In R (Adath Yisroel Burial Society) v Senior Coroner for Inner North London (2018) EWHC 969 (Admin) a Divisional Court (Singh LJ and Whipple J) observed (paragraph 94) that in Eweida v UK the ECtHR emphasized the importance of the rights set out in Article 9, and stated that there are several things of importance to note about the terms of Article 9:-

“96.      First, it does not protect only freedom of religion. It protects freedom of all thought (including the beliefs of those who have no religious faith) and freedom of conscience.

Read more »

In R (Mott) v Environment Agency (2018) UKSC 10 the Supreme Court ruled that in the case of “control” short of “expropriation” consideration must be given to whether the effects are “excessive and disproportionate” (para 32), drawing a “fair balance” between public and private interests (para 33), and that compensation is potentially relevant (paras 33-35). Nonetheless (para 37), (1) the national authorities have a “wide margin of discretion” in the imposition of necessary environmental controls, (2) A1/P1 of the ECHR gives “no general expectation of compensation for environmental effects”, and (3) where an authority has given proper consideration to the issue of “fair balance”, the Courts should give weight to their assessment.

Section 7(5)(a) of the Human Rights Act 1998 provides that proceedings must be brought before the end of the period of one year beginning with the date on which the act complained of took place. In O’Connor v BSB (2017) UKSC 78 the Supreme Court considered whether a discrimination claim was time-barred, and, reversing the Court of Appeal, unanimously held that it was not. Read more »

In Smith v Lancashire Teaching Hospitals NHS Foundation Trust [2017] EWCA Civ 1916 an issue arose whether a provision in the Fatal Accidents Act (“the FAA”) was compatible with Article 14 of the ECHR (prohibition of discrimination) read in conjunction with Article 8 (right to respect for private and family life), and therefore whether the bereavement damages regime under the FAA falls within the ambit of Article 8, so as to engage Article 14.  In order to bring herself within Article 14, Ms Smith did not have to show that the State had infringed her rights under Article 8.  She did need to show that her complaint fell within the “ambit” of Article 8.

Read more »

In Southend Borough Council v CO (2017) EWHC 1949 (Fam) the Court held that the parents of children of children who had been removed into care were not obliged to delete an online Petition to Parliament protesting against the Court Orders. Given that there was no sufficient evidence that the Petition risked adversely impacting the children’s placements or causing them emotional harm, the children’s limited Article 8 rights were outweighed by the parents’ Article 10 rights. Parents have an important right to speak out against public authority intervention in their family where they consider that the intervention is unjust irrespective of the merits of the parents’ views.

The PSED is not triggered by a reformulation of policy, as distinct from a change of policy : Miyanji v SSHD (2017) EWHC 1939 (QB).

Suspension and/or consequential publicity may damage reputation. When it does so Article 8 may be engaged.  Proportionality will then apply to the suspension.  See paragraphs 95-98 inclusive of Divisional Court Judgment in R (Crompton) v Police and Crime Commissioner for South Yorkshire (2017) EWHC 1349 (Admin).

In Poshteh v Kensington and Chelsea RLBC (2017) UKSC 36 the appellant arrived in the UK in 2003 as a refugee from Iran, where she had been subject to imprisonment and torture. She gained indefinite leave to remain in 2009, the year in which she applied to the respondent council for accommodation as a homeless person. In November 2012 the respondent offered the appellant accommodation in Norland Road, London in a first floor, two-bedroom flat. The appellant’s concerns about the physical features of the property (including the small size of the windows) were first raised in correspondence of 29 November 2012, including a letter from the appellant’s therapist and her GP, and in a solicitors’ letter of 30 August 2013. The appellant ultimately refused this “final offer” of permanent accommodation at the property on the basis that it had features which reminded her of her prison in Iran and which would exacerbate her post-traumatic stress disorder, anxiety attacks and other conditions. Read more »

Those who have incurred financial obligations in reliance on a statute have a legitimate expectation that the statute would not be retrospectively repealed or otherwise invalidated to their detriment. Their right to recover costs constituted a right under Article 1/1 of the ECHR.  A newspaper publisher’s freedom of expression under Article 10 is also a fundamental principle.  However, in the circumstances of Times Newspapers v Flood [2017] UKSC 33 the Supreme Court held that the Art 1/1 rights prevailed.

In SXH v CPS [2017] UKSC 30 the Supreme Court held that, although ECHR Article 8 is broad, it is not so broad as to encompass everything done by a public authority which has the consequence of affecting someone’s private life in a more than minimal way. Neither the Strasbourg authorities nor domestic case law supports the contention that the institution of criminal proceedings, for a matter which is properly the subject of the criminal law and for which there is sufficient evidence, may be open to challenge on Article 8 grounds. It would be illogical; for if the matter is properly the subject of the criminal law, it is a matter for the processes of the criminal law. The criminalisation of conduct may amount to an interference with Article 8 rights. However, if it does not amount to an unjustifiable interference, then neither does the decision to prosecute for that conduct.

It was argued that Article 8 applied to the decision to prosecute for two reasons: it “targeted” conduct which was itself protected by Article 8, and its consequences were to interfere with the enjoyment of the appellant’s private life. It was submitted that the range of Article 8 is broad, that the threshold for it to apply is low, and that it is almost inevitable that the decisions of the CPS, as a public body, will impact on the private life of the defendant and so engage Article 8.  It was argued that anything done by a public body which has the consequence of affecting someone’s private life in a more than minimal way involves interference with respect for it within the meaning of Article 8.

The Supreme Court said that, broad as Article 8 undoubtedly is, the consequentialist argument advanced was far too broad. Lord Toulson took an example far removed from the present case. If a highway authority closes a road for roadworks, or introduces a partial closure, there may be a more than minimal effect on how long it takes residents to get to work, but that cannot be enough to make Article 8 applicable. “Such matters are part of the ordinary incidents of daily life in a community and involve no lack of respect for personal autonomy of the kind which Article 8 is designed to protect”.