HUMAN RIGHTS ACT 1998 (Cases decided before and after the Act)

1. What was the attitude of the UK courts towards the Convention rights prior to the HRA 1998 ? The attitude of the UK courts towards the Convention has been the traditional one adopted in relation to treaties. Treaties form part of international law and have no place within the domestic legal order unless and until incorporated into law (the ECHR was persuasive in nature or viewed as an aid to statutory interpretation as in the case of Waddington v Miah [1974] 2 All ER 377). Because of taking such a stand, the UK has been found guilty of failing to take positive steps to protect basic liberties under the Convention. It is therefore important to make reference to the following cases: Malone v Metropolitan Police Commissioner [1979] Ch 344. In this case, Malone, a London antique deeler who had been accused of handling stolen goods, sued the policy for declaration that the police acted unlawfully in tapping his telephone on the authority of the Home Secretary. HUMAN RIGHTS ACT 1998(Cases decided before and after the Act)

2. What was the attitude of the UK courts towards the Convention rights prior to the HRA 1998? (Continuation) Malone v Metropolitan Police Commissioner [1979] Ch 344- Malone claimed that the tapping had infringed his rights of property, privacy, and confidentiality and the right to respect 'for his private and family life, his home and his correspondence' (see Art 8 of the ECHR). Sir Robert Megarry VC dismissed the action holding inter alia that Malone's right under common law had not been infringed; there was in English law no right of privacy and the user of a telephone could assume that his conversations were confidential. The case went to the European Human Rights Court and the Court found that the tapping of Mr. Malone's telephone constituted a breach of Art 8 of the ECHR which protects the right to privacy. Note: After the decision of the European Court of Human Rights, the UK Parliament reacted by passing the Interception of Communication Act 1985. HUMAN RIGHTS ACT 1998(Cases decided before and after the Act)

3. What was the attitude of the UK courts towards the Convention rights prior to the HRA 1998?- (Continuation) Golder v UK [1975] 1 EHRR 524 (Art 6 which is on prisoners right-right to fair trial). In this case Golder serving a prison sentence, wanted to sue a prison officer for defamation. His request to the Home Secretary to consult a solicitor was denied. The Court held that there was violation of Art 6. The Court (Human Rights Ct) further ruled that not only must access to law not be impeded by denial of legal advice or other means but that the State has a duty to ensure effective access to law. Cossey v UK [1992] 2 FLR 249 & Rees v UK [1987] 2 FLR 111 (right of transsexuals). The applicant both argued that English law, which prohibited them from entering into a valid marriage was contrary to the Convention rights i.e., the right to marry and found a family (Art 12). The Court (Human Rights Ct) while expressing some sympathy for the plight of transsexuals, in both cases declined to find English law in breach of the Convention. But nevertheless did find a violation of Art 8. HUMAN RIGHTS ACT 1998(Cases decided before & after the Act)

4. What was the attitude of the UK courts towards the Convention rights prior to the HRA 1998?- (Continuation) The Sunday Times v UK [1979] 2 EHHR 245- (Art 10 on freedom of expression/press). In this case, Sunday Times published an article concerning children born deformed as a result of their mothers taking the drug Thalidomide during pregnancy. The Manufacturers, Distillers, were involved in pending Court proceedings between the claimants for compensation. In Oct 1972, Distillers made representations to the AG, claiming the Sunday Times article would prejudice negotiations and would amount to Contempt of Court. The AG sought and was granted an injunction. The COA reversed the decision but, in July 1973, the HOL confirmed the injunction. As a result, the Sunday Times turned to Art 10. The Court of Human Rights held that the restriction imposed violated Art 10. Note: The Contempt of Court Act 1981 was enacted clarifying the law on pre-trial publicity. HUMAN RIGHTS ACT 1998(Cases decided before & after the Act)

5. What was the attitude of the UK courts towards the Convention rights prior to the HRA 1998?- (Continuation) Chahal v UK [1997] 23 EHHR 413. In this case, Mr. Chahal, a Sikh had been politically active in Sikh affairs. In 1990, the Home Secretary decided to deport him from the UK on the ground of national securtiy and the international fight against terrorism. He was arrested in 1990 and detained. Mr Chahal applied for political asylum claiming he would be a victim of torture if deported to India. The Home Secretary refused his request in 1991. There was no right of appeal to an independent tribunal because of the claim to national security. The matter was considered by an advisory panel including a COA judge. Mr Chahal was not informed of allegations against him, nor allowed to be represented by a lawyer. The deportation order was signed in 1991. He applied for judicial review, which was granted on the basis of inadequate reasons having been given. In 1992, the Home Secretary again refused asylum. Mr Chahal sought judicial review, which was denied. He appealed to the COA and it was held that on the basis of national security, Mr Chahal detention was not in violation of Art 5(1), since there was prima facie evidence that national security would be threatened by his release. HUMAN RIGHTS ACT 1998(Cases decided before & after the Act)

6. What was the attitude of the UK courts towards the Convention rights prior to the HRA 1998?- (Continuation) Chahal v UK [1997] 23 EHHR 413- However, the COA held that the UK authorities violated Art 3 (the right to freedom from torture or inhuman or degrading treatment) by refusing Mr Chahal asylum and threatening to deport him. The European Court of Human Rights held that the UK violated Art 3 of the Convention. There was also a violation of Art 5(4) in that Mr Chahal had been denied the opportunity to have the lawfulness of his detention decided by a national court. Granger v UK [1990] 12 EHHR. In this case Granger was refused legal aid for his appeal against conviction on a charge of perjury. The Crown was represented by Solicitor General for Scotland and junior counsel, whereas Granger was obliged to represent himself. The European Human Rights Court held that there was a violation of Art 6. Granger had no available remedy, and no right to make a fresh application for legal aid once his original application had been rejected, and he had no means to pay for representation. HUMAN RIGHTS ACT 1998(Cases decided before & after the Act)

7. What was the attitude of the UK courts towards the Convention rights prior to the HRA 1998?- (Continuation) Granger v UK [1990] 12 EHHR- The sole question for determination was whether for the interests of justice required him to be given free assistance. The appeal raised complex issues, and the consequences of the appeal involving a five-year sentence was serious. Granger was awarded compensation. (See also the case of Benham v UK [1995] The Times, 28 Jan, where the denial of legal aid also resulted in a violation of Convention rights). HUMAN RIGHTS ACT 1998(Cases decided before & after the Act)

8. What is now the attitude of the UK courts towards the Convention rights after the HRA 1998? By virtue of incorporating the ECHR into the HRA 1998, it can be said that the Convention rights has become part of the UK domestic law and thus no longer persuasive in nature. This is by virtue of sec 3 of the HRA 1998, which requires that statutory provision (s) be read and given effect to in a way which is compatible with Convention rights. It is therefore important to make reference to the following cases: R v Lichnial: R v Pyrah, Times LR 16 May 2001. The COA, Criminal Division, ruled that although there was no right to appeal against a sentence that was fixed by law, the Ct nevertheless had jurisdiction under sec 3(1) of the HRA 1998 to hear such an appeal if the statutory provision which required the imposition of such a sentence was incompatible with the Convention. A mandatory life sentence imposed on conviction of murder in accordance with sec 1(1) of the Murder (Abolition of Death Penalty) Act 1965 was not incompatible with Articles 3 (the right to freedom from torture or inhuman or degrading treatment) & 5 (freedom of person) of the Convention. HUMAN RIGHTS ACT 1998(Cases decided before & after the Act)

9. What is now the attitude of the UK courts towards the Convention rights after the HRA 1998? Price v UK [2001]. In this case, the applicant was disabled due Thalidomide and also suffered from kidney problems. She had been sent to prison for seven days for contempt of court. She spent the first night in a police cell which was furnished with a wooden bed which was not adapted for a disabled person. The applicant was unable to sleep in the bed, unable to reach the emergency buttons and light switch because they were out of reach, unable to use the toilet which was inaccessible. The cell was also cold. The following day she was transferred to New Hall Women's Prison health care centre. Again the bed was unsuitable for her use and she had to be assisted by male prison officers to reach the toilet. Adele Price claimed that she was subjected to humiliating treatment. The Court ruled that the detention of severely disabled person in unsuitable conditions amounted to degrading treatment contrary to Art 3. HUMAN RIGHTS ACT 1998(Cases decided before & after the Act)

10. What is now the attitude of the UK courts towards the Convention rights after the HRA 1998? Smith & Crady v UK [2000]. The Court examined the treatment of employees of the armed forces and held that the Ministry of Defence policy of excluding homosexuals from the Armed Forces was a violation of Art 8. R (Daly) v Secretary of State for the Home Department [2001] 2 WLR 1622. In this case, a prisoner claimed that there were unlawful searchers of correspondents in his prison cell. The HOL ruled that the requirement that prisoners leave their cells to enable prison officers to examine legal correspondence to ensure that it was bona fide was unlawful. The general policy was an intrusion into privileged legal correspondence which could not be justified under the Prisons act 1952. Alternatively, the policy could not be justified under Art 8(1). HUMAN RIGHTS ACT 1998(Cases decided before & after the Act)

11. What is now the attitude of the UK courts towards the Convention rights after the HRA 1998? TP & KM v UK (2001). In this case, a mother and a daughter had been separated for nearly a year by the local authority as a result of allegations that the child had been sexually abused by the mother's partner. Evidence, a video of an interview with the child and its transcript, was not made available to the mother. That evidence could have proven that there was no risk of the child being returned to her care. The local authority had failed to submit the issue to court and there excluded the mother from the decision-making process. The European Court of Human Rights ruled that a violation of Articles 8 & 13 had been committed by the UK i.e., there was a failure to respect the family life protected under Art 8 and have been denied an effective remedy. HUMAN RIGHTS ACT 1998(Cases decided before & after the Act)

12. What is now the attitude of the UK courts towards the Convention rights after the HRA 1998? Kelly v BBC [2001] 1 All ER 323. In this case K aged 16, had been made a ward of court but had joined a religious group and could not be located. The court's permission was sought to issue a press release seeking assistance to find him. The BBC had recorded an interview with K which they wished to broadcast. The court made an order restraining publication. On application to discharge the injunction, the court held that any such restriction was incompatible with Art 10. It was necessary to engage in balancing exercise weighing the need to protect the ward against the right of the press to publish. Brown v Scott (2002)-drunk driving: The Road Traffic Act required the suspect to declare who had been driving at the material time. The defendant argued that the rule infringed Art 6; the right to a 'fair trial', but the court held otherwise. Lord Irvine said that this case shows that HRA is not just protecting rights and freedoms but balancing between individual rights and the wider public interest. HUMAN RIGHTS ACT 1998(Cases decided before & after the Act)

13. Conclusion: Lord Irvine in his Article “Human Rights Act 2 Years On- An Analysis” (Nov 2002) stated that the HRA 1998 has proven to of 'profound significance'. He said that the overriding theme that emerges is that of a balance between scrutiny and deference between individual as well as the community and interpretations as well as declarations of incompatibility. He stated that the development of a domestic margin of appreciation in certain areas, the Government or Parliament is better placed to make judgments if it is prescribed by law intended to achieve a legitimate objective and is necessary in a democractic society. Lord Irvine and Lord Woolf were of the opinion that it is time to celebrate the success of the Act. The Act has acted as a catalyst in spearheading the rule of law in the UK and above all allows Parliament, Govt and the judiciary to work together. HUMAN RIGHTS ACT 1998(Cases decided before & after the Act)