scholarly journals LORD DENNING, MAGNA CARTA AND MAGNANIMITY

2015 ◽  
Vol 27 ◽  
pp. 106-129 ◽  
Author(s):  
Simon Lee
Keyword(s):  
Human Rights ◽  
Home Office ◽  
Holy Grail ◽  
Magna Carta ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Appeal Decision ◽  
The Times ◽  
The Individual ◽  
Court Of Appeal

Lord Denning’s assessment of Magna Carta at its 750th anniversary has stood the test of half a century: “the greatest constitutional document of all times—the foundation of the freedom of the individual against the arbitrary authority of the despot”. His longer, but still succinct, article for The Times for the same anniversary has not been bettered. Yet at the time of Magna Carta’s 800th anniversary we have lost sight of two other works of Lord Denning which could make a distinctive contribution to our current constitutional debates. Whereas Lord Neuberger has linked the real Magna Carta to the fictitious Holy Grail in an entertaining lecture on law and myth, for legal scholars the Holy Grail is a long lost text or case. An earlier essay identified the links between the opening clause of Magna Carta 1215 and s 13 of the Human Rights Act 1998 as worthy of rediscovery. This article presents two further candidates: a neglected lecture on Borrowing from Scotland by Lord Denning in 1961 and a neglected Court of Appeal decision in 1975 applying Magna Carta, in which Lord Denning presided as Master of the Rolls, R v Secretary of State for the Home Office, ex p Phansopkar.[6Between them, they can offer refreshing insights into contemporary constitutional controversies.  

The extent to which a conviction can be regarded as ‘safe’, notwithstanding unfairness in the trial process, has had to be re-considered following the enactment of the Human Rights Act 1998, and the decision of the European Court of Human Rights in R v Condron [2000] Crim LR 679. The result is that the Court of Appeal should not disengage the issue of the fairness of the trial from the issue of whether or not the conviction is safe. In essence significant violations of the right to a fair trial provided by Art 6 of the European Convention on Human Rights are, of themselves, likely to render a conviction unsafe; see further R v Francom (2000) The Times, 24 October. In R v Togher and Others (2000) The Times, 21 November, Lord Woolf CJ went so far as observe that the approach of the Court of Appeal should be in step with that of the European Court of Human Rights with the result that the denial of a fair trial contrary to Art 6 would now inevitably lead to a finding that the resulting conviction was unsafe. Such a conclusion is a direct result of the obligation created by s3(1) of the Human Rights Act 1998 to the effect that domestic legislation, such as the Criminal Appeal Act 1995, should be read, so far as possible, in a manner that gave effect to Convention rights. R v Davis (2000) The Times, 25 July, whilst not departing from this broad proposition, emphasises that it may still be necessary to look at the circumstances of a particular case before concluding that a violation of Art 6 has rendered a conviction unsafe – it will be a matter of fact and degree. Even if an appeal against conviction succeeds the accused may still face a retrial. The Court of Appeal has the discretion to order a retrial under s 7 of the 1968 Act if it appears to the court that the interests of justice so require. If there has been a total mistrial the Court of Appeal can issue a writ of venire de novo – setting events back to where they were before the irregularity that rendered the trial a mistrial occurred. Some appeals against conviction will be partially successful in that the Court of Appeal can allow the appeal but substitute a conviction for a lesser-included offence – an obvious example being the quashing of a murder conviction and the substitution of a conviction for manslaughter. Appeal by the prosecution: against over lenient sentences

1996 ◽  
pp. 72-73
Keyword(s):  
Human Rights ◽  
De Novo ◽  
Fair Trial ◽  
Direct Result ◽  
European Court ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Times ◽  
The Right ◽  
Court Of Appeal

R (on the application of H) v London North and East Region Mental Health Review Tribunal [2001] EWCA Civ 415, Court of Appeal

2020 ◽  
Author(s):  
Thomas E. Webb
Keyword(s):  
Mental Health ◽  
Human Rights ◽  
Public Law ◽  
Mental Health Act ◽  
East Region ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Court Of Appeal ◽  
Health Review

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 H) v London North and East Region Mental Health Review Tribunal [2001] EWCA Civ 415, Court of Appeal. This case concerned whether the language of ss 72–73 of the Mental Health Act 1983 could be read in such a way as to be compatible with the Human Rights Act 1998 (HRA), under s. 4 of that Act, or whether such an interpretation was not possible. In the latter case the court should consider making a declaration of incompatibility. This note explores s. 4 HRA declarations of incompatibility. The document also includes supporting commentary from author Thomas Webb

17. Remedies and limitation

2018 ◽  
Author(s):  
Vera Bermingham ◽  
Carol Brennan
Keyword(s):  
Human Rights ◽  
Private Information ◽  
Committee Report ◽  
History Of ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
English Law ◽  
Developing Area ◽  
The Individual ◽  
The Right

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. The Calcutt Committee Report on Privacy and Related Matters (1990) defines privacy as ‘the right of the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication of information’. While a number of different torts indirectly address wrongful intrusion into another’s privacy, English law has not directly protected privacy in its own right. It was the Human Rights Act 1998 that has made it possible to use breach of confidence in regulating the publication of private information. This chapter looks at the history of the protection of privacy in English law, discusses the current legal approaches to privacy, examines the impact of the Human Rights Act 1998 on this developing area of law, and evaluates English law on privacy in an international context.

MIND THE GAP… : CHILD PROTECTION, STATUTORY INTERPRETATION AND THE HUMAN RIGHTS ACT

2002 ◽  
Vol 61 (3) ◽  
pp. 499-544
Author(s):  
Joanna Miles
Keyword(s):  
Human Rights ◽  
Child Protection ◽  
Care Plan ◽  
Statutory Interpretation ◽  
Key Issues ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Court Of Appeal

“The problem is more with what the [Children] Act does not say than with what it does”: Hale L.J., Court of Appeal at para. [50]. Therein lay the problem addressed in Re S (Minors) (Care Order: Implementation of Care Plan) [2002] UKHL 10, [2002] 2 W.L.R. 720; reversing in part [2001] EWCA Civ 757, [2001] 2 F.L.R. 582. This case involves key issues in child protection under the Children Act 1989 and provides further guidance regarding the courts’ interpretation of legislation under the Human Rights Act 1998.

scholarly journals Investigating rape: human rights and police accountability

Legal Studies ◽  
2017 ◽  
Vol 37 (1) ◽  
pp. 54-77
Author(s):  
Joanne Conaghan
Keyword(s):  
Domestic Violence ◽  
Human Rights ◽  
European Convention ◽  
Metropolitan Police ◽  
Police Accountability ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Court Of Appeal

This paper explores the implications of D v Commissioner of Police for the Metropolis [2016] QB 161, a recent decision of the Court of Appeal in which two victims of a serial rapist successfully sued the Metropolitan police for investigative failures relying on Art 3 of the European Convention of Human Rights and the Human Rights Act 1998. The paper reflects upon the extent to which English courts are willing to recognise a duty to investigate within the wider context of civil claims against the police, particularly with regard to failures arising from the investigation of crimes of sexual and domestic violence. The comparative scope of tort and human rights claims is also considered, along with the evolving jurisprudential trend towards drawing a firm line between the two kinds of claim.

scholarly journals Human Rights and Parliamentary Sovereignty in New Zealand

2004 ◽  
Vol 35 (2) ◽  
pp. 341 ◽  
Author(s):  
Petra Butler
Keyword(s):  
Human Rights ◽  
New Zealand ◽  
Supreme Court ◽  
Special Focus ◽  
Parliamentary Sovereignty ◽  
House Of Lords ◽  
The Supreme Court ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Court Of Appeal

The paper examines whether there was any basis for Parliament to enact section 3(2) of the Supreme Court Act 2003 in regard to human rights decisions of the Court of Appeal. The paper asks whether the Court of Appeal has indeed been "activist" in its human rights decisions. The discussion focuses on the areas where judicial activism might be suspected, firstly the filling of legislative gaps, and secondly statutory interpretation, with a special focus on implied repeal. Relevant decisions of the House of Lords under the Human Rights Act 1998 (UK) are used as a contrast to the decisions of the New Zealand Court of Appeal. The paper comes to the conclusion that the New Zealand Court of Appeal has not been activist in the area of human rights.

scholarly journals Detained patients and the right to refuse treatment

2014 ◽  
pp. 59
Author(s):  
Paul Bowen
Keyword(s):  
Mental Health ◽  
Human Rights ◽  
Interested Party ◽  
Mental Health Act ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Right To Refuse Treatment ◽  
The Right ◽  
Court Of Appeal ◽  
Right To Refuse

<p>R (Wilkinson) v. Broadmoor RMO (1) Mental Health Act Commission (2) Secretary of State for Health (Interested party) [2001] EWCA Civ 1545<br />Court of Appeal (22nd October 2001) Simon Brown LJ, Brooke LJ and Hale LJ</p><p>A detained patient’s right to refuse treatment to which he or she objects has been greatly strengthened by a recent decision of the Court of Appeal, applying the provisions of the Human Rights Act 1998, although in reaching its decision the Court of Appeal has posed as many questions for the future of the law in this area as it has answered.</p>

Donoghue v Poplar Housing and Regeneration Community Association Limited and another [2001] EWCA Civ 595, Court of Appeal

2020 ◽  
Author(s):  
Thomas E. Webb
Keyword(s):  
Human Rights ◽  
Public Law ◽  
Public Body ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Court Of Appeal ◽  
Public Bodies

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Donoghue v Poplar Housing and Regeneration Community Association Limited and another [2001] EWCA Civ 595, in the Court of Appeal. This case concerned whether Poplar Housing was a public body for the purposes of s. 6(3)(b) of the Human Rights Act 1998 (HRA). Public bodies are required to act in accordance with the HRA. The document also includes supporting commentary from author Thomas Webb.

Assisted suicide and human rights in the UK

2010 ◽  
Vol 34 (5) ◽  
pp. 187-190 ◽  
Author(s):  
Martin Curtice ◽  
Charlotte Field
Keyword(s):  
Human Rights ◽  
Assisted Suicide ◽  
Medical Science ◽  
Court Case ◽  
High Court ◽  
Medical Disorders ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Individual ◽  
The Uk

SummaryAssisted suicide is an emotive issue that will undoubtedly continue to grab media headlines, especially as medical science is able to prolong survival in chronic medical disorders. The law in the UK as applied under the Suicide Act 1961 is currently very sympathetic to cases of assisted suicide, whereby the individual has travelled abroad to a country where it is lawful to end their life, in that people assisting them and thus committing an offence have not been prosecuted. This article analyses a recent High Court case pertaining to the Suicide Act 1961 demonstrating the central importance of the Human Rights Act 1998 in such cases. It then discusses implications for clinicians and the future of the Suicide Act itself.

Seeking the principle: chancels, choices and human rights

Legal Studies ◽  
2002 ◽  
Vol 22 (2) ◽  
pp. 238-258 ◽  
Author(s):  
Ian Dawson ◽  
Alison Dunn
Keyword(s):  
Human Rights ◽  
Public Authority ◽  
European Convention ◽  
Parish Church ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Modern Context ◽  
The Right ◽  
The Cost ◽  
Court Of Appeal

Chancel liability is an ancient property right, enforced by a Parochial Church Council, attaching to certain former rectorial lands. It requires a landowner to bear the cost of repair of the parish church chancel. The right poses particular problems for a purchaser, not least because it is hard to discover and is not limited to the value of the land. A recent decision of the Court of Appeal has found that a Parochial Church Council falls within section 6 of the Human Rights Act 1998 as a public authority, and that chancel liability infringes article 1 of the First Protocol of the European Convention on Human Rights. This paper will dispute the rationale used by the Court of Appeal, and in so doing will argue that whilst chancel liability is outmoded, widely regarded as incongruous and does not bear scrutiny in its modern context, it should nevertheless be removed on a principled basis, avoiding unwanted repercussions elsewhere in the law.

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