so. But by that stage she will be unable to do this without assistance. So she will want to travel to a country where assisted suicide is lawful, probably Switzerland. Her husband, Mr Omar Puente, is willing to help her to make this journey.

Assisting a person to commit suicide is a crime in this country – s.2(1) of the Suicide Act 1961. Accordingly, there is a substantial risk that the acts which Ms Purdy wishes her husband to perform to help her to travel to Switzerland will give rise to a prosecution in this country.

Counsel for Ms Purdy submitted that the prohibition in s.2(1) of the 1961 Act constitutes an interference with Ms Purdy’s right to respect for her private life under art.8(1) of the ECHR and that this interference is not “in accordance with the law” as required by art.8(2), in the absence of an offence-specific policy by the Director of Public Prosecutions which sets out the factors that will be taken into account by him and Crown Prosecutors acting on his behalf in deciding under s.2(4) of the 1961 Act whether or not it is in the public interest to bring a prosecution under that section.

Ms Purdy does not ask that her husband be given a guarantee of immunity from prosecution. What she seeks is information that she says she needs so that she can take a decision that affects her private life. However, the Director has declined to say what factors he will take into consideration in deciding whether or not it is in the public interest to prosecute those who assist people to end their lives in countries where assisted suicide is lawful.

The Court of Appeal held that it was unable to find in Ms Purdy’s favour on either branch of her argument. It had previously been held that art.8 was directed to the protection of personal autonomy while the person was alive but did not confer a right to decide when or how to die. Whilst the European Court of Human Rights disagreed, the Court of Appeal held that it was bound to follow the decision of this House and was not at liberty to apply the ruling of the Strasbourg court. As for the question whether the requirements of art.8(2) were satisfied, the Court of Appeal held that the absence of a crime-specific policy relating to assisted suicide did not make the effect of s.2(1) of the 1961 Act unlawful or mean that it was not in accordance with the law.

The House unanimously allowed the appeal and required the Director to promulgate an offence-specific policy identifying the facts and circumstances which he will take into account in deciding, in a case such as that which Ms Purdy’s case exemplifies, whether or not to consent to a prosecution under s.2(1) of the 1961 Act.

Begum, R (on the application of) v. Denbigh High School [2006] UKHL 15 (22 March 2006)

Wed, 22 Mar 2006 00:00:00 GMT

No interference of right to manifest religion under Art. 9 ECHR. A school's refusal to allow a pupil to wear a jilbab at school did not interfere with her right under the European Convention on Human Rights 1950 Art.9 to manifest her religion and, even if it did, the school's decision was objectively justified under Art.9(2). In the circumstances, the pupil had not been denied access to education in breach of Protocol 1 Art.2 of the Convention.

Ali v. Lord Grey School [2006] UKHL 14 (22 March 2006)

Wed, 22 Mar 2006 00:00:00 GMT

Protocol 1 Art. 2 ECHR – Right not to be denied access to the general level of educational provision available. The European Convention on Human Rights 1950 Protocol 1 Art.2 did not confer a right to be educated at a particular school but rather conferred a right not to be denied access to the general level of educational provision available in the Member State. On the evidence a pupil had not been excluded from school education in breach of his Convention rights in circumstances where he had chosen not to take up the school's invitation to attend a meeting to re-admit him to the school, nor its offers to provide work for him to do from home and to arrange alternative tuition.

Takoushis, R (on the application of) v HM Coroner for Inner North London & Ors [2005] EWCA Civ 1440 (30 November 2005)

Wed, 30 Nov 2005 00:00:00 GMT

Administration of Justice. It was held that an inquest had not been full and fair and a new inquest was therefore ordered to investigate why a schizophrenic who was at risk of self harm had been able to leave the A&E department of a hospital before being seen by a doctor. Where a person died as a result of what was arguably medical negligence in an NHS hospital, the system in operation in England, including both the possibility of civil process and the inquest, met the requirements of Art.2 of the European Convention on Human Rights 1950 for a practical and effective investigation.

Canning v HM Coroner for Northampton, DC, 23/11/2005

Wed, 23 Nov 2005 00:00:00 GMT

Discretion not to hold inquest where death probably not unnatural. A coroner was held to be entitled to refuse to hold an inquest into the death of a child where she was satisfied that the death was not unnatural.