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PL 11 - 13 ECHR to HRA (Need for HRA? (Time - enforcing rights took too…
PL 11 - 13 ECHR to HRA
Making
a claim
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Within
jurisdiction
of MS
Al-Skeini
Smith, Ellis & Albutt
Al Skeini - applicants = relatives of 6 Iraqu civilians killed by UK forces in Basra. HL - ECHR extends to abuses that happen in territories outside UK (in limited circs). 5 of claims failed - killed in course of general security ops. UK did not exercise sufficient control over Iraq at time. 6th - dies as result of injuries inflicted by UK forces inside unit controlled by UK forces.
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Key principles
Purposive interpretation
Tyrer v UK
Anthony Tyrer - 16 yrs 1972 - rights breached by a judicial birching order made agst him in Isle of Man. Curt ruled - contrary to Art 3. Court will look at why the law is there.
Proportionate
Soering
German national serving sentence in UK. Facing extradition to Virginia and possible capital punishment. Crt - violation of Art 3. Conditions of death row - would expose app to a real risk of treatment in breach of Art 3. (i.e. punishment itself not the issue.
Margin of Appreciation
Handyside
'The Little Red Schoolbook' - info re sex & illegal drug use. Seized and destroyed by autos - Obscene Publications Act. App claimed violation of freedom of expression. Crt - authorities were acting within margin of appreciation.
UK
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Dualist states - external law - no effect until it is part of our system. Signing treaty is not enough. Needed ECA 72; HRA 98.
Pre HRA
Pre 98. Malone v UK. Phone tapping. Action brought agst Metropolitan Police Commissioner - police tapping phone. Lost. UK court - do not recognise general right of privacy in UK. ECHR - right of privacy under Art 8. ECHR agreed. Led to a change in law in UK. Judges v important - interpreting law or enforcing in ECHR.
Brit cits going to ECHR since 1966. ECtHR judgments only persuasive. Not binding. British judges could not formally use ECHR. Could be used as follows: help in interpreting leg: Brind v SSHD Art 10 - re Gerry Adams/broadcasting. Help if granting injunction - judicial discretion: AG v Guardian Newspapers. Spectator case - Peter Wright Ex Senior Intelligence officer - sought to publish memoirs from Australia. Guardian wanted to report of publication of memoirs. Court considered Art 10 but made decision on basis of UK law.
Establish scope of common law: Derbyshire CC v The Times. Court considered Art 10.
All 3 judgments based on British law with a bit of help in interpretation from Europe. Influential but not formally or expressly used.
Dicey's influence - rights protected by courts. No higher system of law. HRA creates higher set of rules.
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Need for HRA?
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Lots of judgments agst UK - reflected fact that rights were not being adequately protected domestically
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