Semester 2 - human rights

Question 1

which articles of the ECHR were not incorporated in the HRA 1998 ?

Answer 1

Art. 1 (obligation to respect human rights) => argued that the implementation of the HRA already complies with this

art 13 (right to effective remedy) => argued that the implementation of the HRA already complies with that esp. s 3 & s 4

Question 2

The Sunday Times v UK (No 2)

Answer 2

The Court in plenary session held that the injunction against the publication of the book did violate Article 10 because it was not necessary in a democratic society, i.e. the injunction was no longer sufficient in balancing national security interests versus freedom of expression after all the subsidiary publications had essentially published the same type of information that Spycatcher contained. The Court reasoned that while “injunctions were sought at the outset, inter alia, to preserve the secret character of information that ought to be kept secret,” this was not necessary once the material was no longer secret particularly in light of its publication in the United States.

The publication of Peter Wright’s book Spycatcher was initially met with injunctions due to the information contained in the book on the officers of the British Security Service (MI5)

Question 3

Moss v McLachlan [1985]

freedom of expression - freedom of association

Answer 3

The divisional court dismissed their appeals on the grounds that a policeman has a duty to prevent a breach of the peace which he reasonably apprehend, and the circumstances in this case justified preventative action - e.g. proximity to a protest.

Some miners were stopped by the police who reasonably and honestly believed that the miners were on their way to take part in a protest and that a breach of the peace would occur if they were allowed to continue.

The miners refused to turn back and were arrested.

Question 4

Anti-Terrorism, Crime and Security Act 2001

(adopted in two weeks)

Answer 4

s 23= a suspected international terrorism may be detained (whether temporarily or indefinitely)

Question 5

Terrorism Act 2000

Answer 5

s 44= stop and search without reasonable suspicion.

Question 6

McCann v UK

right to life - negative obligations

The obligations set out in Article 2 create a twofold duty: first, a positive duty to protect life and secondly, a negative duty to refrain from taking life.

Answer 6

The ECtHR considered whether the shooting was disproportionate to the aims to be achieved by the state in apprehending the suspects and defending the citizens of Gibraltar from unlawful violence; the court found a violation of article 2: the killing of the three IRA members did not constitute a use of force which was “absolutely necessary” as proscribed by Article 2-2.

The UK, Spanish and Gibraltar authorities were aware that the provisional IRA were planning a terrorist attack on Gibraltar. The target was believed to be the band and guard of the first Battalion of the Royal Anglian Regiment to take place during the ceremonial changing of the guard. There were armed officers on duty on the day who had been shown photos of the suspected terrorists. Two men and a woman were shot by officers. The officers believed the men were reaching in their pockets to detonate a bomb and the woman reaching in her handbag for the same reason. No weapons or detonating devices were in fact discovered. The soldiers admitted that they shot to kill but did so in order to prevent the destruction of more lives.

Question 7

Osman v UK

right to life - positive obligation

Answer 7

• the UK courts: the police owed no duty of care to the applicants. On appeal to Strasbourg, the ruling of the European Court of Human Rights was that such blanket immunity would be a breach of article 6 of the European Convention on Human Rights, but that there was no breach of articles 2 and 8

The first applicant, Mulkiye Osman, was the widow of Ali Osman, who was shot dead by Paul Paget-Lewis on 7 March 1988. The second applicant, Ahmet Osman, was her son. He was a former pupil of Paget-Lewis at Homerton House School, and was wounded in the shooting which led to the death of his father
The applicants’ complaints were directed at the failure of the authorities to appreciate and act on what they claim was a series of clear warning signs that Paget-Lewis represented a serious threat to the physical safety of Ahmet Osman and his family. The applicants argued that the police had been given information which should have made it clear that the individual posed a danger.

Question 8

Pretty v UK

postive obligations - right to life

Answer 8

The European Court of Human Rights found no violation of articles 2 (right to life), 3 (prohibition of torture), 8 (right to respect for private and family life), 9 (freedom of thought, conscience and religion) and 14 (prohibition of discrimination) of the European Convention on Human Rights. The Court concluded that Article 2 of the European Convention does not include the right to die, whether at the hands of a third person or with the assistance of a public authority. As regards Pretty’s right to respect for private life under Article 8, the Court considered that in this case the interference was justified as “necessary in a democratic society” for the protection of the rights of others.

Diane Pretty was suffering from motor neurone disease - a degenerative disease affecting the muscles, for which there is no cure. She was paralysed from the neck down, had little decipherable speech and was fed by a tube. Pretty wanted her husband to provide her with assistance in suicide. However, under the UK law this act would make her husband criminally liable.

Question 9

Ireland v UK

pre hra - right against torture

“Interrogation in depth” involved five techniques – wall-standing; hooding; subjection to noise; deprivation of sleep; deprivation of food and drink-

Answer 9

The Court also considered breaches of Art. 5 ECHR, which concerns, broadly, personal liberty and security (set out in full at [192]; see also [194–200]). This right, in contrast to Art. 3, is capable of qualification.
* The Court found that, considering Art. 5 in isolation, the United Kingdom had not met the requirements of Art. 5. When read with Art. 15, which permits derogation from certain Articles of the ECHR , however, the Court reasoned that the circumstances in Northern Ireland at the time justified the breaches of Art. 5. There was a ‘public emergency threatening the life of the nation’ and the measures adopted did not exceed those ‘strictly required’. The Court further accepted that it was unrealistic to expect a state to immediately establish an ideal regime balancing the rights of individuals in such circumstances. Instead, where a state derogates, ‘progressive adaptations’ to calibrate that derogation are acceptable

The Court also found no violation of Art. 1, Art. 6, Art. 5, Art. 14

The case centred on the use of ‘interrogation methods’ known as ‘the five techniques’ on individuals detained without trial by British security forces during the conflict in Northern Ireland in the 1970s. Whereas the Commission unanimously found that the five techniques amounted to torture under Article 3 ECHR— and indeed, the UK had accepted this finding and did not contest this before the Court— the Court, nevertheless, over-turned this decision and found that the five techniques amounted to inhuman and degrading treatment only.

Question 10

X (Minors) v Bedfordshire County Council

pre HRA

This case was subsequently referred to the European Court of Human Rights in Z v United Kingdom [2001] 2 FLR 612. They found the decision to breach of Article 3 and 13 of the European Convention on Human Rights. This was because it deprived the claimants of a remedy for inhuman or degrading treatment.

As a result, the House of Lords in JD v East Berkshire Community NHS Trust and others [2005] UKHL 23 held that X should not be followed insofar as it completely ruled out local authorities owing a duty to children when dealing with care proceedings. The Lords in X also suggested that doctors and social workers did not owe duties of care to children in abuse cases, because there would be a conflict between their duty to the council and their duty to the children. This was also disavowed in JD.

The decision appears to remain good law in relation to the other principles discussed in the case, however. In particular, it appears to be good law in relation to how cases where local authorities have failed to exercise a statutory power should generally be dealt with.

Answer 10

Local authorities do not normally owe duties of care for failing to exercise discretionary powers which depend on policy considerations.

the HoL held in favour of the local authorities

This case was a set of joint appeals by children in two categories of case. The first category was the abuse cases. These children alleged that they suffered harm because local authorities failed to properly investigate reports that they were being abused.
The second category was the education cases. These children alleged that the local authorities had negligently failed to make proper educational arrangements for them. In the Hampshire case, the child had special needs and was struggling at school. Despite this, the school failed to have him assessed. When his parents raised asked for an assessment, the headmaster incorrectly told them there was nothing wrong with the child. In the Dorset case, the local authority negligently assessed the child for special needs and incorrect advised his parents. In the Bromley case, the local authority initially failed to provide the child a school place. Subsequently, they only offered him places at special needs schools even though this was inappropriate.

Question 11

Soering v UK (1989)

Chahal v UK 1996
Living in the United Kingdom since the early 1970s, Chahal was detained pending deportation to India where it was claimed he would face torture ( Sikh separatist).
The Court emphasised the fundamental nature of Article 3 in holding that the prohibition is made in “absolute terms … irrespective of the victim’s conduct”.[3] The judgement builds on the landmark Soering v United Kingdom (1989), and was considered an example of the British government losing a seminal legal case in the European Court of Human Rights.
The Court also found “a violation of article 5 § 4 of the Convention

Answer 11

breach of article 3 but not of other art.
Soering Test:was whether there were substantial grounds for believing that the removal of asylum seekers to Rwanda would expose them to a real risk of ill treatment as a result of refoulement to another country and that the court must answer this question for itself, based on its assessment of the evidence before it

Jens Soering is a German national, who at the time of the alleged offence was a student at the University of Virginia. He and his girlfriend were wanted in Bedford County, Virginia, USA for the murder of his girlfriend’s parents. The couple disappeared from Virginia in October 1985, and were later arrested in England in April 1968 in connection with cheque fraud.4 Soering was interviewed by Bedford County police in the UK, which led to his indictment on charges of capital murder and non-capital murder. The USA commenced extradition proceedings with the UK under the terms of the Extradition Treaty of 1972, between the USA and UK.5 Mr Soering applied to the European Court on Human Rights (ECtHRs) alleging the breach of Article 3, Article 6 and Article 13 ECHR.

Question 13

• Bellinger (FC) (Appellant) v. Bellinger [2003] UKHL 21 = restrictive use of s 3

s 3 HRA

Lord Nicholls
- would require giving an extended meaning
- The recognition of gender reassignment has an effect on many different areas of law and thus should be dealt with by ‘a clear coherent policy’ rather than in a ‘piecemeal fashion’.

Answer 13

held:
The Court of Appeal and House of Lords dismissed the appeals. However, in recognising that the primary legislation deprived the claimant’s right to marriage (Article 12 ECHR + 8 ECHR - family life) the House of Lords issued a declaration of incompatibility under s4 HRA 1998

facts: A transsexual female married a man and sought a declaration from the court confirming their lawful marriage. The Matrimonial Causes Act 1973 states that a marriage may be entered into as between a “male” and “female” only – something which could not take into account gender reassignment, as is the case here. The court therefore refused to issue the declaration: since the transsexual female was, at birth, classified male, there could be no lawful recognition of the marriage.

Question 14

• Ghaidan v Godin-Mendoza[2004] UKHL 30 = extensive use of s 3

s 3 HRA

Answer 14

Held: Lord Nicholls : Under article 14 read together with article 8 violation of convention rights = they ultimately construed the act in compliance with Convention rights.

Discrimination is anathema to the rule of law, and the antithesis of a coherent legal regime; Furthermore, his Lordship was unconvinced by the suggestion that the 1977 Act was intended ‘to provide protection for the traditional family’ since many of the aspects of what might be regarded as ‘traditional’ (e.g. marriage) were no longer requirements for tenancy succession under the Act;

• then turn to s 3 of the HRA: While noting the ‘unusual and far reaching character’ of the s. 3 interpretive obligation, he did not regard it as giving the courts carte blanche. The court can give a meaning to the words that departs from their ordinary meaning, but they cannot reach an interpretation which is ‘inconsistent with a fundamental feature of the legislation’. ( Lord Millet dissented : it is the duty of parliament)
• on the facts no difficulty interpreting ⇒ Interpreting the aim of the 1977 Act, as amended, as being to protect the home created by the surviving partner and the deceased

*Facts:** Hugh Wallwyn-Jones and Juan Godin-Mendoza were in a relationship and lived together. When Wallwyn-Jones died, Godin-Mendoza intended to continue living at the property. The landlord, Ghaidan, sought possession of the flat. Ghaidan asserted, in line with pre-Human Rights Act 1998 (HRA) case law, that people in same-sex relationships did not come within the terms of the Rent Act 1977, Sch. 1, para. 2(2). This provision enabled those living with a tenant ‘as his or her wife or husband’ at the time of the tenant’s death, to succeed to the tenancy. While at first instance the Court agreed with Ghaidan (albeit on para. 3(1), not para. 2(2) of the Schedule, see [2]), the Court of Appeal overturned this decision. Article 14 (not a standalone right) + article 8

Question 15

A v Secretary of State for the Home Department 2005 (Belmarsh case)

s 23 of the Anti-Terrorism, Crime and Security Act 2001 - human rights

“The duty of the court is to check that legislation and ministerial decisions do not overlook the human rights of persons adversely effected.”

Answer 15

The House of Lords held that the provisions under which detainees were being held at Belmarsh prison (section 23) were incompatible with Article 5 of the European Convention of Human Rights – however the Home Secretary was not required to release the prisoners. The provision had the effect of discriminating between foreign nationals and nationals of the state. As a result of the Lords finding, they made a declaration of incompatibility under Section 4 of the Human Rights Act 1998.

The case began with nine men who challenged a decision of the Special Immigration Appeals Commission to eject them from the country on the basis that there was evidence that they threatened national security.

Of the nine appellants, all except two were detained in December 2001; the others were detained in February and April 2002 respectively. All were detained under the Anti-terrorism, Crime and Security Act 2001.[1] Part 4 of the Act provided for their indefinite detention without trial and deportation. However, the power was only applied to non-British nationals. Under section 25 of this Act, they had the right to appeal to the Special Immigration Appeals Commission against their detention

Question 16

Austin v Metropolitan Police Commissioner[2009] UKHL 5

freedom of assembly and public order - kettling

the case then appealed to the echr :
59. The Court does not consider that such commonly occurring restrictions on movement, so long as they are rendered unavoidable as a result of circumstances beyond the control of the authorities and are necessary to avert a real risk of serious injury or damage, and are kept to the minimum required for that purpose, can properly be described as “deprivations of liberty” within the meaning of Article 5 § 1.

= holds that there is no violation of article 5 of the ECHR

Answer 16

= art 5 was not applicable
art 5(1) is to prevent ‘arbitrary or unjustified deprivations of liberty.’ Mindful of the purpose and absolutist nature of the right, Lord Hope adopted a pragmatic approach taking into account a range of factors including the nature, duration, effect and manner of the detention. In his reasoning his Lordship referred to three key factors that must be met if the detention is to be deemed lawful. Firstly, the measures of confinement must be taken in good faith. Secondly, they must be proportionate to the situation that has made the measures necessary, and finally, they must not be arbitrary. Where these criteria are met it is unlikely that an individual whose ‘liberty’ is restricted by crowd control measures will be able to successfully claim an infringement of art 5.

On 1 May 2001 (May Day), the appellant joined a crowd of demonstrators in central London to protest against capitalism, globalisation and third world poverty. Similar protests had been held in previous years and had resulted in public disorder and some violence. Fearing a repeat incident, city police set up a cordon restricting the movement of the 3000-person crowd that had gathered to protest. Police informed the crowd that they were being cordoned off to prevent a breach of the peace and that they would be released as soon as practicable. In the end the crowd was confined for a period of 7 hours.

In 2002, the appellant brought proceedings against police arguing that as a result of the confinement her right to liberty under art 5(1) of theConventionhad been breached. The trial judge held that although the effect of the police cordon constituted a deprivation of liberty under the meaning of art 5(1) the containment was justified as it was accepted that police reasonably believed that the demonstrators were likely to engage in some form of unlawful activity. This belief was based on provocative materials that demonstration organisers had distributed prior to the protest.

The woman appealed to the House of Lords.

Question 17

R (Hicks) v Commissioner of Police for the Metropolis [2017]

art 5

Answer 17

= The fundamental principle underlying article 5 is the need to protect the individual from arbitrary
detention, and an essential part of that protection is timely judicial control. However, article 5 must not
be interpreted in such a way as would make it impracticable for the police to perform their duty to
maintain public order and protect the lives and property of others [

A number of protesters were arrested in the run up to the royal wedding between Prince William and Kate Middleton in April 2011 and then released after the festivities were over. The legal claim in this case centred on the deprivation of liberty under Article 5 of the European Convention on Human Rights and in particular the exceptions that exist under Articles 5(1)(b) and (c). By the time the case was decided upon in the Supreme Court a similar case had already made it to the European Court of Human Rights (Ostendorf v Germany [2015]) but it was unclear what impact this would have on the final ruling for Hicks.

Question 18

R (Gillan and Quinton) v Metropolitan Police [2006]

terrorism art 10 & 11

Gillan and Quinton v UK [2010] (violation of article 8 not art. 5)

The ECtHR : held that the power (the unlawful police use of ­counter-terrorism stop and search powers on peace protesters and photographers) was ‘not sufficiently circumscribed’.

But the judgment – in the case of Kevin Gillan and Pennie Quinton, who were stopped and searched on their way to a demonstration outside the Excel Centre in east London in 2003 – is far wider than that. It criticises the entire process by which section 44 stop and searches under the Terrorism Act 2000 are authorised by the home secretary, and highlights a lack of adequate parliamentary and legal safeguards against abuse.

The judges say that because officers’ decisions about whether to stop and search someone in a designated area are based solely on a hunch or professional intuition, the effect is “a clear risk of arbitrariness”

“the risks of the discriminatory use of the powers” were “a very real consideration”.

Answer 18

Appeal dismissed; the authorisation and confirmation were lawful and did not constitute a breach of the European Convention on Human Rights
The stop and search regime found in the Terrorism Act 2000 was not held to be unlawful or in breach of the European Convention on Human Rights
Lord Bingham laid down a test for lawfulness under the under the ECHR: an exercise of power is lawful provided that it is governed by clear and publicly accessible rules of law and the power must be exercised arbitrarily

The Assistant Commissioner of the Metropolitan Police authorised, under s44 and s45 Terrorism Act 2000, the police to stop and search members of the public for 28 days
This authorisation was subsequently confirmed by the Secretary of State for the Home Department
A student and a journalist were stopped and searched on their way to a demonstration in East London – nothing incriminating was found
They brought proceedings against the Commissioner of Police of the Metropolis and the Home Secretary, for judicial review of their treatment, the authorisation, and the confirmation

Question 19

R (Prolife) v BBC [2003] UKHL 23

freedom of expression - Taste and decency

see also : Belfast city v Miss Bethavin
BCC refused to give licenses for any sex shops in the area
MB, who had been refused a licence, applied for judicial review on the basis that the decision infringed article 10 ECHR – the right to free speech.
The Northern Ireland Court of Appeal held that BCC had failed to consider MB’s article 10 right and whether interference was justified in its decision making process, and thus MB’s Convention rights had been violated not by the decision to refuse the licence but by the way it arrived at the conclusion
BCC appealed to the House of Lords
Held (House of Lords)
Appeal allowed; it was lawful to restrict MB’s freedom of expression; the procedural approach of the NI Court of Appeal was rejected
= Under the HRA, the decision maker does not have to show that it carried out a proportionality inquiry itself to prove that its measures were proportionate

Answer 19

Appeal allowed; the BBC was entitled to refuse to broadcast the graphic images on the grounds of avoiding offending public feeling

P was a political party which focused on a single policy issue – abortion
B refused to broadcast a party election broadcast showing graphic footage of abortions since this would violate their duty to ensure ‘taste and decency’ under their guidelines and the Broadcasting Act 1990 s.6(1)(a).
P appealed for judicial review on the basis that the refusal to broadcast constituted a violation of Article 10 ECHR – the right to free speech, and was thus unlawful
The Court of Appeal allowed the appeal, holding that the refusal was unlawful on Article 10 grounds contrary to s.6 HRA 1998
B appealed the decision of the Court of Appeal

Question 20

R v Secretary of State for the Home Department ex p Brind and others [1991]

freedom of speech - art 10 - pre hra

this reluctance to rely on proprtionality is in stark contrast with the future case of Daly and Pham.

Answer 20

Their Lordships were unanimous in their view that the Home Secretary’s exercise of discretion was reasonable, in a Wednesbury sense, that the doctrine of proportionality should not be incorporated into domestic law, and that the ECHR could not be relied upon to create additional obligations on ministers exercising their discretion where there was no ambiguity in the statutory language granting that discretion.

The Home Secretary imposed restrictions, via directives issued on 19 October 1988 to the British Broadcasting Corporation (BBC) and the Independent Broadcasting Authority, on the broadcasting of statements issued by proscribed organizations. The restrictions stipulated that the voice of the spokesperson for the proscribed organization could not be broadcast; the audio had to be dubbed over with an actor’s voice. The relevant text from the directive, further correspondence between the Home Office and the broadcasters, and information given by the Secretary of State to Parliament can be found in the judgments of Donaldson MR (at 711–15) and Lord Ackner (at 752–6).

The broadcasters contended that the Home Secretary did not have the power under s. 29(3) of the British Broadcasting Act 1981 and, in the case of the BBC, Clause 13(4) of the licensing agreement, to impose such restrictions. They said the restrictions were a disproportionate and unjustified breach of Art. 10 of the European Convention on Human Rights (ECHR) (Lord Ackner, at 759, 760 et seq).

Question 21

Sunday Times v UK

Question 22

Goodwin v UK

freedom of speech - pre hra

Answer 22

The Grand Chamber of the European Court of Human Rights (“ECtHR”) in its judgment found that, because the publication of the confidential information was already prohibited by injunction, the order for disclosure of the source was not “necessary in a democratic society” as required by Article 10 European Convention on Human Rights (“ECHR”). Accordingly, the order breached Article 10 ECHR. (Para 37)

The company’s legitimate reasons for wishing disclosure, namely to prevent further dissemination of the confidential information (other than by publication) and to take action against the source who was presumed to be an employee, were outweighed by the interest of a free press in a democratic society (para 38).

The applicant was a trainee journalist with The Engineer magazine, who received confidential information regarding the financial state of a company, Tetra Ltd. The source provided the information through telephone, and wished to remain anonymous. The information was unsolicited and was not given in exchange for any payment. It was provided on an unattributable basis. The information itself appeared to come from a confidential corporate plan, one copy of which had gone missing.
On 22 November 1989, Mr. Justice Hoffmann ordered the applicant to disclose by 3 p.m. on 23 November his notes on the grounds that it was necessary “in the interests of justice,” within the meaning of section 10 of the 1981 Act, for the source’s identity to be disclosed in order to enable Tetra to bring proceedings against the source to recover the document, obtain an injunction preventing further publication or seek damages for the expenses to which it had been put. (Para 15)

The applicant appealed unsuccessfully to the Court of Appeal and House of Lords. He refused to disclose his source and was fined £5,000 for contempt. He complained of a violation of Article 10 of the Convention.

Question 23

Bowman v United Kingdom [1998] ECHR 4

contrast with the us case of Buckley v Valeo - unlimited spending in elections

Answer 23

the ECHR found a violation of art 10 of freedom of speech, the restriction was not proprtionate
he restriction was prescribed by law, and pursued a legitimate aim of protecting others’ rights: candidates and the electorate, by seeking to secure equality among candidates. Freedom of expression and the right to free elections were the foundation of a democratic system, but election spending could undermine equal elections. However, a £5 spending limit was practically an absolute bar on distributing information to influence voters. Given the lack of restrictions on political parties, it was not a proportionate response to secure equality between the candidates.

in response to this the spending was increased to £500

Phyllis Bowman, an anti-abortion campaigner, distributed 25,000 leaflets in Halifax before the 1992 general election on the positions of three candidates on abortion. She was prosecuted under the Representation of the People Act 1983 section 75 for the offence of spending more than £5 on publications aiming to promote a candidate six weeks before an election, without authorisation. She was acquitted because the summons was issued out of time. However, Bowman contended at the European Court of Human Rights that her prosecution was an unjustifiable interference with her freedom of expression under the European Convention on Human Rights, article 10.

Question 24

Irving v Penguin Books Ltd

contrast see brandburg v Ohio on the kkk = they were successful in a case bc argued that they were acting within the scope of the 1st amendment.

Answer 24

he lost his libel case against an Amercian authior who accused him of denying the scale of the Holocaust

= Holocaust denial, refused to admit the gravity of the Holocaust.

Question 25

Norwood v United Kingdom [ECtHR 2004]

see also
urgNB: Frank Hester=> racist comments of Diane Abbott

Gina Miller attacked after exercising freedom of speech.

Cyberflashing will become a new criminal offence.

Answer 25

: Not protected by freedom of speech

Article 17 of the Convention

“Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”

Poster on apartment window calling for the removal of all Muslims from Britain (‘Islam out of Britain – Protect the British People’). Police removed poster and Norwood complained

Question 26

Gilham (Appellant) v Ministry of Justice (Respondent) [2019] UKSC 44

freedom of speech - art 10

Answer 26

Held: The Supreme Court of the United Kingdom ruled the Employment Rights Act 199 should be read and given effect so as to extend its whistle-blowing protection to the holders of judicial office.

“It is not enough to say that judges are well protected against dismissal and other disciplinary action if they speak their minds. They are not so well protected against the sort of detriments which are complained about in this case – bullying, victimisation and failure to take seriously the complaints which she was making.” [Para 26] Lady Hale

The appellant, Gilham, is a district judge appointed in 2006 who subsequently worked contested major cost cutting reforms that were announced. The appellant raised several concerns relating to the cuts, particularly about the lack of appropriate and secure courtroom accommodation, the severely increased workload placed on the district judges, and administrative failures. On raising these complaints, she suffered various harms including bullying, ignored and undermined by her fellow judges and court staff. Gilham argued to be covered by the definition of “worker” under Section 230(3)(b) of the 1996 Employment Rights Act (the Act) to claim protection given to whistler-blowers under the Act. Section 230(3)(b) defines a worker as an individual who works under “any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.” The Ministry of Justice or the respondent objected that the appellant was not a “worker”

Question 27

Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22

freedomof speech

In substance, this case concerns what might colloquially be characterized as an invasion of privacy claim against the Mirror by Campbell—however in the case it is treated as a breach of confidence (at [11]). Our interest in this case is directed at their Lordships’ discussion of whether the Human Rights Act 1998 (HRA) creates a right to privacy enforceable against other individuals. Such a right would give the HRA ‘horizontal’ effect, as distinct from the ordinary ‘vertical’ effect of rights as between the individual and the state.

Answer 27

Their Lordships ruled by a majority of 3:2 (Nicholls and Hoffman dissenting) to allow Campbell’s appeal.
Lord Hope and Lady Hale accorded particular weight to the photographs and accompanying captions, Lord Hope regarded them as tipping the balance between the Mirror’s Art. 10 rights and Campbell’s Art. 8 rights under the European Convention on Human Rights (ECHR) in the latter’s favour

model had alcohol problems and was photographed by a tabloid. She claimed that privacy rights had been violated.

Question 28

R (Begum) v. Headteacher and Governors of Denbigh High School [2006] UKHL 15

freedom of thought - freedom of religion

See baroness Hale ‘s comments on the nature and the role of uniforms intending to ‘ smooth over the religious, social dissensions’

Answer 28

= the school was in my opinion fully justified in acting as it did.
Lord Bingham (p. 34)

It would in my opinion be irresponsible of any court, lacking the experience, background and detailed knowledge of the head teacher, staff and governors, to overrule their judgment on a matter as sensitive as this.

she wanted to wear a nikab( relgious headwear) at school

Question 29

EWEIDA AND OTHERS v. THE UNITED KINGDOM 2013

freedom of though - freedom of religion

Answer 29

• Ms. Nadia Eweida, Ms. Lillian Ladele, Ms. Shirley Chaplin and Mr. Gary McFarlane
• 1 and 2: Wearing of cross as a British airways employee: manifestation of belief? Won the case ( but wearing a cross as a NHS: was held to be forbidden – can cause injury )
• 3 and 4: refusal to provide services to homosexual couples (both lost the case)

this case was a joint appeal concerning different case (4 defendants)

Question 30

Albert v Lavin

freedom of assiociation - pre hra

Answer 30

“… every citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will.”

Question 31

Handyside v. the United Kingdom, § 49; Observer and Guardian v. the United Kingdom

freedom of speech

Answer 31

art 10 is qualified right and while it was restricted it had not been breached by the house of lords. and the restriction of Handyside was justified.

Handyside purchased the publication rights to a book—The Little Red Schoolbook (1969)— and arranged for it to be published in the United Kingdom (at [12]). It was published in the United Kingdom in 1971. Following publication, a number of very critical reviews and news stories appeared. Warrants were issued under the Obscene Publications Act 1959 to, inter alia, seize copies of the book from Handyside’s premises (at [13–15]; on the Act see [24–26]). The following month a summons was issued under the 1959 Act against Handyside (at [16]). Handyside was found guilty (at [17]). He appealed, unsuccessfully (at [18]).

The book targeted school children (at [20–23]). The domestic courts viewed it as ‘subversive’ (at [31]); were concerned that, among other things, the illegality of certain conduct was not made clear (at [32]); and that, while certain passages were ‘compassionate, understanding and valuable’, they were ‘hopelessly [damned] by [their] setting and context’ (at [34]). As such they viewed the text as likely to ‘deprave and corrupt’ within the meaning of the 1959 Act (at [33]; see also [52]).

Handyside argued that the application of the law in the United Kingdom, while correct in domestic law (at [18], [44]), constituted a breach of his rights under Art. 10 and Art. 1 of Protocol 1 of the European Convention on Human Rights (ECHR) (at [41]).

Question 32

Duncan v Jones

breach of peace - freedom of speech

Answer 32

Held: The divisional court upheld the conviction ⇒ but likely restricted to cases where the defendant has previously been responsible for public disorder/public unrest. (distinguished from Beatty)

Facts: Mrs. Duncan was about to hold a meeting outside a training center for unemployed when she was forbidden to do so by Jones who was a police officer. The reason for the police officer’s action was that a disturbance in the training center about a year earlier had been attributed to a speech made by Mrs. Duncan, and it was feared that similar results might occur again. Mrs. Duncan ignored the police officer’s request and upon attempting to start the meeting she was arrested and charge with “obstructing a police officer in the execution of his duty” contrary to the Prevention of Crimes Acts, 1871 and 1885. The prosecution did not allege any obstruction of the highway, nor any incitement or provocation to commit a breach of the peace. Mrs. Duncan was convicted on the grounds that she must have known the probable consequence of her holding a meeting would be a disturbance, and that she was not unwilling that such a consequence should ensue;

Question 33

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

breach of peace

40.Court of Appeal: In the present case, Mr Lambert reasonably and honestly believed that, if the coaches were allowed to proceed to Fairford, there would be breaches of the peace.

55. There was no reason (other than her refusal to give her name, which however irritating to the police was entirely lawful) to view the claimant as
    other than a committed, peaceful demonstrator. It was wholly disproportionate to restrict her exercise of her rights under articles 10 and 11 because she
    was in the company of others some of whom might, at some time in the future, breach the peace.
56. grant the claimant a declaration that the Chief Constable’s actions which are the subject of her first complaint were unlawful because they were not
    prescribed by law and were disproportionate

Answer 33

Allowing L’s appeal and disallowing the Chief Constable’s cross-appeal:

(1) The Chief Constable’s actions were not prescribed by law. They were not confined to the closely defined powers and duties created by Parliament, which were not supplemented by a general power to do whatever was reasonable in the circumstances. Neither was there a power to take action short of arrest to prevent a breach of the peace which is not sufficiently imminent to justify arrest. The duty to prevent breaches of the peace must be kept within proper bounds.

(2) The Chief Constable’s actions were disproportionate because they were premature and indiscriminate. It was wholly disproportionate to restrict L’s exercise of her rights under articles 10 and 11 because she was in the company of others some of whom might, at some time in the future, breach the peace.

Facts: Officers from seven police forces, acting under the direction of the Gloucestershire constabulary, stopped 3 coaches from London carrying 120 anti-Iraq war protesters in March 2003. The protesters had been planning to join thousands of people in a demonstration against the war at RAF Fairford, from which part of the US-led attack on Iraq had been launched two days before. At least some of the protesters, including L, had purely peaceful intentions, but some items suggestive of violent intent were discovered by the Police on the coaches. The coaches were returned to London under police escort, without any opportunity for all 3 of the passengers (who were designated speakers) to disembark.

L sought judicial review of the actions of the Chief Constable in (1) preventing her from attending the protest and (2) forcibly returning her to London. The Divisional Court rejected her first complaint but upheld her second. The Court of Appeal upheld that decision. Both parties appealed.

Question 34

DPP v Jones 1999

breach of peace - freedom of speech

Answer 34

Held: appeal allowed (Slynn, L.J.J. and Hope, L.J.J. dissenting),
* a public highway was a public place where any activity which was reasonable, did not involve a public or private nuisance and did not obstruct the highway should not be regarded as a trespass. A right of peaceful assembly on the public highway could therefore exist subject to those restrictions. Limiting the lawful use of the highway to use which was “incidental or ancillary” to the right of passage would impose an unrealistic and unjustified restriction on everyday activities. It was a matter of fact and degree for the magistrates in each case whether a particular use was reasonable and did not conflict with the right to pass and repass. Per Slynn, L.J.J. and Hope, L.J.J. dissenting, that the right of the public to use the highway was restricted to the right of passage and reasonable incidental use. To go further would erode the rights of private landowners.

Facts: J and another were involved in a peaceful, non obstructive demonstration of 21 people on part of the highway near Stonehenge, which was the subject of an order under thePublic Order Act 1986 s.14A(2)prohibiting trespassory assemblies. They were arrested and convicted of trespassory assembly under s.14B(2). Their appeal against conviction was allowed by the Crown Court, which accepted their argument that a peaceful and non obstructive assembly was a reasonable use of the highway and not unlawful. The prosecution successfully appealed by way of case stated and the convictions were restored, the court holding that the public’s right to use the highway was restricted to passing and repassing and any activities ancillary or incidental to that right, and that a public assembly was not incidental to the right of passage. J appealed to the House of Lords.

Question 35

Mayor of London(on behalf of the Greater London Authority) v Hall[2011] 1 WLR 504

breach of peace

Answer 35

Held: while the protesters Article 10 and 11 rights are undoubtedy engaged,it is very difficult to see how they can prevail against the will of the landowner,when they are continuously and exclusively occupying public land, breachingnot just the owner’s property rights and certain statutory provisions, butsignificantly interfering with the public and convention rights of others.

Right to a Fair Trial

The right to a fair trial was challenged based on a lapse in the initial proceedings that ultimately created an abbreviated procedure. The Court held the abbreviated procedure was appropriate to deliver prompt injunctive relief and that it was not in violation of the defendants’ art 6 right.

Compliance with Articles 10 and 11 of the Convention and Proportionality

The Court of Appeal held arts 10 and 11 did not provide an adequate defence for the protestors.

Facts: In May 2010, a group established a camp named ‘Democracy Village’ in Parliament Square Gardens (‘PSG’) in London to hold demonstrations against the government. Over a one month period Democracy Village increased in size and became self-sustained. The Court estimated the damages to the grounds amounted to £50,000 as a result of the protestors’ occupation of PSG.

On 3 June 2010, the Mayor of London claimed an order for possession of PSG on behalf of the Greater London Authority and sought an injunction against the protestors. The defendants challenged the Mayor’s statutory right to claim possession of the property and challenged the injunction as a violation of their right to freedom of expression and freedom of peaceful assembly and association under arts 10 and 11 of theConvention. The High Court held the Mayor was entitled to the order for possession and that the injunction was not in violation of the protestors’ rights. On appeal the defendants challenged their right to a fair trial under art 6 of theConvention, whether the claim for possession was properly constituted, whether the order for possession and injunction complied with arts 10 and 11 of theConventionin regards to proportionality,**and whether the injunction was a permissible remedy in aid of criminal law sanctions.

Question 36

City of London v Samede and others[2012] EWCA Civ 160; [2012]WLR(D)41

breach of peace - freedom of assembly.

Answer 36

Held:Application rejected

(1) In the circumstances P’s rights under art.10 and art.11 were engaged in relation to the maintenance of the camp

(2) P’s argument amounted to saying that art.10 and art.11 effectively mandated the court to hold that the camp should be allowed to continue in its current form for the foreseeable future ⇒ determining the limits to the right of lawful assembly and protest on the highway was fact-sensitive and relevant factors included the extent to which the continuation of the protest would breach domestic law

Facts: The applicants (P) applied for permission to appeal against a decision granting the respondent local authority orders for possession in respect of two areas of land owned by it and occupied by P, and injunctions and declarations.

P and others had set up a camp, consisting of a large number of tents, next to St Paul’s Cathedral in the City of London. Many of the occupiers of the camp had designated their organisation the “Occupy Movement”. The majority of the area occupied by the camp consisted of highway land owned by the local authority, but also included other land owned by the church. The local authority sought orders for possession of the highway land and injunctions requiring removal of the tents and restraining the erection of tents there or on adjoining land in the future. The judge found that the local authority was entitled to possession of the areas it owned, subject to consideration of P’s rights to freedom of expression and of assembly under art 10 and 11 echr. He concluded that the factors for granting the relief sought easily outweighed the factors against and gave judgment in favour of the local authority. P submitted that an order which closed down the camp was an unjustified interference with their Convention rights; alternatively the judge should have made more limited orders.

Question 37

DPP v Ziegler 2021 UKSC

breach of peace - freedoms- ECHR

= this case was seen as significant but it has been interpreted extremely narrowly.

Answer 37

held: appeal allowed. Convention rights were able ti be read as a lawful excuse for an offence.

= the Supreme Court held that section 137(1) of the 1980 Act must be read so as to comply with the ECHR

facts: The Appellants took part in a demonstration protesting the Defence and Security International weapons fair at the Excel Centre. They were charged with obstructing the highway, contrary to section 137 Highways Act 1980. They were acquitted at Trial because their actions fell within the “lawful authority or excuse” defence contained in section 137 Highways Act 1980. The Director for Public Prosecutions appealed successfully by way of case stated to the High Court. The Appellants now appeal to the Supreme Court.

issue: In criminal proceedings arising out of protest activity: (1) is deliberate physically obstructive conduct by protesters capable of constituting a lawful excuse for the purposes of s.137 of the Highways Act 1980?; and (2) what is the test to be applied by an appellate court to an assessment of the decision of the trial court in respect of a statutory defence of ‘lawful excuse’ when Convention rights are engaged in a criminal matter?

Question 38

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

breach of peace

Answer 38

held: The Supreme Court has held that the clause is compatible with the ECHR. Whilst we welcome enhanced legal protections for those accessing abortion services, we are disappointed that the Supreme Court declined to find that courts are required to undertake a proportionality exercise when deciding whether to convict in circumstances where Articles 9, 10 and/or 11 are engaged. If there is no “lawful excuse” mentioned in the statute, it supposes that the statute in general is proportionate ⇒ undermines legal certainty

facts: The case considers one of the Bill’s clauses, which makes it an offence for a person to act in a designated safe access zone “with the intent” of, or “reckless as to whether” their act has the effect of “influencing”, “directly or indirectly” a person attending a designated abortion clinic, their accompaniers, or people working at the premises.
The Attorney General for Northern Ireland asked the Supreme Court to consider whether this constitutes a proportionate interference with the rights to freedom of conscience, expression, and assembly in Northern Ireland, as protected under Articles 9, 10 and 11 of the European Convention on Human Rights (“ECHR”). The Attorney General argued that the offence was incompatible with the ECHR, in particular because the clause does not include a “reasonable excuse” defence. The case does not concern wider issues regarding abortion services in Northern Ireland, or safe zones more generally.

Question 39

Morris v UK

right to fair trial

despite the ‘mirror approach’ this was not followed in the subsequent case of Spear v

Answer 39

The European Court of Human Rights found that the Applicants’ right to a fair trial was violated under Article 6 of the European Convention of Human Rights and that their leaflets were protected under Article 10’s freedom of expression. The European Court reasoned that since there was a vast inequality between Steel and Morris and McDonald’s, denying legal aid to the Applicants deprived them of their ability to present the case effectively, and therefore violated Article 6. In addition, the court noted that there was strong public interest in the opinions of non-mainstream groups regarding the environment and health. Lastly, the court drew upon the need for democratic societies to allow all campaign groups, including London Greenpeace, to carry out their activities.

The Applicants, Steel and Morris, were associated with the activist collective London Greenpeace, which began an anti-McDonald’s campaign. The Applicants handed out partially libelous leaflets critical of McDonald’s, for which they were imposed with a hefty fine.

Question 40

Bank Mellat v Her Majesty’s Treasury (No. 2) [2013] UKSC 39

the courts approved the 4-limbed proportinality test but did not agree on its 3 rd.

Answer 40

Appeal allowed; The order was disproportionate and unlawful

The Treasury (T) imposed financial restrictions on Bank Mellat (BM) on the grounds that it financed Iranian nuclear weapon development
BM applied for judicial review on the ground of interference with article 1 ECHR – the right to property, including peaceful enjoyment of business assets

Question 41

Hirst v United Kingdom (No.2) 74025/01 [2005] ECHR 681

However, the UK government has refused and still refuses to comply with the judgment.

Answer 41

Application allowed (Majority of 12 to 5)
The UK’s automatic ban on prisoners’ voting violated Art.3 P1

An application was brought forward by Hirst, a prisoner serving a discretionary life sentence for manslaughter, which argued that the disenfranchisement of those serving a custodial sentence under the RPA 1983 s.3 violated Article 3 Protocol 1 of the ECHR (right to free elections)
The United Kingdom argued that Member states had a wide margin of appreciation in determining matters under Art.3