scholarly journals Smith v Chief Constable of Sussex Police; [2008] UKHL; 50

2012 ◽  
Vol 21 (1) ◽  
pp. 141-152
Author(s):  
Carol Brennan
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Law Reform ◽  
House Of Lords ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Common ◽  
The Law ◽  
The Relationship ◽  
Exclusive Focus

WHO HAS FIRST CLAIM ON “THE LOYALTY OF THE LAW”?Smith v Chief Constable of the Sussex Police (hereafter Smith) was heard by the House of Lords at the same time as Chief Constable of the Hertfordshire Police v Van Colle and another because they had two uniting factors. First, they both concerned the recurring question of the ambit of police liability in the situation described by Lord Bingham thus: “…if the police are alerted to a threat that D may kill or inflict violence on V, and the police take no action to prevent that occurrence, and D does kill or inflict violence on V, may V or his relatives obtain civil redress against the police, and if so, how and in what circumstances?”2  Secondly, considering the cases together highlighted the wider issue of the relationship between decisions under the Human Rights Act 1998 (hereafter the HRA) and the development of the common law. The Law Lords embarked on a more extensive examination of these issues in Smith and thus that case will be the exclusive focus of this note.  In addition, the study of Smith raises questions regarding proposals for law reform as well as about judicial perceptions of policy priorities. 

11. Judge-made law

2018 ◽  
Author(s):  
Neil Parpworth
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Common ◽  
The Law ◽  
The Uk

This chapter considers a further source of the UK constitution: the law made by the judicial branch of government as a result of the cases heard by the courts. Today it is widely accepted that judge-made law is a reality. It takes two main forms: the development of the common law; or the interpretation of statutes. The two main approaches of the courts to interpretation of Acts of Parliament—the literal approach and the purposive approach—are discussed. The interpretative obligation imposed on the courts by s 3 of the Human Rights Act 1998 is also reviewed.

11. Judge-made law

2020 ◽  
pp. 243-250
Author(s):  
Neil Parpworth
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Common ◽  
The Law ◽  
The Uk

This chapter considers a further source of the UK constitution: the law that is made by the judicial branch of government as a result of the cases heard by the courts. Today it is widely accepted that judge-made law is a reality. It takes two main forms: the development of the common law; or the interpretation of statutes. The two main approaches of the courts to interpretation of Acts of Parliament—the literal approach and the purposive approach—are discussed. In addition, the interpretative obligation imposed on the courts by s 3 of the Human Rights Act 1998 is also reviewed.

R (on the application of Daly) v Secretary of State for the Home Department [2001] UKHL 26, House of Lords

2020 ◽  
Author(s):  
Thomas E. Webb
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Public Law ◽  
Rights Protection ◽  
Secretary Of State ◽  
House Of Lords ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Common ◽  
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 R (on the application of Daly) v Secretary of State for the Home Department [2001] UKHL 26, House of Lords. This case considered whether a blanket policy excluding prisoners from cell searches was a proportionate response that was necessary to achieve the aim of that policy. There is also discussion of whether the common law could provide an alternative system of rights protection to that under the Human Rights Act 1998. The document also includes supporting commentary from author Thomas Webb.

R (on the application of Daly) v Secretary of State for the Home Department [2001] UKHL 26, House of Lords

2021 ◽  
Author(s):  
Thomas E. Webb
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Public Law ◽  
Rights Protection ◽  
Secretary Of State ◽  
House Of Lords ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Common ◽  
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 R (on the application of Daly) v Secretary of State for the Home Department [2001] UKHL 26, House of Lords. This case considered whether a blanket policy excluding prisoners from cell searches was a proportionate response that was necessary to achieve the aim of that policy. There is also discussion of whether the common law could provide an alternative system of rights protection to that under the Human Rights Act 1998. The document also includes supporting commentary from author Thomas Webb.

The positive duty of prevention in the common law and the Convention

Legal Studies ◽  
2019 ◽  
Vol 40 (2) ◽  
pp. 209-229
Author(s):  
Achas K Burin
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
Common Law ◽  
Positive Duty ◽  
New Approach ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Common ◽  
The Right ◽  
The Relationship

AbstractTwenty years after the Human Rights Act 1998 came into force, where are we in our understanding of the relationship between tort and human rights? This paper argues that we are not as far along in our understanding as we could be. The reason for that has been the methodology we used to understand the relationship, focused as it was around remedies, limitation and causation. This paper proposes a new approach, based around the right rather than the remedy. It aims to theorise one particular cause of action – the duty in Osman v United Kingdom – to exemplify this approach. For English lawyers, who have historically used the framework of the forms of action to understand our own law, it is argued that this a good way to comprehend the European jurisprudence.

E.C.H.R. Remedies From a Common Law Perspective

2000 ◽  
Vol 49 (3) ◽  
pp. 517-527 ◽  
Author(s):  
Sir Robert Carnwath
Keyword(s):  
Title I ◽  
Common Law ◽  
Law Reform ◽  
Full Account ◽  
Legal Remedy ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Common ◽  
The Law ◽  
Difficult Subject

In this paper, I shall attempt to take a practical view of some of the issues which the common law courts will be facing in the coming months, in granting remedies under the Human Rights Act 1998. I shall be looking at these issues from the viewpoint of a judge, sitting regularly in judicial review cases, and also as Chairman of the Law Commission, which has for many years taken full account of the Convention in its law reform proposals. Notwithstanding the width of the title, I shall concentrate on remedies in damages, since that is the area to which the Law Commission's work has been mainly directed in recent times. I shall be referring to the recent LCD Consultation Paper on proposed rules under the Act.1 I shall steer clear of the difficult subject of the “declaration of incompatibility”, which has been fairly described as “not a legal remedy but a species of booby prize…”.2

1. Introduction

2021 ◽  
pp. 1-26
Author(s):  
Andrew L-T Choo
Keyword(s):  
Human Rights ◽  
Direct Evidence ◽  
Circumstantial Evidence ◽  
Law Reform ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Basic Concepts ◽  
The Law ◽  
Law Of Evidence

Chapter 1 examines a number of basic concepts and distinctions in the law of evidence. It covers facts in issue and collateral facts; relevance, admissibility, and weight; direct evidence and circumstantial evidence; testimonial evidence and real evidence; the allocation of responsibility; exclusionary rules and exclusionary discretions; free(r) proof; issues in criminal evidence; civil evidence and criminal evidence; the implications of trial by jury; summary trials; law reform; and the implications of the Human Rights Act 1998. This chapter also presents an overview of the subsequent chapters.

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.

20. Human Rights IV: The Impact of the Human Rights Act 1998

2021 ◽  
pp. 528-578
Author(s):  
Ian Loveland
Keyword(s):  
Human Rights ◽  
Common Law ◽  
The Rule Of Law ◽  
The Status ◽  
Legislative Policy ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Executive Action ◽  
The Common ◽  
The Impact

This chapter analyses some of the leading cases in which the courts addressed different aspects of the Human Rights Act 1998, and draws out the constitutional implications of the courts’ initial conclusions. The discussions cover the interlinked issues of the extent to which the courts have recognised a distinction between Convention articles and Convention Rights, the approach taken to statutory interpretation mandated by s 3, and the use of Declarations of Incompatibility under s 4; the doctrine of judicial ‘deference’ to legislative policy decisions; the ‘horizontality’ of the Act and its impact on the development of the common law; and the status of proportionality as a ground of review of executive action. The chapter concludes with an assessment of whether the Act has triggered a shift in understandings on the proper scope of the doctrines of the sovereignty of Parliament and the rule of law within the modern constitutional order.

1. Introduction

Evidence ◽  
2018 ◽  
Author(s):  
Andrew L-T Choo
Keyword(s):  
Human Rights ◽  
Direct Evidence ◽  
Circumstantial Evidence ◽  
Law Reform ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Basic Concepts ◽  
The Law ◽  
Law Of Evidence

Chapter 1 examines a number of basic concepts and distinctions in the law of evidence. It covers facts in issue and collateral facts; relevance, admissibility, and weight; direct evidence and circumstantial evidence; testimonial evidence and real evidence; the allocation of responsibility; exclusionary rules and exclusionary discretions; free(r) proof; issues in criminal evidence; civil evidence and criminal evidence; the implications of trial by jury; summary trials; law reform; and the implications of the Human Rights Act 1998. This chapter also presents an overview of the subsequent chapters.

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