Part I: The Human Rights Act = 1
1 Background and Interpretation = 3
1. The Protection of Human Rights Prior to The Human Rights Act = 3
2. Background to The Human Rights Act = 4
2.1 The Incorporation Debate = 4
2.2 The Human Rights Bill = 6
3. Purpose of The Human Rights Act = 8
4. Structure of The Human Rights Act = 9
5. Convention Rights Given Further Effect = 10
5.1 The Nature and Scope of The Convention Rights = 10
5.2 The Convention As a 'living Instrument' = 12
5.3 The Non-absolute Nature of The Majority of The Convention Rights = 13
5.4 Derogations and Reservations = 14
6. Principles of Interpretation = 15
7. The Relationship With Strasbourg Jurisprudence = 17
7.1 Section 2 of The Human Rights Act = 17
7.2 The Obligation to Take Into Account and Follow? = 18
7.3 a More Generous Interpretation of Convention Rights = 21
7.4 a Conflict between Domestic Authority and Subsequent Strasbourg Authority = 23
8. Other Aids to Interpretation = 23
8.1 Judgments of The Privy Council in Devolution Cases = 23
8.2 Case Law and Instruments from Other Jurisdictions = 25
8.3 Reports of The Joint Committee on Human Rights = 26
2 The Benefit and Burden of The Human Rights Act = 27
1. Introduction = 27
2. The Benefit of Convention Rights: Victims = 28
2.1 Section 7 Human Rights Act = 28
2.2 The Victim Test and Sections 3 and 4 of The Human Rights Act = 29
2.3 Categories of Victim = 31
2.3.1 Core Public Authorities = 31
2.3.2 Potential Victims = 31
2.3.3 Relatives of a Victim = 32
2.3.4 Those Who Have Brought Proceedings before The European Court of Human Rights = 33
2.3.5 Non-nationals and Those Living Outside The United Kingdom = 33
2.3.6 Representative Bodies = 34
3. The Burden of Convention Rights: Public Authorities = 35
4. Core Public Authorities = 36
4.1 Definition = 36
4.2 Courts and Tribunals = 38
4.3 Parliament = 39
4.4 Which Core Public Authority Is Responsible? = 39
4.5 Application: Core Public Authorities = 40
5. Hybrid Public Authorities = 42
5.1 Definition = 42
5.2 Ensuring Hra Protection When Contracting Out = 44
5.3 Application: Hybrid Public Authorities = 45
5.3.1 Enforcement of Chancel Repairs = 45
5.3.2 Seeking Possession of a Property = 46
5.3.3 Care Home Closures and Management = 46
5.3.4 Denying Application to Participate in a Farmers' Market = 48
5.3.5 Regulation of Membership = 48
5.3.6 Approving Minority Buy-outs = 49
6. Private Bodies = 49
6.1 Interpreting Primary Legislation in Accordance With Section 3 of The Hra = 50
6.2 The Development of The Common Law = 52
3 The 'acts' to Which The Human Rights Act Applies = 55
1. Introduction = 55
2. Retrospective Effect = 56
2.1 Criminal Proceedings = 56
2.2 Civil Proceedings = 60
2.3 The Application of Sections 3 and 4 of The Human Rights Act = 60
2.4 Section 22(4) of The Human Rights Act = 63
2.5 Getting around The Problem of Retrospective Effect = 64
2.5.1 Ongoing Violation of Convention Rights = 65
2.5.2 The 'act' Is Not Yet Complete = 66
2.5.3 Utilising The Pre-hra Position = 66
2.5.4 Modified Common Law = 67
2.6 Judgments of The European Court of Human Rights = 67
3. Acts Which Occur Outside of The United Kingdom: Extra-territorial Effect = 69
3.1 Acts of Non-uk Actors = 69
3.2 Acts of Uk Public Authorities = 71
3.2.1 Jurisdiction As Defined by The European Court of Human Rights = 71
3.2.2 Exceptions to Territorial Jurisdiction = 71
3.2.3 Application: Entry Clearance = 73
3.2.4 Application: Activities of British Embassies = 73
3.2.5 Application: Activities of The British Armed Forces = 74
3.3 The Channel Islands and The Isle of Man = 75
3.4 British Overseas Territories = 75
4. Failure to Act: Positive Duties = 76
5. Satellite Litigation = 77
5.1 Criminal Proceedings = 77
5.2 Civil Proceedings = 78
4 Determining Incompatibility = 79
1. Introduction = 79
2. Prescribed by Law = 80
2.1 Sufficiently Accessible and Precise = 81
2.2 The Common Law = 82
2.3 Codes and Guidelines = 83
3. Necessary = 84
4. Proportionality = 85
4.1 Definition = 85
4.2 The Shift from Wednesbury = 86
4.3 Merits Review? = 87
5. Deference = 88
5.1 Definition = 88
5.2 Reasons to Defer = 89
5.3 Reasons Not to Defer = 90
5.4 When Is Deference Required? = 91
5.5 Problems With Deference = 93
6. Deference in Practice = 98
6.1 Criminal Justice = 98
6.1.1 Prevention of Terrorism = 98
6.1.2 Drug Trafficking = 99
6.1.3 Road Traffic Offences = 99
6.1.4 Prevention and Detection of Serious Crime = 100
6.1.5 Rape Complainant's Prior Sexual History = 100
6.1.6 Sentencing = 101
6.1.7 Policing = 101
6.1.8 Prisons = 101
6.2 National Security = 103
6.3 Immigration and Asylum = 104
6.4 Pensions and Welfare Benefits = 108
6.5 Housing = 109
6.6 Taste and Decency in Broadcasting = 109
6.7 Conclusion = 110
5 The Defence of Primary Legislation = 113
1. Introduction = 113
2. Section 6(2) Human Rights Act = 114
2.1 Introduction = 114
2.2 Section 6(2)(a) Human Rights Act = 115
2.3 Section 6(2)(b) Human Rights Act = 117
3. Section 3 Human Rights Act = 119
3.1 Introduction = 119
3.2 The Nature of Section 3 = 120
3.3 What Is Not Possible = 121
3.4 What Is Possible = 122
3.5 The Application of Section 3 in Hypothetical Cases = 123
3.6 The Application of Section 3 in Practice = 124
3.6.1 Criminal Justice = 125
3.6.2 Sentencing = 126
3.6.3 Parole Board = 126
3.6.4 Coroner's Inquests = 127
3.6.5 Family Law = 127
3.6.6 Housing = 128
3.6.7 Civil Procedure = 129
3.6.8 Other = 129
4. Section 4 Human Rights Act = 131
4.1 Interpretation = 131
4.2 a Reasonable Period Within Which to Amend Domestic Law = 132
4.3 a Declaration Where The Government Already Has Plans to Legislate = 133
4.4 Failure to Legislate = 134
4.5 The Use of Section 4 in Hypothetical Cases = 135
4.6 The Application of Section 4 in Practice = 135
4.6.1 Sentencing = 136
4.6.2 Gender Reassignment = 136
4.6.3 Prevention of Terrorism = 136
4.6.4 Mental Health = 137
4.6.5 Immigration = 137
4.6.6 Housing = 138
5. The Use of Hansard and Other Materials in Compatibility Cases = 138
6. Section 19 Human Rights Act: Statements of Compatibility = 141
6 Remedies = 143
1. Introduction = 143
2. Just and Appropriate = 144
3. Effective = 144
4. The Power to Award Damages = 146
5. Court Must Have The Power to Award Damages = 147
6. Just Satisfaction = 147
6.1 Any Other Relief Or Remedy Granted = 148
6.2 The Consequences of Any Decision = 148
6.3 Other Circumstances = 149
7. The Principles Applied by The European Court of Human Rights = 151
7.1 Introduction = 151
7.2 Pecuniary Damage = 153
7.3 Non-pecuniary Damage = 154
7.4 Exemplary Damages = 156
8. The Level of Damages = 157
9. Application: Article 5 = 159
9.1 Section 9(3) Human Rights Act and Article 5(5) = 159
9.2 Article 5(4): Delay = 160
9.3 Article 5(4): Independence and Impartiality = 162
10. Application: Article 6 = 163
10.1 Article 6(1) Reasonable Time: Post Conviction = 163
10.2 Article 6(1) Reasonable Time: Pre Conviction = 163
10.3 Article 6(1): Independence and Impartiality = 165
11. Application: Article 8 = 168
12. Application: Article 14 = 170
Part Ii: The Convention Rights = 173
7 Article 2: The Right to Life = 175
1. Introduction = 175
2. Scope = 177
3. Definition of 'life' = 178
4. Intentional Deprivation of Life = 181
5. Positive Duty to Safeguard Life = 183
5.1 Nature of The Duty = 183
5.2 Assessing a Risk to Life = 184
5.3 Reasonable Measures = 186
5.4 Application = 186
5.4.1 Protection of Identity = 186
5.4.2 Witness Protection = 188
5.4.3 Care Home Closures = 189
5.4.4 Pvs Patients and Medical Treatment = 189
5.4.5 No Condoms Policy = 190
6. Duty to Investigate = 191
6.1 Nature of The Duty = 191
6.2 When Does The Duty Arise? = 192
6.2.1 Death Or Life-threatening Injuries = 192
6.2.2 Intentional Or Non-intentional Killing by An Agent of The State = 192
6.2.3 Intentional Or Non-intentional Killing by a Non-state Agent = 193
6.2.4 Exculpating Factors = 194
6.3 Form of The Investigation = 195
6.3.1 Authorities Must Act of Their Own Motion = 195
6.3.2 Investigation Must Be Effective = 195
6.3.3 Independence = 195
6.3.4 Public Scrutiny = 196
6.3.5 Involvement of Next of Kin = 196
6.3.6 Outcome of The Investigation = 197
6.4 Application = 198
6.4.1 Deaths in Custody = 198
6.4.2 Deaths in Hospital = 200
7. Exceptions = 201
8 Article 3: Prohibition of Torture and Inhuman Or Degrading Treatment Or Punishment = 203
1. Introduction = 203
2. Severity of Ill-treatment = 205
3. Negative and Positive Duties = 206
3.1 Distinguishing Negative from Positive = 206
3.2 Positive Duty = 209
3.2.1 When Does The Duty Arise? = 209
3.2.2 Knew Or Ought to Have Known = 210
3.2.3 Reasonable Measures = 211
4. Illness and Medical Treatment = 211
4.1 Responsibility of a Public Authority = 212
4.2 The Right to Die and The Right to Die With Dignity = 212
4.3 Medical Treatment = 213
5. Conditions of Detention = 214
6. Violence = 216
7. Sentencing = 217
8. Criminal Law = 219
9. Social Security and Support = 219
10. Deportation and Extradition = 222
10.1 Nature of The Duty = 222
10.2 Application = 224
10.2.1 Illness = 224
10.2.2 Conditions of Detention = 226
10.2.3 Legal Restrictions on Homosexuality = 227
10.2.4 Ill-treatment by Non-state Actors: Sufficiency of State Protection = 227
11. Duty to Investigate = 229
9 Article 5: The Right to Liberty and Security = 231
1. Introduction = 231
2. What Constitutes a Deprivation of Liberty? = 232
2.1 Restrictions on Liberty of Movement = 232
2.2 Parents and Children = 233
2.3 Stop and Search = 234
3. Article 5(1) = 235
3.1 Procedure Prescribed by Law = 235
3.2 Lawful = 235
3.2.1 Lawful Under Domestic Law = 236
3.2.2 Prescribed by Law = 236
3.2.3 Not Arbitrary = 237
3.3 Article 5(1)(a): Conviction by a Competent Court = 237
3.3.1 Causal Link = 237
3.3.2 Disproportionate Period of Detention = 238
3.4 Article 5(1)(b): Non-compliance With The Lawful Order of a Court Or to Secure The Fulfilment of Any Obligation Prescribed by Law = 240
3.5 Article 5(1)(c): Reasonable Suspicion of Having Committed An Offence = 240
3.6 Article 5(1)(d): Minors = 242
3.7 Article 5(1)(e): Persons of Unsound Mind = 242
3.7.1 Minimum Conditions = 242
3.7.2 Public Safety = 244
3.7.3 Treatment = 245
3.8 Article 5(1)(f): Unauthorised Entry, Action Taken With a View to Deportation Or Extradition = 245
3.8.1 Unauthorised Entry: Detention of Asylum Seekers = 245
3.8.2 Deportation: Detention of Deportees = 246
3.8.3 Deportation: Length of Detention = 247
3.8.4 Extradition: Meaning of Lawfulness = 248
4. Article 5(2): Reasons for Arrest = 248
5. Article 5(3) = 249
5.1 The Right to Be Released on Bail = 250
5.2 The Right to Be Tried Within a Reasonable Time = 250
6. Article 5(4) = 251
6.1 Introduction = 251
6.2 Access = 252
6.3 Review of Lawfulness = 252
6.3.1 Introduction = 252
6.3.2 Unsound Mind = 253
6.3.3 Indeterminate Sentences = 253
6.4 Attributes of a Court = 255
6.5 Independence and Impartiality = 256
6.6 Fairness = 258
6.6.1 Introduction = 258
6.6.2 Burden of Proof and Evidence = 258
6.6.3 Oral Hearing = 259
6.6.4 Equality of Arms = 260
6.7 Decided Speedily = 261
6.7.1 Principles = 261
6.7.2 Application: Mental Health = 263
6.7.3 Application: Life Sentence Prisoners = 264
7. Article 5(5): Enforceable Right to Compensation = 265
7.1 Principles = 265
7.2 Relationship With The Hra = 267
10 Article 6: The Right to a Fair Trial = 269
1. Introduction = 269
2. Article 6(1) Application: Determination of Civil Rights and Obligations = 272
2.1 Civil Rights and Obligations = 273
2.2 Determination = 275
2.3 Administrative Decisions: The Two-stage Process = 276
2.4 Examples = 277
3. Article 6(1) Application: Determination of Any Criminal Charge = 278
3.1 Determination = 278
3.1.1 Pre-trial Decisions = 279
3.1.2 Sentencing = 280
3.2 Criminal Charge = 280
3.2.1 Domestic Classification = 280
3.2.2 Nature of The Offence = 282
3.2.3 Severity of The Potential Penalty = 283
3.3 Examples = 284
4. Access to Court = 285
4.1 Substantive and Procedural Bars = 286
4.2 Limitation Periods = 287
4.3 Security for Costs = 288
4.4 Vexatious Litigants = 289
4.5 Immunity from Suit = 289
4.6 Prisoners = 291
4.7 Absence of Legal Representation = 291
4.8 Striking Out = 292
5. Fair Hearing = 293
5.1 Equality of Arms = 294
5.2 Self-incrimination = 297
5.3 Right to Silence = 299
5.4 Presumption of Innocence = 300
5.5 Representation = 301
5.6 Oral Hearing = 301
5.7 Conducting a Proper Examination = 302
5.8 Evidence = 302
5.8.1 Evidence Obtained by Entrapment = 303
5.8.2 Illegally Obtained Evidence = 304
5.8.3 Hearsay Evidence = 304
5.8.4 Dock Identification Evidence = 305
5.8.5 Exclusionary Rules = 305
5.8.6 Trial in Absentia = 307
5.9 Reasons = 308
6. Public Hearing and Public Pronouncement = 309
7. Reasonable Time = 310
7.1 Criminal Proceedings = 311
7.1.1 Start of The Time Period = 311
7.1.2 Determining a Reasonable Time = 312
7.1.3 Application = 313
7.2 Civil Proceedings = 314
7.2.1 Start of The Time Period = 314
7.2.2 Determining a Reasonable Time = 314
7.3 Remedy = 315
7.3.1 Criminal Proceedings: Pre-conviction = 315
7.3.2 Criminal Proceedings: Post Conviction = 317
8. Independent and Impartial Tribunal = 317
8.1 Test for Independence and Impartiality = 318
8.1.1 Subjective Test = 318
8.1.2 Objective Test = 319
8.1.3 Rehearing: Generally = 319
8.1.4 Rehearing: Administrative Decisions = 320
8.2 Separation of Powers = 321
8.3 Waiver = 323
8.4 Application = 323
8.4.1 Judiciary = 324
8.4.2 Juries = 326
8.4.3 Courts Martial = 326
8.4.4 Government Ministers = 327
8.4.5 Local Authorities = 328
8.4.6 Professional Bodies = 328
9. Tribunal Established by Law = 329
10. Article 6(2): Presumption of Innocence = 330
10.1 Burden of Proof = 331
10.2 Application = 332
10.2.1 Confiscation Orders = 333
10.2.2 Drugs Offences = 334
10.2.3 Road Traffic Offences = 335
10.2.4 Trade Marks Offences = 335
10.2.5 Terrorism Offences = 336
11. Article 6(3)(a): Informed of The Nature and Cause of The Accusation = 337
12. Article 6(3)(b): Adequate Time and Facilities for Preparation of Defence = 338
13. Article 6(3)(c): Legal Assistance = 338
13.1 Process of Investigation = 339
13.2 Effective Representation = 339
13.3 Legal Aid = 340
13.4 Application = 340
14. Article 6(3)(d): Witnesses = 341
15. Article 6(3)(e): Interpreter = 342
11 Article 8: The Right to Respect for Private Life = 343
1. Introduction = 343
2. Private Life = 345
2.1 Information = 346
2.2 Identity = 348
2.3 Physical and Psychological Integrity = 349
2.4 Autonomy (self-determination) = 351
2.5 Social Life = 352
2.6 Correspondence = 353
3. Positive Duties = 353
4. Deportation and Extradition: 'foreign' Cases = 355
4.1 Medical Treatment = 355
4.2 Homosexuality = 356
5. Who Has a Private Life? = 356
6. Who Must Respect Private Life? = 357
7. Permitted Interferences = 358
8. National Security = 360
9. Economic Well-being of The Country = 361
9.1 Deportation and Extradition: 'domestic' Cases = 361
9.2 Other = 363
10. Prevention of Disorder Or Crime = 363
10.1 Evidence Obtained by Secret Filming Or Recording = 363
10.2 Fingerprints and Dna Samples = 364
10.3 Stop and Search = 365
10.4 Disclosure of Allegations = 365
10.5 Offender Naming Schemes = 366
10.6 Prisoners = 367
11. Protection of Health = 368
12. Protection of Rights and Freedoms of Others = 368
12.1 Fair Trial = 368
12.2 Right to Life = 369
12.3 Private Life = 369
12.4 Freedom of Expression = 369
12.5 Children = 371
12 Article 8: The Right to Respect for Family Life = 375
1. Introduction = 375
2. Family Life = 375
2.1 Definition = 375
2.2 Parents and Children = 376
2.3 Adoptive Relationships = 377
3. Interference = 378
3.1 Children = 379
3.1.1 Generally = 379
3.1.2 Procedural Rights = 379
3.1.3 Positive Duties = 380
3.2 Social Security and Support = 382
3.3 Deportation and Entry Clearance = 383
4. Permitted Interferences = 384
5. Economic Well-being of The Country = 384
5.1 Deportation = 384
5.2 Dispersal of Asylum Seekers = 387
6. Prevention of Disorder Or Crime = 388
6.1 Prisoners = 388
6.2 Parenting Orders = 389
6.3 Compellable Witnesses = 390
7. Protection of The Rights and Freedoms of Others = 390
7.1 Children: Care Orders = 390
7.2 Children: Contact Orders = 392
7.3 Children: Adoption = 392
7.4 Children: Removing a Child from The Jurisdiction = 393
7.5 Children: Paternity = 394
13 Article 8: The Right to Respect for Home = 397
1. Introduction = 397
2. Home = 398
3. Interference = 399
3.1 Planning = 399
3.2 Proceedings for Possession = 400
3.3 Care Homes = 400
3.4 Environmental Pollution = 401
3.5 Criminal Justice = 402
4. Positive Duties = 402
5. Permitted Interferences = 403
6. for The Prevention of Disorder Or Crime = 403
7. Economic Well-being of The Country = 404
7.1 Care Home Closures = 404
7.2 Standards of Public Housing = 405
7.3 Management of Sewage and Drainage = 406
8. Protection of The Rights and Freedoms of Others = 407
8.1 Generally = 407
8.2 Public Interest in Preserving The Environment = 408
8.3 Proceedings for Possession = 409
14 Article 10: The Right to Freedom of Expression = 415
1. Introduction = 415
2. Expression = 417
3. Medium, Manner and Timing of Communication = 418
4. Freedom to Receive and Impart Information and Ideas = 419
5. Interference = 420
6. Positive Duties = 422
7. Permitted Interferences = 423
8. General Principles = 424
8.1 Section 12 Hra = 424
8.2 Importance of Freedom of Expression = 425
8.3 Importance of Freedom of The Press = 426
8.4 The Public Interest = 427
8.4.1 Defining The Public Interest = 427
8.4.2 Public Figures = 429
8.4.3 Commercial Expression = 430
9. National Security = 430
10. Prevention of Disorder Or Crime = 431
11. Protection of Health Or Morals = 432
12. Protection of The Reputation of Others = 433
13. Protection of The Rights of Others = 436
13.1 Articles 2 and 3 = 436
13.2 Article 8 = 437
13.3 Article 1 Protocol No 1 = 439
13.4 Right Not to Be Insulted and Distressed = 440
14. Preventing The Disclosure of Information Received in Confidence = 442
14.1 Generally = 442
14.2 Disclosure of a Journalist's Source = 444
15. Maintaining The Authority and Impartiality of The Judiciary = 446
15 Article 14: Prohibition of Discrimination = 449
1. Introduction = 449
2. Application: No Independent Existence = 451
3. without Discrimination = 454
3.1 Difference in Treatment: Direct Discrimination = 455
3.2 No Difference in Treatment: Indirect Discrimination = 455
4. Positive Duty = 455
5. Grounds = 456
6. Analogous Position = 458
7. Objective and Reasonable Justification = 461
7.1 Social and Economic Factors = 461
7.2 Protection of The Traditional Family Unit = 463
7.3 Detection and Prevention of Serious Crime = 464
7.4 Protection Against Terrorist Acts = 464
8. Remedy for Breach = 465
8.1 Just Satisfaction = 465
8.2 Reasonable Time for Change = 466
16 Article 1 Protocol No 1: Protection of Property = 467
1. Introduction = 467
2. Possessions = 468
2.1 Generally = 468
2.2 Personal Possessions = 469
2.3 Business Possessions = 469
3. Interferences With The Peaceful Enjoyment of Possessions = 470
3.1 Deprivation = 471
3.2 Control = 473
4. Justifying Interferences = 474
4.1 Generally = 474
4.2 Compensation = 475
4.3 Procedural Rights = 477
5. Consumer Protection = 477
6. Planning and The Environment = 478
7. The Rights of Others = 479
7.1 Freedom of Expression = 479
7.2 Peaceful Enjoyment of Possessions = 480
7.3 Other = 482
8. Prevention of Crime = 482
9. Economic Well-being of The Country = 483
9.1 Taxes and Duties = 483
9.2 Clandestine Entrants = 485
9.3 Child Support = 486
Index = 487
1 Background and Interpretation = 3
1. The Protection of Human Rights Prior to The Human Rights Act = 3
2. Background to The Human Rights Act = 4
2.1 The Incorporation Debate = 4
2.2 The Human Rights Bill = 6
3. Purpose of The Human Rights Act = 8
4. Structure of The Human Rights Act = 9
5. Convention Rights Given Further Effect = 10
5.1 The Nature and Scope of The Convention Rights = 10
5.2 The Convention As a 'living Instrument' = 12
5.3 The Non-absolute Nature of The Majority of The Convention Rights = 13
5.4 Derogations and Reservations = 14
6. Principles of Interpretation = 15
7. The Relationship With Strasbourg Jurisprudence = 17
7.1 Section 2 of The Human Rights Act = 17
7.2 The Obligation to Take Into Account and Follow? = 18
7.3 a More Generous Interpretation of Convention Rights = 21
7.4 a Conflict between Domestic Authority and Subsequent Strasbourg Authority = 23
8. Other Aids to Interpretation = 23
8.1 Judgments of The Privy Council in Devolution Cases = 23
8.2 Case Law and Instruments from Other Jurisdictions = 25
8.3 Reports of The Joint Committee on Human Rights = 26
2 The Benefit and Burden of The Human Rights Act = 27
1. Introduction = 27
2. The Benefit of Convention Rights: Victims = 28
2.1 Section 7 Human Rights Act = 28
2.2 The Victim Test and Sections 3 and 4 of The Human Rights Act = 29
2.3 Categories of Victim = 31
2.3.1 Core Public Authorities = 31
2.3.2 Potential Victims = 31
2.3.3 Relatives of a Victim = 32
2.3.4 Those Who Have Brought Proceedings before The European Court of Human Rights = 33
2.3.5 Non-nationals and Those Living Outside The United Kingdom = 33
2.3.6 Representative Bodies = 34
3. The Burden of Convention Rights: Public Authorities = 35
4. Core Public Authorities = 36
4.1 Definition = 36
4.2 Courts and Tribunals = 38
4.3 Parliament = 39
4.4 Which Core Public Authority Is Responsible? = 39
4.5 Application: Core Public Authorities = 40
5. Hybrid Public Authorities = 42
5.1 Definition = 42
5.2 Ensuring Hra Protection When Contracting Out = 44
5.3 Application: Hybrid Public Authorities = 45
5.3.1 Enforcement of Chancel Repairs = 45
5.3.2 Seeking Possession of a Property = 46
5.3.3 Care Home Closures and Management = 46
5.3.4 Denying Application to Participate in a Farmers' Market = 48
5.3.5 Regulation of Membership = 48
5.3.6 Approving Minority Buy-outs = 49
6. Private Bodies = 49
6.1 Interpreting Primary Legislation in Accordance With Section 3 of The Hra = 50
6.2 The Development of The Common Law = 52
3 The 'acts' to Which The Human Rights Act Applies = 55
1. Introduction = 55
2. Retrospective Effect = 56
2.1 Criminal Proceedings = 56
2.2 Civil Proceedings = 60
2.3 The Application of Sections 3 and 4 of The Human Rights Act = 60
2.4 Section 22(4) of The Human Rights Act = 63
2.5 Getting around The Problem of Retrospective Effect = 64
2.5.1 Ongoing Violation of Convention Rights = 65
2.5.2 The 'act' Is Not Yet Complete = 66
2.5.3 Utilising The Pre-hra Position = 66
2.5.4 Modified Common Law = 67
2.6 Judgments of The European Court of Human Rights = 67
3. Acts Which Occur Outside of The United Kingdom: Extra-territorial Effect = 69
3.1 Acts of Non-uk Actors = 69
3.2 Acts of Uk Public Authorities = 71
3.2.1 Jurisdiction As Defined by The European Court of Human Rights = 71
3.2.2 Exceptions to Territorial Jurisdiction = 71
3.2.3 Application: Entry Clearance = 73
3.2.4 Application: Activities of British Embassies = 73
3.2.5 Application: Activities of The British Armed Forces = 74
3.3 The Channel Islands and The Isle of Man = 75
3.4 British Overseas Territories = 75
4. Failure to Act: Positive Duties = 76
5. Satellite Litigation = 77
5.1 Criminal Proceedings = 77
5.2 Civil Proceedings = 78
4 Determining Incompatibility = 79
1. Introduction = 79
2. Prescribed by Law = 80
2.1 Sufficiently Accessible and Precise = 81
2.2 The Common Law = 82
2.3 Codes and Guidelines = 83
3. Necessary = 84
4. Proportionality = 85
4.1 Definition = 85
4.2 The Shift from Wednesbury = 86
4.3 Merits Review? = 87
5. Deference = 88
5.1 Definition = 88
5.2 Reasons to Defer = 89
5.3 Reasons Not to Defer = 90
5.4 When Is Deference Required? = 91
5.5 Problems With Deference = 93
6. Deference in Practice = 98
6.1 Criminal Justice = 98
6.1.1 Prevention of Terrorism = 98
6.1.2 Drug Trafficking = 99
6.1.3 Road Traffic Offences = 99
6.1.4 Prevention and Detection of Serious Crime = 100
6.1.5 Rape Complainant's Prior Sexual History = 100
6.1.6 Sentencing = 101
6.1.7 Policing = 101
6.1.8 Prisons = 101
6.2 National Security = 103
6.3 Immigration and Asylum = 104
6.4 Pensions and Welfare Benefits = 108
6.5 Housing = 109
6.6 Taste and Decency in Broadcasting = 109
6.7 Conclusion = 110
5 The Defence of Primary Legislation = 113
1. Introduction = 113
2. Section 6(2) Human Rights Act = 114
2.1 Introduction = 114
2.2 Section 6(2)(a) Human Rights Act = 115
2.3 Section 6(2)(b) Human Rights Act = 117
3. Section 3 Human Rights Act = 119
3.1 Introduction = 119
3.2 The Nature of Section 3 = 120
3.3 What Is Not Possible = 121
3.4 What Is Possible = 122
3.5 The Application of Section 3 in Hypothetical Cases = 123
3.6 The Application of Section 3 in Practice = 124
3.6.1 Criminal Justice = 125
3.6.2 Sentencing = 126
3.6.3 Parole Board = 126
3.6.4 Coroner's Inquests = 127
3.6.5 Family Law = 127
3.6.6 Housing = 128
3.6.7 Civil Procedure = 129
3.6.8 Other = 129
4. Section 4 Human Rights Act = 131
4.1 Interpretation = 131
4.2 a Reasonable Period Within Which to Amend Domestic Law = 132
4.3 a Declaration Where The Government Already Has Plans to Legislate = 133
4.4 Failure to Legislate = 134
4.5 The Use of Section 4 in Hypothetical Cases = 135
4.6 The Application of Section 4 in Practice = 135
4.6.1 Sentencing = 136
4.6.2 Gender Reassignment = 136
4.6.3 Prevention of Terrorism = 136
4.6.4 Mental Health = 137
4.6.5 Immigration = 137
4.6.6 Housing = 138
5. The Use of Hansard and Other Materials in Compatibility Cases = 138
6. Section 19 Human Rights Act: Statements of Compatibility = 141
6 Remedies = 143
1. Introduction = 143
2. Just and Appropriate = 144
3. Effective = 144
4. The Power to Award Damages = 146
5. Court Must Have The Power to Award Damages = 147
6. Just Satisfaction = 147
6.1 Any Other Relief Or Remedy Granted = 148
6.2 The Consequences of Any Decision = 148
6.3 Other Circumstances = 149
7. The Principles Applied by The European Court of Human Rights = 151
7.1 Introduction = 151
7.2 Pecuniary Damage = 153
7.3 Non-pecuniary Damage = 154
7.4 Exemplary Damages = 156
8. The Level of Damages = 157
9. Application: Article 5 = 159
9.1 Section 9(3) Human Rights Act and Article 5(5) = 159
9.2 Article 5(4): Delay = 160
9.3 Article 5(4): Independence and Impartiality = 162
10. Application: Article 6 = 163
10.1 Article 6(1) Reasonable Time: Post Conviction = 163
10.2 Article 6(1) Reasonable Time: Pre Conviction = 163
10.3 Article 6(1): Independence and Impartiality = 165
11. Application: Article 8 = 168
12. Application: Article 14 = 170
Part Ii: The Convention Rights = 173
7 Article 2: The Right to Life = 175
1. Introduction = 175
2. Scope = 177
3. Definition of 'life' = 178
4. Intentional Deprivation of Life = 181
5. Positive Duty to Safeguard Life = 183
5.1 Nature of The Duty = 183
5.2 Assessing a Risk to Life = 184
5.3 Reasonable Measures = 186
5.4 Application = 186
5.4.1 Protection of Identity = 186
5.4.2 Witness Protection = 188
5.4.3 Care Home Closures = 189
5.4.4 Pvs Patients and Medical Treatment = 189
5.4.5 No Condoms Policy = 190
6. Duty to Investigate = 191
6.1 Nature of The Duty = 191
6.2 When Does The Duty Arise? = 192
6.2.1 Death Or Life-threatening Injuries = 192
6.2.2 Intentional Or Non-intentional Killing by An Agent of The State = 192
6.2.3 Intentional Or Non-intentional Killing by a Non-state Agent = 193
6.2.4 Exculpating Factors = 194
6.3 Form of The Investigation = 195
6.3.1 Authorities Must Act of Their Own Motion = 195
6.3.2 Investigation Must Be Effective = 195
6.3.3 Independence = 195
6.3.4 Public Scrutiny = 196
6.3.5 Involvement of Next of Kin = 196
6.3.6 Outcome of The Investigation = 197
6.4 Application = 198
6.4.1 Deaths in Custody = 198
6.4.2 Deaths in Hospital = 200
7. Exceptions = 201
8 Article 3: Prohibition of Torture and Inhuman Or Degrading Treatment Or Punishment = 203
1. Introduction = 203
2. Severity of Ill-treatment = 205
3. Negative and Positive Duties = 206
3.1 Distinguishing Negative from Positive = 206
3.2 Positive Duty = 209
3.2.1 When Does The Duty Arise? = 209
3.2.2 Knew Or Ought to Have Known = 210
3.2.3 Reasonable Measures = 211
4. Illness and Medical Treatment = 211
4.1 Responsibility of a Public Authority = 212
4.2 The Right to Die and The Right to Die With Dignity = 212
4.3 Medical Treatment = 213
5. Conditions of Detention = 214
6. Violence = 216
7. Sentencing = 217
8. Criminal Law = 219
9. Social Security and Support = 219
10. Deportation and Extradition = 222
10.1 Nature of The Duty = 222
10.2 Application = 224
10.2.1 Illness = 224
10.2.2 Conditions of Detention = 226
10.2.3 Legal Restrictions on Homosexuality = 227
10.2.4 Ill-treatment by Non-state Actors: Sufficiency of State Protection = 227
11. Duty to Investigate = 229
9 Article 5: The Right to Liberty and Security = 231
1. Introduction = 231
2. What Constitutes a Deprivation of Liberty? = 232
2.1 Restrictions on Liberty of Movement = 232
2.2 Parents and Children = 233
2.3 Stop and Search = 234
3. Article 5(1) = 235
3.1 Procedure Prescribed by Law = 235
3.2 Lawful = 235
3.2.1 Lawful Under Domestic Law = 236
3.2.2 Prescribed by Law = 236
3.2.3 Not Arbitrary = 237
3.3 Article 5(1)(a): Conviction by a Competent Court = 237
3.3.1 Causal Link = 237
3.3.2 Disproportionate Period of Detention = 238
3.4 Article 5(1)(b): Non-compliance With The Lawful Order of a Court Or to Secure The Fulfilment of Any Obligation Prescribed by Law = 240
3.5 Article 5(1)(c): Reasonable Suspicion of Having Committed An Offence = 240
3.6 Article 5(1)(d): Minors = 242
3.7 Article 5(1)(e): Persons of Unsound Mind = 242
3.7.1 Minimum Conditions = 242
3.7.2 Public Safety = 244
3.7.3 Treatment = 245
3.8 Article 5(1)(f): Unauthorised Entry, Action Taken With a View to Deportation Or Extradition = 245
3.8.1 Unauthorised Entry: Detention of Asylum Seekers = 245
3.8.2 Deportation: Detention of Deportees = 246
3.8.3 Deportation: Length of Detention = 247
3.8.4 Extradition: Meaning of Lawfulness = 248
4. Article 5(2): Reasons for Arrest = 248
5. Article 5(3) = 249
5.1 The Right to Be Released on Bail = 250
5.2 The Right to Be Tried Within a Reasonable Time = 250
6. Article 5(4) = 251
6.1 Introduction = 251
6.2 Access = 252
6.3 Review of Lawfulness = 252
6.3.1 Introduction = 252
6.3.2 Unsound Mind = 253
6.3.3 Indeterminate Sentences = 253
6.4 Attributes of a Court = 255
6.5 Independence and Impartiality = 256
6.6 Fairness = 258
6.6.1 Introduction = 258
6.6.2 Burden of Proof and Evidence = 258
6.6.3 Oral Hearing = 259
6.6.4 Equality of Arms = 260
6.7 Decided Speedily = 261
6.7.1 Principles = 261
6.7.2 Application: Mental Health = 263
6.7.3 Application: Life Sentence Prisoners = 264
7. Article 5(5): Enforceable Right to Compensation = 265
7.1 Principles = 265
7.2 Relationship With The Hra = 267
10 Article 6: The Right to a Fair Trial = 269
1. Introduction = 269
2. Article 6(1) Application: Determination of Civil Rights and Obligations = 272
2.1 Civil Rights and Obligations = 273
2.2 Determination = 275
2.3 Administrative Decisions: The Two-stage Process = 276
2.4 Examples = 277
3. Article 6(1) Application: Determination of Any Criminal Charge = 278
3.1 Determination = 278
3.1.1 Pre-trial Decisions = 279
3.1.2 Sentencing = 280
3.2 Criminal Charge = 280
3.2.1 Domestic Classification = 280
3.2.2 Nature of The Offence = 282
3.2.3 Severity of The Potential Penalty = 283
3.3 Examples = 284
4. Access to Court = 285
4.1 Substantive and Procedural Bars = 286
4.2 Limitation Periods = 287
4.3 Security for Costs = 288
4.4 Vexatious Litigants = 289
4.5 Immunity from Suit = 289
4.6 Prisoners = 291
4.7 Absence of Legal Representation = 291
4.8 Striking Out = 292
5. Fair Hearing = 293
5.1 Equality of Arms = 294
5.2 Self-incrimination = 297
5.3 Right to Silence = 299
5.4 Presumption of Innocence = 300
5.5 Representation = 301
5.6 Oral Hearing = 301
5.7 Conducting a Proper Examination = 302
5.8 Evidence = 302
5.8.1 Evidence Obtained by Entrapment = 303
5.8.2 Illegally Obtained Evidence = 304
5.8.3 Hearsay Evidence = 304
5.8.4 Dock Identification Evidence = 305
5.8.5 Exclusionary Rules = 305
5.8.6 Trial in Absentia = 307
5.9 Reasons = 308
6. Public Hearing and Public Pronouncement = 309
7. Reasonable Time = 310
7.1 Criminal Proceedings = 311
7.1.1 Start of The Time Period = 311
7.1.2 Determining a Reasonable Time = 312
7.1.3 Application = 313
7.2 Civil Proceedings = 314
7.2.1 Start of The Time Period = 314
7.2.2 Determining a Reasonable Time = 314
7.3 Remedy = 315
7.3.1 Criminal Proceedings: Pre-conviction = 315
7.3.2 Criminal Proceedings: Post Conviction = 317
8. Independent and Impartial Tribunal = 317
8.1 Test for Independence and Impartiality = 318
8.1.1 Subjective Test = 318
8.1.2 Objective Test = 319
8.1.3 Rehearing: Generally = 319
8.1.4 Rehearing: Administrative Decisions = 320
8.2 Separation of Powers = 321
8.3 Waiver = 323
8.4 Application = 323
8.4.1 Judiciary = 324
8.4.2 Juries = 326
8.4.3 Courts Martial = 326
8.4.4 Government Ministers = 327
8.4.5 Local Authorities = 328
8.4.6 Professional Bodies = 328
9. Tribunal Established by Law = 329
10. Article 6(2): Presumption of Innocence = 330
10.1 Burden of Proof = 331
10.2 Application = 332
10.2.1 Confiscation Orders = 333
10.2.2 Drugs Offences = 334
10.2.3 Road Traffic Offences = 335
10.2.4 Trade Marks Offences = 335
10.2.5 Terrorism Offences = 336
11. Article 6(3)(a): Informed of The Nature and Cause of The Accusation = 337
12. Article 6(3)(b): Adequate Time and Facilities for Preparation of Defence = 338
13. Article 6(3)(c): Legal Assistance = 338
13.1 Process of Investigation = 339
13.2 Effective Representation = 339
13.3 Legal Aid = 340
13.4 Application = 340
14. Article 6(3)(d): Witnesses = 341
15. Article 6(3)(e): Interpreter = 342
11 Article 8: The Right to Respect for Private Life = 343
1. Introduction = 343
2. Private Life = 345
2.1 Information = 346
2.2 Identity = 348
2.3 Physical and Psychological Integrity = 349
2.4 Autonomy (self-determination) = 351
2.5 Social Life = 352
2.6 Correspondence = 353
3. Positive Duties = 353
4. Deportation and Extradition: 'foreign' Cases = 355
4.1 Medical Treatment = 355
4.2 Homosexuality = 356
5. Who Has a Private Life? = 356
6. Who Must Respect Private Life? = 357
7. Permitted Interferences = 358
8. National Security = 360
9. Economic Well-being of The Country = 361
9.1 Deportation and Extradition: 'domestic' Cases = 361
9.2 Other = 363
10. Prevention of Disorder Or Crime = 363
10.1 Evidence Obtained by Secret Filming Or Recording = 363
10.2 Fingerprints and Dna Samples = 364
10.3 Stop and Search = 365
10.4 Disclosure of Allegations = 365
10.5 Offender Naming Schemes = 366
10.6 Prisoners = 367
11. Protection of Health = 368
12. Protection of Rights and Freedoms of Others = 368
12.1 Fair Trial = 368
12.2 Right to Life = 369
12.3 Private Life = 369
12.4 Freedom of Expression = 369
12.5 Children = 371
12 Article 8: The Right to Respect for Family Life = 375
1. Introduction = 375
2. Family Life = 375
2.1 Definition = 375
2.2 Parents and Children = 376
2.3 Adoptive Relationships = 377
3. Interference = 378
3.1 Children = 379
3.1.1 Generally = 379
3.1.2 Procedural Rights = 379
3.1.3 Positive Duties = 380
3.2 Social Security and Support = 382
3.3 Deportation and Entry Clearance = 383
4. Permitted Interferences = 384
5. Economic Well-being of The Country = 384
5.1 Deportation = 384
5.2 Dispersal of Asylum Seekers = 387
6. Prevention of Disorder Or Crime = 388
6.1 Prisoners = 388
6.2 Parenting Orders = 389
6.3 Compellable Witnesses = 390
7. Protection of The Rights and Freedoms of Others = 390
7.1 Children: Care Orders = 390
7.2 Children: Contact Orders = 392
7.3 Children: Adoption = 392
7.4 Children: Removing a Child from The Jurisdiction = 393
7.5 Children: Paternity = 394
13 Article 8: The Right to Respect for Home = 397
1. Introduction = 397
2. Home = 398
3. Interference = 399
3.1 Planning = 399
3.2 Proceedings for Possession = 400
3.3 Care Homes = 400
3.4 Environmental Pollution = 401
3.5 Criminal Justice = 402
4. Positive Duties = 402
5. Permitted Interferences = 403
6. for The Prevention of Disorder Or Crime = 403
7. Economic Well-being of The Country = 404
7.1 Care Home Closures = 404
7.2 Standards of Public Housing = 405
7.3 Management of Sewage and Drainage = 406
8. Protection of The Rights and Freedoms of Others = 407
8.1 Generally = 407
8.2 Public Interest in Preserving The Environment = 408
8.3 Proceedings for Possession = 409
14 Article 10: The Right to Freedom of Expression = 415
1. Introduction = 415
2. Expression = 417
3. Medium, Manner and Timing of Communication = 418
4. Freedom to Receive and Impart Information and Ideas = 419
5. Interference = 420
6. Positive Duties = 422
7. Permitted Interferences = 423
8. General Principles = 424
8.1 Section 12 Hra = 424
8.2 Importance of Freedom of Expression = 425
8.3 Importance of Freedom of The Press = 426
8.4 The Public Interest = 427
8.4.1 Defining The Public Interest = 427
8.4.2 Public Figures = 429
8.4.3 Commercial Expression = 430
9. National Security = 430
10. Prevention of Disorder Or Crime = 431
11. Protection of Health Or Morals = 432
12. Protection of The Reputation of Others = 433
13. Protection of The Rights of Others = 436
13.1 Articles 2 and 3 = 436
13.2 Article 8 = 437
13.3 Article 1 Protocol No 1 = 439
13.4 Right Not to Be Insulted and Distressed = 440
14. Preventing The Disclosure of Information Received in Confidence = 442
14.1 Generally = 442
14.2 Disclosure of a Journalist's Source = 444
15. Maintaining The Authority and Impartiality of The Judiciary = 446
15 Article 14: Prohibition of Discrimination = 449
1. Introduction = 449
2. Application: No Independent Existence = 451
3. without Discrimination = 454
3.1 Difference in Treatment: Direct Discrimination = 455
3.2 No Difference in Treatment: Indirect Discrimination = 455
4. Positive Duty = 455
5. Grounds = 456
6. Analogous Position = 458
7. Objective and Reasonable Justification = 461
7.1 Social and Economic Factors = 461
7.2 Protection of The Traditional Family Unit = 463
7.3 Detection and Prevention of Serious Crime = 464
7.4 Protection Against Terrorist Acts = 464
8. Remedy for Breach = 465
8.1 Just Satisfaction = 465
8.2 Reasonable Time for Change = 466
16 Article 1 Protocol No 1: Protection of Property = 467
1. Introduction = 467
2. Possessions = 468
2.1 Generally = 468
2.2 Personal Possessions = 469
2.3 Business Possessions = 469
3. Interferences With The Peaceful Enjoyment of Possessions = 470
3.1 Deprivation = 471
3.2 Control = 473
4. Justifying Interferences = 474
4.1 Generally = 474
4.2 Compensation = 475
4.3 Procedural Rights = 477
5. Consumer Protection = 477
6. Planning and The Environment = 478
7. The Rights of Others = 479
7.1 Freedom of Expression = 479
7.2 Peaceful Enjoyment of Possessions = 480
7.3 Other = 482
8. Prevention of Crime = 482
9. Economic Well-being of The Country = 483
9.1 Taxes and Duties = 483
9.2 Clandestine Entrants = 485
9.3 Child Support = 486
Index = 487