scholarly journals Necessary Intrusion or Criminalising the Innocent? An Exploration of Modern Criminal Vetting

2012 ◽  
Vol 76 (2) ◽  
pp. 140-163 ◽  
Author(s):  
Chris Baldwin
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Soft Materials ◽  
European Convention ◽  
Judicial Interpretation ◽  
West Midlands ◽  
Subsequent Application ◽  
Legislative Framework ◽  
Home Department ◽  
Proportionality Test

This article considers the processes of criminal vetting and outlines the legislative framework allowing such disclosures and subsequent judicial interpretation of that framework. The focus is on disclosure of non-conviction (so-called ‘soft’) materials on ‘enhanced’ certificates and subsequent challenges to those disclosures at judicial review. Key cases are analysed, including R (on the application of X) v Chief Constable of West Midlands Police (2004) and R (on the application of L) (FC) (Appellant) v Commissioner of Police of the Metropolis (Respondent) (2009). The proportionality test in R (L) is noted and its subsequent application in the recent decisions of R (on the application of C) v Chief Constable of Greater Manchester; Secretary of State for the Home Department (2011) and R (on the application of B) v Chief Constable of Derbyshire Constabulary (2011) is scrutinised. The article also highlights interference in Article 8 of the European Convention on Human Rights (right to privacy) and questions whether interference can be justified, and whether the present judicial focus on right of representations in such cases is misplaced.

The New Basic Laws on Human Rights: A Mini-Revolution in Israeli Constitutional Law?

1996 ◽  
Vol 14 (2) ◽  
pp. 173-183 ◽  
Author(s):  
David Kretzmer
Keyword(s):  
Human Rights ◽  
Human Dignity ◽  
Judicial Review ◽  
Constitutional Law ◽  
Judicial Interpretation ◽  
Basic Law ◽  
Democratic State ◽  
Human Rights Treaties ◽  
Proportionality Test ◽  
The Way

In 1992 the Israeli Knesset enacted the Basic Law: Freedom of Occupation and the Basic Law: Human Dignity and Freedom. These basic laws, as chapters in Israel's emerging formal Constitution, have opened the way for judicial review of parliamentary legislation that violates human rights. Opposition from some political quarters prevented inclusion in the basic laws of some rights protected under modern constitutions and human rights treaties. However, the rights protected include ‘human dignity’, a term that can be broadened by judicial interpretation so as to include violations of rights not specifically mentioned in the basic laws. The basic laws lay down a balancing test for deciding whether restrictions on protected rights are legitimate. All restrictions must be prescribed by a law that befits Israel as a Jewish and democratic State, that was enacted for a worthy purpose and that meets the proportionality test.

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.

Fundamental notions

2020 ◽  
pp. 26-53
Author(s):  
Raphaël Gellert
Keyword(s):  
Risk Management ◽  
Human Rights ◽  
Data Protection ◽  
European Convention ◽  
Comprehensive Overview ◽  
Iso Standards ◽  
Depth Analysis ◽  
Proportionality Test ◽  
Proportionality Principle

The goal of this chapter is twofold. First, it provides a comprehensive overview of two key notions: risk and regulation. In the case of risk this includes the following. An explanation of risk and risk management, including an appraisal and description of the technical notion of risk as it appears in ISO Standards. It also provides for a discussion of some of the key methods for assessing and managing risks, including some of the main drawbacks and criticisms that have been raised against the use of risk management. In the case of regulation, it includes a more in-depth analysis of the notion, and of its constitutive elements; a discussion on the conflation between law and regulation; and a discussion on what exactly the object of regulation is. These discussions of key caveats pertaining to these two notions serve as the backbone of many of the analyses carried out in later chapters (e.g. understanding data protection in the light of the constitutive elements of regulation, discussing various methods for data protection risk management, etc). Second, beyond these caveats, this chapter also shows and contrasts how both risk and regulation can be analysed as a matter of two balancing exercises with associated safeguards, and hence, as variations around the proportionality principle. A grid at the end of the chapter summarises this, with reference to the European Convention on Human Rights proportionality test.

scholarly journals Concept of abuse of procedural rights: general theoretical analysis (based on the case-law of the European Court of Human Rights)

2021 ◽  
pp. 166-175
Author(s):  
Taras Pashuk
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Fundamental Rights ◽  
European Convention ◽  
Judicial Interpretation ◽  
Judicial Practice ◽  
European Court ◽  
Wide Range ◽  
Restrictive Measures ◽  
Procedural Rights

The author analyses the concept of abuse of procedural rights with reference to the case-law of the European Court of Human Rights (ECtHR). In their applications to the ECtHR the applicants often claim that the violations the European Convention on Human Rights (the ECHR) were accompanied by various abuses by the domestic authorities. Such abuses may be of procedural nature and those matters are examined by the ECtHR quite often because the Convention is primarily aimed at protecting an individual from State arbitrariness. At the same time, the problem of abuse of procedural rights may arise before the ECtHR, when such acts were committed by an applicant. This aspect of the problem is being examined in the present article. In this regard the issue of abuse of procedural rights appears in the case-law of the ECtHR in the context of the complaints concerning the alleged violations of rights under the ECHR. This may happen when the State measures to address such a negative phenomenon (for example, penalty for the abuse of procedural right) may at the same time affect the fundamental rights under the Convention. Apart from that, this issue may arise in the context of the application of restrictive measures by the ECtHR itself due to applicants’ abuse of their right of individual petition to the ECtHR. The main features of the abuse of procedural rights arising from the case-law of the ECtHR are the following: (1) using the procedural right contrary to its purpose (in view of multiple purposes of human conduct, this condition implies the need to establish a dominant purpose in the procedural conduct of the person); (2) the presence of damage resulting from such procedural conduct; (3) the exceptional nature of such procedural conduct (implying the necessity to focus on the explicit and obvious facts of procedural abuses). The combination of these features should be used cumulatively in order to determine correctly the limits of applicability of this concept and distinguish it from other related concepts, such as legitimate use of procedural right, refusal to use the procedural right, good-faith mistake in procedural conduct. In addition, the lack of legislative regulation of this institution in the law on criminal procedure of Ukraine calls for the development of judicial practice under Article 185-3 of the Code of Administrative Offenses of Ukraine as regards the administrative liability for contempt of court. It is argued that the provisions of Article 185-3 of that Code, if given appropriate judicial interpretation, can cover a wide range of procedural abuses. Keywords: abuse of procedural right, realisation of subjective right, contempt of court.

scholarly journals Secretary of State for the Home Department v MB: Secretary of State for the Home Department v AF [2007] UKHL 46

2012 ◽  
Vol 20 (1) ◽  
pp. 221-238
Author(s):  
Susan Edwards
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Secretary Of State ◽  
House Of Lords ◽  
Indefinite Detention ◽  
Home Department ◽  
Article 5

HUMAN SACRIFICES AT THE ALTAR OF TERRORIST CONTROLJoseph K in Franz Kafka’s The Trial is arrested and put on trial, but the evidence against him is never disclosed and so he is suspended in a legal nightmare. On December 16th 2004, the House of Lords, in A and others v Secretary of State for the Home Department, ruled that indefinite detention of non-UK nationals, without charge or trial, was incompatible with Article 5 of the European Convention of Human Rights (ECHR). In A and others v Secretary of State for the Home Department (No 2), Lord Carswell said, “…no court will readily lend itself to indefinite detention without charge, let alone trial.”

17. Irrationality and Proportionality

2018 ◽  
Author(s):  
Lisa Webley ◽  
Harriet Samuels
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
History Of ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Complete Series ◽  
Explanatory Text ◽  
The Difference ◽  
Proportionality Test ◽  
Rights Issue

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter, which discusses the circumstances for judicial review of a public authority’s decision on the grounds that it is irrational, first explains the history of irrationality and ‘Wednesbury unreasonableness’, to provide some background to the topic and to chart its development. It then considers cases in which the courts have discussed different versions of the irrationality test, discusses the difference between irrationality and proportionality, and examines the development of proportionality and its use in judicial review cases. The chapter distinguishes between proportionality and merits review, and discusses the use of judicial deference by the courts. Proportionality, and not irrationality, is the test used to determine whether a public authority has acted unlawfully when its decision is challenged by judicial review under section 6 of the Human Rights Act 1998. The irrationality test is used in non Human Rights Act judicial review cases but the courts have also used the proportionality test in cases involving common law rights. The chapter concludes by considering the discussion in the case law and the scholarship as to whether the irrationality test should be replaced by the test of proportionality across both types of case: traditional judicial review cases and those involving a human rights issue.

Pham v Secretary of State for the Home Department [2015] UKSC 19, Supreme Court

2019 ◽  
Author(s):  
Thomas E. Webb
Keyword(s):  
European Union ◽  
Human Rights ◽  
United Kingdom ◽  
Supreme Court ◽  
Judicial Review ◽  
Public Law ◽  
European Union Law ◽  
The United Kingdom ◽  
Secretary Of State ◽  
Home Department

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Pham v Secretary of State for the Home Department [2015] UKSC 19, Supreme Court. This case considers the introduction of proportionality as a ground of judicial review beyond human rights and European Union law in the United Kingdom. The document also includes supporting commentary from author Thomas Webb.

HUMAN RIGHTS REVIEW: RAISING THE STANDARD

2001 ◽  
Vol 60 (3) ◽  
pp. 441-492
Author(s):  
Mark Elliott
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Search Techniques ◽  
Secretary Of State ◽  
General Importance ◽  
House Of Lords ◽  
A Cell ◽  
Home Department ◽  
Rights Issues ◽  
In Cells

The decision of the House of Lords in R. (Daly) v. Secretary of State for the Home Department [2001] 2 W.L.R. 1622 provides authoritative guidance as to how human rights issues should be treated in judicial review cases. In common with a number of other recent leading cases in this area, Daly concerns prisoners’ rights. All governors of closed prisons were required by the Home Secretary to operate a cell searching policy under which prisoners were not permitted to remain in their cells during searches, so as to prevent intimidation of those conducting searches and to stop prisoners gaining knowledge of search techniques. Prison officers were permitted to examine, but not read, legal correspondence stored in cells. The claimant, who stored such correspondence in his cell, successfully contended that the policy was unlawful to the extent that it precluded prisoners’ presence during examination of legal correspondence. This note highlights four points of general importance which arise from their Lordships’ decision.

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