Emergencies and Equivocality Under the Inherent Jurisdiction: A Local Authority v BF [2018] EWCA CIV 2962 and Southend-On-Sea Borough Council v Meyers [2019] EWHC 399 (FAM)

2019 ◽  
Vol 27 (4) ◽  
pp. 675-686
Author(s):  
Amber Pugh
Keyword(s):  
Human Rights ◽  
Local Authority ◽  
European Convention ◽  
European Court ◽  
Borough Council ◽  
Level I ◽  
Article 5 ◽  
Vulnerable Adults ◽  
Court Of Appeal

Abstract In A Local Authority v BF [2018] EWCA Civ 2962, the Court of Appeal refused to grant permission to appeal against an interim judgment that deprived a capacitous man, Mr Meyers, of his liberty. The deprivation of liberty was held to be justified on the basis that there was evidence suggesting that he was of unsound mind under Article 5(1)(e) of the European Convention on Human Rights and, in any event, it was an emergency which temporarily obviated the need to establish that he was of unsound mind. In this commentary, I argue that the decision was flawed in two respects. First, the need to establish ‘unsound mind’ could not be dispensed with because it was not an emergency and, secondly, the Court’s interpretation of ‘unsound mind’ was overly broad and cannot be reconciled with the jurisprudence of the European Court of Human Rights. Subsequently, in Southend-On-Sea Borough Council v Meyers [2019] EWHC 399 (Fam), which was the substantive hearing of Mr Meyers’ case, Hayden J made an order preventing Mr Meyers from living with his son, with the decision being framed as a restriction on movement rather than a deprivation of liberty. I contend that the restrictions placed on Mr Meyers may amount to a deprivation of liberty. On a broader level, I argue that the use of the inherent jurisdiction to deprive vulnerable adults of their liberty is incompatible with Article 5, and that these cases demonstrate the potential for draconian decisions to be made when using a jurisdiction with shifting parameters to protect adults who are deemed to be ‘vulnerable’, a concept that is equivocal in nature.

scholarly journals The United Kingdom’s Coronavirus Act, deprivations of liberty, and the right to liberty and security of the person

2020 ◽  
Vol 7 (1) ◽  
Author(s):  
Jonathan Pugh
Keyword(s):  
Public Health ◽  
Human Rights ◽  
European Convention ◽  
Human Rights Law ◽  
Legal Certainty ◽  
The Public ◽  
European Court ◽  
The Uk ◽  
The Right ◽  
Article 5

Abstract In response to the SARS-CoV-2 coronavirus pandemic the UK government has passed the Coronavirus Act 2020 (CA). Among other things, this act extends existing statutory powers to impose restrictions of liberty for public health purposes. The extension of such powers naturally raises concerns about whether their use will be compatible with human rights law. In particular, it is unclear whether their use will fall within the public heath exception to the Article 5 right to liberty and security of the person in the European Convention of Human Rights. In this paper, I outline key features of the CA, and briefly consider how the European Court of Human Rights has interpreted the public health exception to Article 5 rights. This analysis suggests two grounds on which restrictions of liberty enforced some under the CA might be vulnerable to claims of Article 5 rights violations. First, the absence of specified time limits on certain restrictions of liberty means that they may fail the requirement of legal certainty championed by the European Court in its interpretation of the public health exception. Second, the Coronavirus Act’s extension of powers to individuals lacking public health expertise may undermine the extent to which the act will ensure that deprivations of liberty are necessary and proportionate.

scholarly journals MIGRANTS IN DETENTION: APPROACH OF THE EUROPEAN COURT OF HUMAN RIGHTS

TEME ◽  
2020 ◽  
pp. 957
Author(s):  
Veljko Turanjanin ◽  
Snežana Soković
Keyword(s):  
Human Rights ◽  
Main Part ◽  
European Convention ◽  
European Court ◽  
Fundamental Freedoms ◽  
The Mediterranean ◽  
Migration Crisis ◽  
The One ◽  
Article 5

The Mediterranean migrant crisis is not calming down and in the last six decades the nature and character of these migrations has changed. The authors deal with the one of the aspects of their position – detention. This work is divided into several parts. In the first part, the authors explore the problem of the migration crisis. After that, they explain in detail an Article 5 of the European Convention on Human Rights and Fundamental Freedoms. The main part of this work is devoted to the jurisprudence of the European Court of Human Rights related to the migrant’s detention.

THE LEGALITY OF THE MANDATORY LIFE SENTENCE

2002 ◽  
Vol 61 (1) ◽  
pp. 1-52
Author(s):  
Nicola Padfield
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
European Convention ◽  
Life Sentence ◽  
Degrading Treatment ◽  
Article 5 ◽  
Court Of Appeal ◽  
Mandatory Sentence

CHALLENGES to the mandatory life sentence by way of judicial review continue to hit the courts. Among the most dramatic are R. v. Lichniak and R. v. Pyrah [2001] EWHC Admin 294, [2001] 3 W.L.R. 933, where it was argued that the mandatory sentence violated Article 3 of the European Convention on Human Rights (prohibition of torture or degrading treatment or punishment) because it was disproportionate, and that it violated Article 5 of the Convention (right to liberty and security) because it was arbitrary. When Scott Baker J. granted leave to apply for judicial review he ordered that the court should sit both as a Divisional Court and as the Court of Appeal (Criminal Division). Kennedy L.J., giving the judgment of the Court of Appeal, held that “the most attractive route” was for the Court to sit as a division of the Court of Appeal.

Huseini v. Ministry of Justice and Public Security

2019 ◽  
Vol 181 ◽  
pp. 419-435
Keyword(s):  
Human Rights ◽  
Migrant Children ◽  
Best Interests ◽  
European Convention ◽  
Detention Centre ◽  
Rights Of The Child ◽  
Societal Needs ◽  
European Court ◽  
Degrading Treatment ◽  
Article 5

Aliens — Asylum seekers — Detention of migrant children — Family detained in detention centre — Conditions in detention centre — European Convention on Human Rights, 1950, Articles 3, 5 and 8 — Jurisprudence of European Court of Human Rights — Convention on the Rights of the Child, 1989, Articles 3 and 37 — Whether detention of migrant children and their parents illegal — Whether Norway violating international obligations and Constitution of Norway — Whether damages appropriateHuman rights — Prohibition of torture and inhuman or degrading treatment or punishment — Whether detention of children and their parents illegal — Jurisprudence of European Court of Human Rights — Age of children — Length and conditions of detention — Whether violation of Article 3 of European Convention on Human Rights, 1950Human rights — Right to freedom and security — Whether detention of children and their parents illegal — Jurisprudence of European Court of Human Rights — Whether detention of family measure of last resort with no possible alternative — Whether violation of Article 5(1) of European Convention on Human Rights, 1950Human rights — Right to respect for private and family life — Whether detention of children and their parents illegal — Jurisprudence of European Court of Human Rights — Whether detention justified — Whether compelling societal needs — Whether proportionate — Whether violation of Article 8 of European Convention on Human Rights, 1950Human rights — Rights of the child — Whether detention of children illegal — Convention on the Rights of the Child, 1989, Articles 3 and 37 — Interpretation of Article 3 — Best interests of the child — Prohibition of torture and inhuman or degrading treatment or punishment — Whether measure strictly necessary — Whether violation of Articles 3 and 37 of Convention on the Rights of the Child, 1989Relationship of international law and municipal law — Treaties — European Convention on Human Rights, 1950, Articles 3, 5 and 8 — Convention on the Rights of the Child, 1989, Articles 3 and 37 — Constitution of Norway — Jurisprudence of European Court of Human Rights — 2015 report by UN Special Rapporteur on Torture — Whether detention of migrant children and their parents illegal — Whether damages appropriate — The law of Norway

coercive questioning (that is, where a suspect's silence can be used in evidence against him or her) can be used in matters under s (as amended) of the Official Secrets Act 1911. There are also wide powers under the Companies Act 1985 to require officers and agents of companies to assist inspectors appointed to investigate the company. Refusal to answer questions can be sanctioned as a contempt of court 431) and as a criminal offence 447). A person can also be required to answer questions to him or her by a acceptances of them under the Drug Trafficking Offences Act 1986. The closest English law comes to creating a duty to give one's name and address is the power given to the police under s 25(3) of PACE 1984 (above). Effective abolition of the right silence The Government ignored the recommendations of the Runciman Commission and, in ss 34-37 of the CJPO 1994, effectively abolished the right to silence. 'Abolished' may be too strong a word because everyone still has the right to remain silent in the same circumstances as they did before the 1994 Act; what has changed is the entitlement of a judge or prosecuting counsel to make adverse comment on such a silence. The issue has now been addressed by the European Court of Human Rights (ECtHR). The leading case is Condron v UK [2000] Crim 679. In 2000, two convicted drug dealers won a landmark ruling in Europe that the UK Government's curbs on the right to silence denied them a fair trial. The ECtHR in Strasbourg stated that, where juries are allowed to draw adverse inferences from silence under police questioning, they must be properly directed by the judge. In a key finding, it ruled that the Court of Appeal should look not just at whether a conviction was 'safe', but also at whether a defendant received a fair trial. The ruling will be likely to lead to other appeals. The case, backed by Liberty, the human rights group, was brought by William and Karen Condron, who were convicted of supplying drugs in 1995. The pair, who did not answer police questions, were jailed for four years. The ECtHR said that the jury had not been properly directed. As a result, the couple's right to a fair trial, as guaranteed by Art 6 of the European Convention on Human Rights, was breached. It awarded each defendant £15,000. Silence could not be regarded as 'an absolute right', the court said, and drawing inferences was not itself in breach of the right to a fair trial, but caution was needed. The jury should have been directed that, ' .. .if it was satisfied that the applicants' silence...could not sensibly be attributed to their having no answer, or none that would stand up to cross-examination, it should not draw an adverse inference'. The law report from Times appears below.

2012 ◽  
pp. 415-419
Keyword(s):  
Human Rights ◽  
Drug Trafficking ◽  
Fair Trial ◽  
European Convention ◽  
European Court ◽  
Right To Silence ◽  
The Government ◽  
The Uk ◽  
The Right ◽  
Court Of Appeal

Re H (A Child) (Parental Responsibility: Vaccination): The Merits of Adopting A Softer Approach To Vaccination of A Child in Care?

2020 ◽  
Vol 28 (4) ◽  
pp. 817-826
Author(s):  
Clayton Ó Néill
Keyword(s):  
Human Rights ◽  
Medical Treatment ◽  
Family Life ◽  
Local Authority ◽  
Best Interests ◽  
European Convention ◽  
Parental Responsibility ◽  
Medical Evidence ◽  
Children In Care ◽  
Court Of Appeal

Abstract In Re H (A Child) (Parental Responsibility: Vaccination), the Court of Appeal decided that vaccination did not represent ‘grave’ or ‘serious’ medical treatment and determined that, in the case of a child under the care of a Local Authority, court authorization for consent to and arrangement of vaccination is no longer required. This is due to the strong medical evidence in support of vaccination. Thus, with due reference to 33(3)(b) Children Act 1989 and while considering proportionality and, particularly, the proportionate response to interference with the parents’ right to respect for private and family life under Article 8 of the European Convention on Human Rights, the court held that vaccination is in line with the best interests of the child. This commentary supports this judgment but identifies a slight prospective anomaly in the approach adopted to children in care and those who are not in care. The resolution of this dichotomy lies in broadening the scope of King LJ’s approach in this case.

Ilias and Ahmed v. Hungary (Eur. Ct. H.R.)

2020 ◽  
Vol 59 (3) ◽  
pp. 495-553
Author(s):  
Vladislava Stoyanova
Keyword(s):  
Human Rights ◽  
Asylum Seekers ◽  
European Convention ◽  
European Court ◽  
Grand Chamber ◽  
Article 5

The European Court of Human Rights (ECtHR) Grand Chamber decided in Ilias and Ahmed v. Hungary that the holding of the applicants, who were asylum-seekers, in the “transit zone” between Hungary and Serbia did not amount to deprivation of liberty under Article 5 of the European Convention on Human Rights (ECHR). On this point, the Grand Chamber overruled the unanimously adopted Chamber judgment. At the same time, the Grand Chamber ruled that Hungary had violated Article 3 ECHR since Hungary did not assess the risk of ill-treatment for the applicants in Serbia.

scholarly journals Criteria for Assessing the Violation of the Right to a Trial Within a Reasonable Time

2021 ◽  
Vol 11 (11) ◽  
Author(s):  
Miodrag Simović ◽  
Marina Simović
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Criminal Proceedings ◽  
Reasonable Time ◽  
European Court ◽  
Fundamental Freedoms ◽  
Protection Of Human Rights ◽  
Criminal Charges ◽  
The Right ◽  
Article 5

The well-known sentence in English Justice delayed is justice denied confirms historical awareness of the value of a speedy court decision. The right to a fair trial within a reasonable time applies to both civil and criminal proceedings. In a criminal trial, the issue of adjournment may also be regulated under Article 5 paragraph 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms when a person is detained. The rationale for the principle, in criminal proceedings, is “based on the need to allow the accused not to remain for too long in a state of uncertainty as to the outcome of criminal charges against him” (Kart v. Turkey, European Court of Human Rights, 2009). Furthermore, the variability of criminal proceedings that take too long - generally damages the reputation of the alleged offender. The European Court of Human Rights explained that “the reason for the verdict in so many lenghty proceedings is that certain contracting parties have not complied with the ‘reasonable time’ requirement under Article 6 paragraph 1 of the European Convention and have not prescribed a domestic remedy for this type of appeal” (Scordino v. Italy (no. 1) [GC], 2006-V).

NEGLIGENCE AND ARTICLE 6: THE GREAT ESCAPE?

2002 ◽  
Vol 61 (1) ◽  
pp. 1-52
Author(s):  
Tom Hickman
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
European Convention ◽  
Public Hearing ◽  
Human Rights Law ◽  
The Public ◽  
European Court ◽  
The Right ◽  
Court Of Appeal

WHEN, the European Court of Human Rights decided in Osman v. UK [1999] 1 F.L.R. 193 that striking out a claim in negligence (in Osman v. Ferguson [1993] 4 All E.R. 344) against the police, for failing to prevent a disturbed teacher injuring a pupil and killing the pupil’s father, amounted to a breach of Article 6 of the European Convention, many domestic lawyers felt that human rights law had gone too far. Article 6 protects the right to a fair and public hearing in the determination of one’s civil rights. The ECtHR did not say that the hearing had not been fair, but that it had not really been a hearing at all. By so deciding, the ECtHR subjected the public policy considerations that had been relied on by the Court of Appeal to strike out the claim to the requirements of legitimacy and necessity which have to be satisfied to justify an interference with Article 6.

‘Marry in Haste …’: The (Partial) Abolition of Same-sex Marriage in Bermuda

2020 ◽  
Vol 20 (1) ◽  
pp. 153-188
Author(s):  
Nicola Barker
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
European Convention ◽  
Same Sex ◽  
Same Sex Marriage ◽  
Same Sex Couples ◽  
European Court ◽  
Legal Context ◽  
The Right ◽  
Court Of Appeal

Abstract In 2018, the British Overseas Territory of Bermuda revoked the right to marry for same-sex couples. In a judgment that reconceives the relationship between sexual orientation and religious freedoms, the Bermuda Supreme Court and Court of Appeal found this revocation to be unconstitutional. I explore the political and legal context in which same-sex marriage was granted and then revoked in Bermuda. I also consider the Bermuda Courts’ judgments in light of the subsequent judgment of the United Kingdom’s Supreme Court in Steinfeld, among others. While there was an assumption from both the Bermuda and United Kingdom Governments that the revocation provision was compatible with the European Convention on Human Rights, I argue that this underestimates the significance of the distinction between declining to recognise a right to same-sex marriage and revoking a right that has already been exercised. While the European Court of Human Rights has not yet found the absence of same-sex marriage to be a violation of Article 12 of the Convention, I argue that the revocation of a right to marry between same-sex couples that had been recognised in accordance with national law changes the terrain on which the Convention arguments would be made.

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