ART 10 Flashcards
WHAT IS ART 10
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
SIMMS 2000
“The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.”
“In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.”
The principle of legality applies to subordinate legislation as much as to Acts of Parliame
STEEL AND MORRIS V UK 2005
- The Court pointed that also in civil proceedings a litigant must not be denied the opportunity to present his or her case effectively before the court and he or she must be able to enjoy equality of arms with the opposing side. Article 6 (1) leaves to the State a free choice of the means to be used in guaranteeing litigants the above rights. The institution of a legal aid scheme constitutes one of those means but there are others, for example simplifying the applicable procedure.
-In the particular case the Court found that the financial consequences could be grave on the applicants if they would have been found liable for defamation, the applicants lacked legal knowledge and the case itself was legally and factually complex. Thus it was ruled by the Court that the denial of legal aid to the applicants deprived them of the opportunity to present their case effectively before the court and contributed to an unacceptable inequality of arms in violation of their right to fair trial.
legality r v shaylor
The principle of legality requires the court to address itself to three distinct questions. The first is whether there is a legal basis in domestic law for the restriction. The second is whether the law or rule in question is sufficiently accessible to the individual who is affected by the restriction, and sufficiently precise to enable him to understand its scope and foresee the consequences of his actions so that he can regulate his conduct without breaking the law. The third is whether, assuming that these two requirements are satisfied, it is nevertheless open to the criticism on the Convention ground that it was applied in a way that is arbitrary because, for example, it has been resorted to in bad faith or in a way that is not proportionate. I derive these principles, which have been mentioned many times in subsequent cases, from The Sunday Times v United Kingdom (1979-1980) 2 EHRR 245, para 49
R v (British Broadcasting Corporation) v Secretary of State for Justice [2012] EWHC 12 (Admin)
The Administrative Court has quashed a decision of the Secretary of State not to allow the BBC to film for broadcast an interview with Babar Ahmad, a British national detained without trial for over seven years pending his extradition to the United States.
On the facts of the case, the Court (Lord Justice Hooper and Mr Justice Singh) found the Secretary of State’s refusal to be a disproportionate interference with the right to freedom of expression under Article 10.
R (BBC and Dominic Casciani) v Secretary of State for Justice [2012] EWHC 13 (Admin), paras 37-54, 76-97
- It is clear from the text of article 10(1) that it confers not only the right to “impart” information and ideas but also the right to “receive” them: see Sunday Times v United Kingdom (1979) 2 EHRR 245, at paras. 65-66.
- Media regarded as watchdog of public
Huang v SSHD and Kashmiri v SSHD [2007] UKHL 11, paras 11-20
While the case law of the Strasbourg court is not strictly binding, it has been held that domestic courts and tribunals should, in the absence of special circumstances, follow the clear and constant jurisprudence of that court: R(Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295, para 26; R(Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, para 20. It is unnecessary for present purposes to attempt to summarise the Convention jurisprudence on article 8, save to record that the article imposes on member states not only a negative duty to refrain from unjustified interference with a person’s right to respect for his or her family but also a positive duty to show respect for it. T
R (Simms) v SSHD [1999] UKHL 33 – Lord Steyn (leading judgment) *
In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.
The home sec. passed a law. “The contsrtaints
upon its exercise by Parliament are ultimately political not legal.
X (formerly known as Mary Bell) & Y v News Group Newspapers Ltd [2003] EWHC 1101 (QB), paras 58-61
Upon release from her life sentence, Mary Bell was given a new identity, since then, people discovered who she was and X and Y had to relocate
5 times. X And Y sought lifetime anonymity from the media. X medical conditions and absence of
objections from the media supported X’s application in balance of Art 8 and 10
Thompson & Venables v News Group Newspapers Ltd [2001] EWHC 32 (see e.g. extract in textbook chapter 9) *
Claimants were murderes convicted when they were 11. Injunctions that restricted the media came to an end when thy turned 18. They sought further injunctions. Art 2 ECHR imposes a positive obligation to protect individuals against violation. The claimants application was granted. Thus placing restrictions on the freedom of expression of the press. Needs a narrow interpretation in line with A10(2)
Nilsen v UK [2010] ECHR 470, paras 27-58 *
A murderer wished to publish his
autobiography from prison. The application was inadmissible. He had nothing of public interest. He
wished to use his memoirs as a platform to justify his conduct. The court was careful to distinguish
between causing offence to the public, which would not be a sufficient justification to restrict the
rights, and ‘an affront to human dignity’, which would .
animal defenders international v UK 2013 !!
Key questions arising from ADI are
a) what was the ‘quality’ of the parliamentary and judicial review of the necessity of the
measure [they seem appropriate on the facts]
b) what were the ‘legislative choices’ underlying the general measure [they are stated as a wish
to defend democracy]
c) is there any ‘risk of abuse’ if a general measure is relaxed [distortion of political debate by
rich individuals]
The measure in the scenario is more restrictive than in ADI because it prevents broadcast across
many mediums.
