The Retrospective Effect of S. 6 of the Human Rights Act 1998

2002 ◽  
Vol 66 (5) ◽  
pp. 445-457
Author(s):  
Gavin Dingwall
Keyword(s):  
Human Rights ◽  
Burden Of Proof ◽  
Case Law ◽  
European Convention ◽  
Presumption Of Innocence ◽  
Careful Scrutiny ◽  
House Of Lords ◽  
Human Rights Act ◽  
Human Rights Act 1998

When the House of Lords delivered its judgment in Lambert, comment initially concerned the fact that their Lordships held that the legal burden of proof placed on defendants in s. 28 of the Misuse of Drugs Act 1971 contravened the presumption of innocence contained in Article 6(2) of the European Convention on Human Rights. This was indeed a major and potentially far-reaching finding, but it was in fact obiter dicta for the House also held that a defendant who was convicted prior to s. 6 of the Human Rights Act 1998 coming into force could not rely on that section in an appeal after the Act came into force, except in certain carefully prescribed circumstances. It is only now when subsequent case law has challenged this finding that its importance has been fully recognised. This article aims to respond to the academic neglect of this point through a careful scrutiny of the judgments in Lambert and will argue that, despite recent judicial criticism, the majority in Lambert deconstructed a complex statutory framework to expose Parliament's limited intention to ‘bring rights home’.

2. Burden of proof

2019 ◽  
pp. 10-36
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Human Rights ◽  
Burden Of Proof ◽  
Case Law ◽  
Detailed Examination ◽  
European Convention ◽  
Presumption Of Innocence ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Law ◽  
Civil Cases

This chapter focuses on the burden of proof and presumption of innocence in criminal and civil cases under Article 6 of the European Convention on Human Rights (ECHR). It considers the influence of the UK’s Human Rights Act 1998 on the allocation of the burden of proof and compares legal/persuasive burden of proof with the evidential burden. It contains a detailed examination of the case law under this Act and the criteria developed to assess where reverse burdens should apply. It draws on academic commentary in making this analysis. It also looks at situations where the legal and the evidential burden may be split. It concludes with an overview of the law on presumptions.

HUMAN RIGHTS, BURDEN OF PROOF, RETROSPECTIVITY AND PRECEDENT IN THE HOUSE OF LORDS

2002 ◽  
Vol 61 (1) ◽  
pp. 1-52
Author(s):  
I.D. Macphail
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Burden Of Proof ◽  
European Convention ◽  
Presumption Of Innocence ◽  
Criminal Proceedings ◽  
House Of Lords ◽  
Human Rights Act ◽  
Human Rights Act 1998

R. v. Lambert [2001] UKHL 37, [2001] 3 W.L.R. 206 and R. v. Kansal (No. 2) [2001] UKHL 62, [2001] 3 W.L.R. 1562 are important decisions of the House of Lords in the field of human rights and criminal justice. Lambert is primarily concerned with a question as to the retrospective effect of the Human Rights Act 1998 in criminal proceedings, and with the question whether a reverse onus provision in section 28 of the Misuse of Drugs Act 1971 is compatible with the presumption of innocence in Article 6(2) of the European Convention on Human Rights. Kansal is primarily concerned with the former question. A majority of the House in Kansal decided that the decision of the majority of the House in Lambert on the issue of retrospectivity was wrong, but nevertheless should be followed.

2. Burden of proof and presumptions

2017 ◽  
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Human Rights ◽  
Burden Of Proof ◽  
Case Law ◽  
Detailed Examination ◽  
European Convention ◽  
Presumption Of Innocence ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Law ◽  
Civil Cases

This chapter focuses on the burden of proof and presumption of innocence in criminal and civil cases under Article 6 of the European Convention on Human Rights (ECHR). It considers the influence of the UK’s Human Rights Act 1998 on the allocation of the burden of proof and compares legal/persuasive burden of proof with the evidential burden. It contains a detailed examination of the case law under this Act and the criteria developed to assess where reverse burdens should apply. It draws on academic commentary in making this analysis. It also looks at situations where the legal and the evidential burden may be split. It concludes with an overview of the law on presumptions.

Judicial Approaches to the Human Rights Act

2003 ◽  
Vol 52 (3) ◽  
pp. 549-586 ◽  
Author(s):  
David Bonner ◽  
Helen Fenwick ◽  
Sonia Harris-Short
Keyword(s):  
Human Rights ◽  
Case Law ◽  
European Convention ◽  
House Of Lords ◽  
Before And After ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The One ◽  
The Impact ◽  
Court Of Appeal

The case law generated in just over two years' operation of the Human Rights Act 1998 (HRA), enables stocktaking rather than definitive appraisal.1 This article begins by recalling the markedly contrasting roles in United Kingdom law of the European Convention on Human Rights (ECHR) before and after the HRA, the better to appreciate judicial approaches to, and use of, the HRA in the areas surveyed. The second part of the article focuses on judicial use of key provisions of the HRA to interpret primary legislation said to conflict with one or more Convention rights and on judicial use of the power to make a declaration of incompatibility. It considers a selection of decisions, principally of the House of Lords and the Court of Appeal, which raise important points regarding the purpose and scope of the HRA as a constitutional document and indicate judicial uncertainty as to how the HRA should be conceptualised, interpreted and applied. With this emerging picture of a cautious and uncertain judiciary in mind, the final two sections of the article give detailed consideration to the post-HRA jurisprudence within two discrete areas of English law. Part III explores the impact of the HRA on judicial approaches to the clash between the freedoms of expression and assembly, on the one hand, and public order, on the other. Part IV considers the ‘use and abuse’ of the HRA and of Article 8 ECHR in private law family disputes. Finally, certain tentative conclusions as to the perhaps disappointing story of the HRA so far, will be proffered.

R v Secretary of State for the Home Department, ex parte Brind [1991] UKHL 4, House of Lords

2021 ◽  
Author(s):  
Thomas E. Webb
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
European Convention ◽  
The United Kingdom ◽  
Secretary Of State ◽  
House Of Lords ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Home Department ◽  
Editorial Decisions

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R v Secretary of State for the Home Department, ex parte Brind [1991] UKHL 4, House of Lords. The case considered whether the Secretary of State could restrict the editorial decisions of broadcasters as regards the way in which messages from spokespersons for proscribed organizations were broadcast. The United Kingdom was a signatory to the European Convention on Human Rights (ECHR) when the case was heard, but the case also predates the passage of the Human Rights Act 1998. There is discussion of the legal position of the ECHR under the common law in the United Kingdom, and the concept of proportionality in United Kingdom’s domestic jurisprudence. The document also includes supporting commentary from author Thomas Webb.

R v Secretary of State for the Home Department, ex parte Simms [1999] UKHL 33, in the House of Lords

2021 ◽  
Author(s):  
Thomas E. Webb
Keyword(s):  
Human Rights ◽  
Public Law ◽  
European Convention ◽  
Secretary Of State ◽  
Parliamentary Sovereignty ◽  
House Of Lords ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Home Department ◽  
The Relationship

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in R v Secretary of State for the Home Department, ex parte Simms [1999] UKHL 33, House of Lords. The case considered whether the Secretary of State, and prison governors, could restrict prisoners’ access to journalists investigating alleged miscarriages of justice. In addition to the European Convention on Human Rights (ECHR) Article 10 issues this raises, Lord Hoffmann also in obiter dicta discussed the relationship between the Human Rights Act 1998, parliamentary sovereignty, and the concept of legality. The document also includes supporting commentary from author Thomas Webb.

3. The Human Rights Act 1998 (HRA)

2017 ◽  
Author(s):  
Bernadette Rainey
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Public Authority ◽  
European Convention ◽  
Essential Information ◽  
The Future ◽  
Human Rights Act ◽  
Human Rights Act 1998

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter focuses on the Human Rights Act 1998 (HRA), which was introduced to allow individuals to argue cases involving rights contained in the European Convention on Human Rights (ECHR) directly before a UK court. It first explains the background and rationale underlying the HRA, focusing on the arguments for and against a Human Rights Act, as well as the human rights that are covered and not covered by the HRA. The chapter then discusses the judicial powers/duties and remedies under the HRA, along with powers of derogation and reservation, with an emphasis on ECtHR case law, the interpretation clause, and declarations of incompatibility with the Convention rights. In addition, it examines the HRA’s use of proportionality and judicial deference doctrines when deciding whether an act by a public authority is incompatible with a Convention right. The chapter concludes by assessing the future of the HRA.

12. Grounds for judicial review: irrationality, proportionality, merits-based judicial review, and the Human Rights Act 1998

2017 ◽  
Author(s):  
Colin Faragher
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Case Law ◽  
Essential Information ◽  
House Of Lords ◽  
Relevant Case ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Principle Of Proportionality ◽  
The Impact

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the grounds for judicial review. These include irrationality—meaning unreasonableness—which is now linked to the principle of proportionality. In addition, the relevant case law and key principles concerning distinction between procedural and merits based judicial review are fully explained. The impact of the Human Rights Act 1998 on judicial review is assessed generally. The emergence and development of the ‘outcomes is all’ approach to judicial review where breach of convention rights is alleged is explored by examining a number of significant House of Lords cases.

scholarly journals Old age psychiatry and the law

2002 ◽  
Vol 180 (2) ◽  
pp. 116-119 ◽  
Author(s):  
Robin Jacoby
Keyword(s):  
Human Rights ◽  
Old Age ◽  
Case Law ◽  
European Convention ◽  
The Status ◽  
Human Rights Act ◽  
Old Age Psychiatry ◽  
Human Rights Act 1998 ◽  
Incapacitated Patients ◽  
Do So

BackgroundOld age psychiatry is no less subject to increasing legal and quasi-legal restraint than other branches of the profession, but the emphases are different. Two themes predominate: first, that of capacity or competence; and second, to what extent formal legal measures should be implemented in cases where incapacitated patients do not dissent from, as opposed to giving active consent to, admission to hospital or receiving treatment.AimsTo discuss the issues of capacity or competence, especially in relation to recent legislation and judgements and to proposed legislation in England and Wales.MethodSelective review and discussion of recent case law and current and proposed statute law.Results and conclusionsThe Bournewood case threatened but ultimately failed to upset the status quo. However, the European Convention on Human Rights and the British Human Rights Act 1998 may yet do so.

7 The Human Rights Act 1998: Bringing Rights Home

1998 ◽  
Vol 1 ◽  
pp. 125-146
Author(s):  
Stephanie Palmer
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
European Convention ◽  
Bill Of Rights ◽  
Labour Government ◽  
House Of Lords ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Government ◽  
Domestic Law

The Labour government has quickly acted on its election promise to introduce a bill of rights into domestic law. The Human Rights Act 1998 partially incorporates the European Convention on Human Rights (ECHR) into United Kingdom law. This legislation is part of a wider constitutional package including devolved government for Scotland and Wales and reform of the House of Lords. The government’s programme is intended to modernise and indeed transform the British constitutional structure. According to the government, the Human Rights Act will bring rights home. Individuals will be able to argue for their Convention rights in the United Kingdom’s own courts and tribunals and judges will be able to adjudicate directly on Convention issues. All new laws will be carefully scrutinised to ensure compatibility with Convention rights.

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