Judicial Review Human Rights S3

Question 1

R v Offen (2001)

Answer 1

S2 of the Crime Sentencing Act provided that a compulsory life sentence would be imposed on a person who had committed two serious offences

This was in contravention with the ECHR as a person couldn’t be kept in prison for this amount of time if they were not a threat to the public

The definition of “exceptional circumstances” was stretched to encompass other factors

Question 2

R v A (No 2) (2001)

Answer 2

S41 o the Youth Justice and Criminal Act - All evidence about past sexual history between the claimant and the defendant were to be excluded from the trial unless in limited circumstances; this did not include a previous consensual activity between the Claimant and the Defendant

Stretched the interpretation to incorporate an implied provision that evidence or questioning which is required to ensure a fair trial under Art 6 could be allowed by the trial judge

Question 3

Ghaidan v Godin-Mendoza (2004)

Answer 3

Housing Act 1998 provided that the spouse of the diseased would become the statutory tenant, if they had been living “as his or her husband”

This was interpreted as “as if they were his wife or husband” to cinclude homosexual couples

Lord Nicholl - argued that this didn’t change the overall purpose of the Act
Lord Millet - “the pace of change is for Parliament”

Question 4

R (ex parte Anderson) v SoS for the Home Dept (2002)

Answer 4

S29 of the Crime Sentencing Act gave the Home Secretary the power to determine mandatory life sentences
Incompatible with Art 6- right to a fair trial
The court made a DOI
Lord Bingham “to do so would not be judicial interpretation but judicial vandalism”

Question 5

Re S and Re W (Minors) 2002

Answer 5

The Children Act 1989 - once the care order was approved by the court, it was to be carried out by the local authority
The CA agreed that this would infringe on the Right to Family Life essentially enabling matters to be brought back into the control of the courts
The HOL overturned this
Lord Nicholls- this meant giving the provision a completely different meaning - will have crossed the line between interpreting and amending