Cases - Human Rights

The Human Rights Act-1998 - Section 1 of the 1998 Act gives effect in UK law to what the Act refers to as Convention Rights. These are defined as being articles 2-12 and 14 of the ECHR, and some of the rights encapsulated in the protocols of the ECHR. In interpreting the rights, the Act requires domestic courts to take into account the Jurisprudence of the ECHR together with the decisions of the Commission and other C of E institutions

Is it a “constitutional statute”?;- Government white paper prepared before the Act is passed says not – it should be seen as a higher statute which can be construed to repeal other statutes passed before or after. But should it? Thoburn v Sunderland CC and the case of Ex Parte Simms suggest that it should

Waddington v Miah - attitude of UK courts towards European Convention on Human Rights prior to 1998 – willingness to use the statute to protect rights of citizens – but only if the words of an act were unclear or ambiguous. Where the language of the act clearly stated a position contra the ECHR, the act prevailed Eg. R v Inland Commissioners Ex Parte Rossminster

Application of act in UK –

Scope – R v Secretary of State for Defense – territorial reach of the act only rarely applies beyond the UK

Public Authorities – definition –

• R (on the application of Heather) v Leonard Cheshire Foundation (2002)
• Aston Cantlow and Wilmcote with Billesley Church Council v Walbank (2003), it was held that a parish church was not a public authority under the act. Its function was to carry out the religious mission of the Church of England.
• In the case of YL v Birmingham City Council (2007) it was held that a private healthcare company, Southern Cross Healthcare, did not constitute a public authority.

·         Whether the state has assumed responsibility for seeing that the task is performed

·         The public interest in having the task undertaken

·         Public funding

·         Whether the task involves the use of the statutory coercive powers of the state

·         Whether there is a close connection between the service provided and the core values underlying the Convention Rights

Declarations of Incompatibility – see Wilson v First County Trust Ltd (2003) for the circumstances under which a decree of incompatibly can be made. 

Doctrine of Deference – ProLife Alliance v BBC (2003)

Specific Cases under the Act – See Chart in your Notes:

Civil Liberties

Protection of Civil Liberties under the common law – what is the rule? Dicey – citizens permitted to do anything not prohibited under common law. Inadequate for civil liberties protections in the modern era.

Freedom of Expression -

• R v Secretary of State for the Home Department, Ex Parte Simms,.
• R v Governor of Full Sutton Prison (2004)
• R v Secretary of State for Environment, Food and Rural Affairs (2002); distinction between freedom of expression and freedom of information

Restrictions – 3 kinds

• Defamation
• Obscenity
• Privacy

Defamation-

Review-Defamation Act-

• Sim v Stretch (1936) - definition
• Goldsmith v Pressdram Ltd (Private Eye Prosecution – criminal libel –
• Bunt v Tilley (2006) liability in defamation proceedings for internet service providers – must be deliberate acts.

Note defenses to defamation –

·         Truth – Bookbinder v Tebbitt (1989)

·         Fair Comment – Slim v Daily Telegraph

·         Unintentional – Defamation Act S. 4

·         Absolute Privilege –Buckley v Dalziel (2007)  

·         Qualified Privilege – “Reynolds Privilege” from the case Reynolds v Times Newspapers (2001) – statement made without malice, fair and accurate coverage of political proceedings by newspapers.

Obscenity –

Obscene Publications Act – Articles that have the tendency to ‘deprave and corrupt’ e.g. Handyside v UK (1976), - restriction on book that encouraged promiscuity among teenagers not a DPP v Jordan (1977)

Privacy –

The law of confidence (i.e. information received in a manner in which the recipient ought to have known was confidential and should not be divulged)

• Schering Chemical v Falkman (1981)

Privacy rights – restriction on individuals right to privacy do not exist per se – can be gleaned from various acts and cases which give citizens right to privacy in certain areas of their lives – e.g. Entick v Carrington – right to exclude unwanted visitors from your home.

• See also – Malone v UK, Khan v UK – individual privacy
• Dudgeon v UK (1982)
• Douglas v Hello (2001)
• Campbell v MGN (2002)
• ADT v UK (2000)

Freedom of Association

R v Jordan and Tyndall (1963) prohibition put in place against persons who were members of fascist group as statute (Public Order Act 1936) prevents the creation of groups of a military or quasi – military nature.

Freedom of Assembly

Breach of Peace-Obstructing Police-Obstructing Highway

Breach of Peace:

• R v Howell 1982;
• R v Chief Constable of Devon and Cornwall, Ex Parte Central Electricity Generating Board (1982)
• Beatty v Gillbanks 1882 – cannot be held responsible for the unlawful acts of rival protestors (but see Nicol v Director of Public Prosecutions (1996) where the protestors were trying to provoke the anglers.
• Redmond-Bate v DPP 1999– Women Preachers arrested while preaching to a hostile crowd.  Held that free speech was to be protected as long as it did not encourage violence.
• There does not have to be proximity for there to be breach – Moss v McLachlan 1985 – miners also R v Chief Constable of Gloucestershire Constabulary 2004 – on their way to protest at an airbase – it was reasonable to stop them from protesting, but to escort them back to London was disproportionate.

Appleby v UK 2003 right of assembly must take into regard the rights of property owners.

Obstructing Police –

• Duncan v Jones 1936

Obstructing a Public Highway –

• Hirst v Chief Constable for West Yorkshire (1986)
• DPP v Jones

Public Order Act

Definition of a demonstration:

• Flockhart v Robinson (1950)
• Banning demonstrations- DPP v Jones (1999)

Requirement of notice – there has to be at least 6 clear days – except where its impractical to do so (this allows for more spontaneous demos. Police may impose conditions or ban processions, but must obtain consent from Home Secretary or local authority before a ban can put in place.

Police may enter private meetings where they reasonably expect a breach of the peace to occur.

 R v Commissioner of Police of the Metropolis (2007)

Offences under the Public Order Act include:

• Riot (12 or more persons present together threaten to use violence  for a common purpose),
• Violent Disorder (3 people, can include threat of violent conduct, enough to cause a reasonable person to fear for his safety), POA s.2, R v Fleming (1989)
• Affray (uses or threatens unlawful violence towards another and his conduct is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety) , POA s 2(5), (R v Sanchez 1996)
• Fear of Provocation of Violence (using threatening or insulting words to another), POA s.4, R v Horseferry Road Metro Stipendiary Magistrate, (Ex Parte Siadatan)
• Harassment, Alarm or Distress (threatening abusive or insulting words, or displays signs showing signs with threatening insulting writings, causing harassment, alarm and distress)!!!!!!!!
• R v Francis 2006
• Brutus v Cozens 1973
• Ex Parte Siadatan (1991)
• R v Stephen Miller (1999)
• Percy v DPP (2002)