topic 8 impact of hra and judicial action under hra

Question 1

impacts of hra

Answer 1

• vertical and horizontal effect
• sword and shield

Question 2

horizontal effect

Answer 2

between private parties

Question 3

ghaiden v mendoza

Answer 3

• 2 men in a relationship in a tenancy
• showed can have horizontal effect of convention rights

Question 4

campbell

Answer 4

• drug meeting
• court had to work out whether convention rights were applicable between the private newspaper and private individual
• decided was against her privacy

Question 5

using hra as a sword

Answer 5

• use it as a sword to challenge public authorities who have infringed their convention rights
• ghaiden v mendoza and campbell

Question 6

using hra as a shield

Answer 6

• gov trying to do something to you, you can protect yourself from them using the hra

Question 7

women from uganda with hiv

N V SSHD

Answer 7

• shield
• women from uganda whos claim for assylum was rejected but she had hiv

Question 8

concerns on freedom of expression

Answer 8

• campbell
• venables -life anonymity due to threat to their lives if their identities were found

Question 9

denbigh high school case

Answer 9

• Young women won an argument initially then lost in the HOL with her claim that she should be able to wear a jilbab to school which was prohibited in her school
• Headscarfe was permitted
• Said it was contrary to article 9 ECHR and of her right to education

Question 10

denbigh high school case outcome

Answer 10

• HOL ->
• Decided there has been no interreference with her right to manifest her religion
• She could have chosen to attend another school where she could have worn her jilbab
• HOL also said that even if it had been an interference with her right to manifest her religion, it would have been justified on the basis it was necessary to protect the rights of others at school
• in a human rights case, the court is not considering whether the decision making body followed the right procedure or considered the convention right in question, instead the court has to decide for itself whether the claimants rights have been infringed by a public authority

Question 11

Eweida v British Airways

Answer 11

• Challenged uniform rules in a workplace
• Woman wanted to wear a cross necklace for her religious beliefs
• Was prohibited under the uniform regulations for british airways
• Challenged it in court in the uk
• Went to ECHR
• Considered what was proportionate

Question 12

cases where proportionality has been applied

Answer 12

• denbigh high school
• quila

Question 13

quila

Answer 13

• increased age of spousal visa from 18-21 to prevent forced marriages
• Held that the rule had legitimate aim of protecting vulnerable individuals and was rationally connected to it BUT it was not justifiable as it did not achieve a fair balance between the confliciting interests
• insufficient evidence to show that raising the age limit deterred forced marriage to justify such a harsh infringement of the claimants’ right to family life.

Question 14

bull v hall

Answer 14

religion and equality
- Unmarried same sex couple not in a cvil partnership – which is the way to get the same rights as a married couple before same sex marriage act
- They wanted to stay in a hotel in cornwall
- Court of appeal and SC both agreed there was discrimination and indirect discrimination cannot be justified by religious beliefs

Question 15

problem with deportations/extradites and rights

Answer 15

• sending someone back to their home country could conflict with the right to private and family life, or prohibition of torture

Question 16

Hesham Ali

Answer 16

Involved the deportation of the appellant who arrived in 2000 as a child and stayed unlawfully as asylum claims failed

He was then convicted of drug offences and sentenced to 4 years in prison

He also had a relationship and 2 children

Once released from prison the uk sought to deport him as he was a foreign criminal, convicted offences so potentially can be deported

He argued his family rights as he had a family in the uk – wife and 2 children

6-1 SC dismissed the appeal and said the public interest in deporting a convicted criminal outweighed the article 8 arguments and family

Deportation was found to be acceptable – immigration rules require some consideration of the deportation

Question 17

N v SSHD

Answer 17

Woman who was ill – if she stayed in the uk would have better treatment, if she was deported to Uganda, she would likely get ill again

She was allowed to be deported

This was upheld

She brought it to ECHR who made same decision as the HOL – they said they accepted her life expectancy/quality of life would be effected but she wasnt critically ill anymore

Upheld that there wasn’t exceptional circumstances so the implementation to move the applicant to Uganda wouldn’t be a violation

Question 18

d – against uk

Answer 18

makes the sshd case controversial
Involved a man who was foreign, served a long prison sentence, diagnosed with aids, he sought permission to stay on the basis if he was deported back to his home country he would have a miserable life because he wouldnt get the drug he was getting in the uk, his life expectancy in the uk was low

In the echr they held that d could stay in the uk

He arrived and was diagnosed with aids a year after

They thought he would live to 8-12 months in uk half of this if he went back to his home country

Echr – in these exceptional circumstances and the critical stage in the applicants fatal illness the implementation of the decision to remove him from the uk would amount to inhumane treatment in violation to article 3

Question 19

Abu Qatada

Answer 19

Famous set of cases concerning Abu Qatada

From the labour party who introduced the human rights act disagreed with how the courts applied cases, up to conservative pm who then sent him back

Cases involved an individual who the uk argued was a potential terrorist / extremist – was from jordan so wanted to extradite him there

Jordan wanted him for terrorist fences

He argued if he was deported to jordan the evidence against him was gotten by torture, which would violate article 3 – he could say uk have a positive obligation to protect him -

After decades of cases – he was deported – compatible with european convention rights to do so

When he got back to jordan after his trial he was acquitted of charges to regards to bombing and terrorist offences

He was found innocent

Question 20

german and american girlfriend

Soering

Answer 20

Soering was German, girlified was American, killed the girls parents by slashing their throats in virgina in the usa

They fled to europe following the murder

Were arrested in england for ther reasons unrelated

Following their arrets in the uk there was an extradition request from the usa to have them back to usa for trial for the murder

Soering argued that if he was returned to the usa to stand trial for murder it was a capital offence in virginia he would almost certainly get the death penalty

Argument was this was a violation if the convention

No assurances by the usa that he wouldn’t be subject to the death penalty

At the first stage the european commission said no violation of the convention

This was changed by the eruopean court – they held unanmously that article 3 torture was relevant

Also argued that article 3 would be violated because of death row phenomenon – he could spend up to 70 years on death row in the us while they do the processes – this mental anguish while going through appeal would constitute the violation of article 3 – loss of life wasnt the problem it was the waiting around on death row that would be

Ended up dispatching him back to Germany – he was convicted and released in 2019

Girlfriend was also sentenced to prison

Question 21

hra impact on jr

Answer 21

Human rights issues can be raised in proceedings;

Courts can consider extent to which public authorities have met their human rights responsibilities;

Principles of proportionality are now standardised

UK Courts have evolved principle of ‘deference’ to recognise Parliamentary sovereignty

Question 22

when can proportionality be used

Answer 22

• when considering non absolute rights

Question 23

S+Marper

Answer 23

Concenred s who was an 11 year old child who had been arrested and charged with offences and then acquitted so not guilty

Marper had been arrested for domestic violence charges and the charges were dropped/discontinued when he reunited with his wife

There were fingerprints from both of them taken and other samples

At the time all finger prints were stored on the police data base once they were taken

Its lawful to remove dna to take fingerprints can be forced to do it when arrested

No question about the data being taken

The question was whether it could be stored forever in the criminal data base because these 2 people werent convicted, one of was charged and discontinued the other acquitted

echr - disproportionate as not necessary in a democratic society

Question 24

R (Nicklinson) v Minister of Justice

Answer 24

Had an extensive stroke which led to almost total paralysis

Could move is head a bit and his eyes

Could only communicate with a alphabet board or computer equivalent

He wished to die

He was seeking to claim that he should be allowed to choose to die even though it meant a doctor should be able to give him a lethal injection or the drugs

Under English law assisted suicide is illegal and could lead to murder

Suicide is legal in the uk

He claimed was a violation of convention rights

Only option to die would be to starve himself which would be a painful process as he couldn’t do anything else due to his disability

SC – difficult case – determine firstly is there a right to do – argued this isnt part of the right to life under european convention so wasnt an automatic right – easily dispensed with

Had to figure out if it was a violation of his rights to not be allowed to choose to die, is there incompatibility under section 4 or decide it wasn’t for the court to determine

Decided Parlaiment would have to determine it

They couldnt give him the right to die or be assisted in his suicide

Question 25

judicial deference

Answer 25

• judges defering to parliament
• nickleson case

Question 26

case for horzontal effect

Answer 26

ghaiden v mendoza and campbell

Question 27

cases for concerns about religion

Answer 27

• denbigh high school
• eweida
• bull v hall

Question 28

deportation cases

Answer 28

• heshem ali
• d agaisnt uk
• abu qatada
• soering

Question 29

proportionality cases

Answer 29

s and marper
daly
quila
r nicklinson