References: Times 06-Dec-2000, [2001] 2 WLR 817, [2003] 1 AC 681, [2001] 2 All ER 97, [2000] UKPC D 3, 2000 GWD 40-151, 11 BHRC 179, 2001 SLT 59, 2001 SC (PC) 43, (2001) 3 LGLR 24, [2001] RTR 121, [2001] UKHRR 333, [2001] HRLR 9, 2001 SCCR 62
Links: PC, Bailii
Coram: Bingham, Hope, Steyn, Clyde, Kirkwood LL
Ratio: The system under which the registered keeper of a vehicle was obliged to identify herself as the driver, and such admission was to be used subsequently as evidence against her on a charge of driving with excess alcohol, was not a breach of her right to a fair trial. The right not to give evidence against oneself was not an explicit, nor absolute right, and was subject to qualification. A balance was to be found between the right to a fair trial, and the need to respond to a serious problem in society: ‘while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly, within article 6 are not themselves absolute. Limited qualification of these rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for.’ The response was not disproportionate. An issue as to conformity with human rights law is a devolution issue under the Scotland Act. ‘The [European] court has also recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, the search for which balance has been described as inherent in the whole of the Convention.’
Lord Clyde said that it must be remembered that the Convention: ‘is dealing with the realities of life and it is not to be applied in ways which run counter to reason and common sense.’
Lord Bingham of Cornhill said: ‘The high incidence of death and injury on the roads caused by the misuse of motor vehicles is a very serious problem common to almost all developed societies. The need to address it in an effective way, for the benefit of the public, cannot be doubted. Among other ways in which democratic governments have sought to address it is by subjecting the use of motor vehicles to a regime of regulation and making provision for enforcement by identifying, prosecuting and punishing offending drivers. Materials laid before the Board, incomplete though they are, reveal different responses to the problem of enforcement. Under some legal systems (Spain, Belgium and France are examples) the registered owner of a vehicle is assumed to be the driver guilty of minor traffic infractions unless he shows that some other person was driving at the relevant time or establishes some other ground of exoneration. There being a clear public interest in enforcement of road traffic legislation the crucial question in the present case is whether section 172 represents a disproportionate response, or one that undermines a defendant’s right to a fair trial, if an admission of being the driver is relied on at trial.’
. . and ‘Judicial recognition and assertion of the human rights defined in the Convention is not a substitute for the processes of democratic government but a complement to them. While a national court does not accord the margin of appreciation recognised by the European court as a supra-national court, it will give weight to the decisions of a representative legislature and a democratic government within the discretionary area of judgment accorded to those bodies.’
Statutes: Road Traffic Act 1988 172, Scotland Act 1998, European Convention on Human Rights
Jurisdiction: Scotland
This case cites:
- Cited – Sporrong and Lonnroth v Sweden ECHR ((1983) 5 EHRR 35, 7152/75, 7151/75, Bailii, [1984] ECHR 18, Bailii, [1982] ECHR 5)
An interference with the peaceful enjoyment of possessions must strike a fair balance between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights. This balance is . . - Cited – Sheffield and Horsham v The United Kingdom ECHR (Times 04-Sep-98, 22985/93, 23390/94, (1998) 27 EHRR 163, Bailii, [1998] ECHR 69)
It is within a nation’s margin of appreciation to refuse to re-register birth details of people who had undergone sex-changes. Similarly it was not a human rights infringement not to allow post operative trans-sexuals to marry. However the court was . .
(This list may be incomplete)
This case is cited by:
- Cited – Motorola Credit Corporation v Uzan and others (No 2) CA (Bailii, [2003] EWCA Civ 752, Times 19-Jun-03, Gazette 28-Aug-03, [2004] 1 WLR 113)
World-wide freezing orders had been made under the 1982 Act. The defendants were members of a Turkish family with substantial business interests in the telecommunications industry. In breach of orders made in the US some defendants had sought to . . - Cited – Lynch v Director of Public Prosecutions Admn (Bailii, [2001] EWHC Admin 882)
The defendant challenged a conviction for having a locked bladed article in his possession in a public place, on the basis that it placed on him a burden of proof contrary to the convention.
Held: Salabiaku permits a reverse onus but requires . . - Cited – Attorney-General’s Reference (No 2 of 2001) HL (HL, [2003] UKHL 68, Bailii, Gazette 29-Jan-04, [2004] 2 AC 72, [2004] 1 All ER 1049, [2004] 15 BHRC 472, [2004] 1 Cr App R 25, [2004] 2 WLR 1, [2004] HRLR 16, [2004] UKHRR 193)
The house was asked whether it might be correct to stay criminal proceedings as an abuse where for delay. The defendants were prisoners in a prison riot in 1998. The case only came on for trial in 2001, when they submitted that the delay was an . . - Cited – Samaroo and Sezek v Secretary of State for the Home Department CA (Times 20-Jun-01, Bailii, Bailii, Gazette 09-Aug-01, Gazette 06-Sep-01, [2001] EWCA Civ 795, [2001] EWCA Civ 1139, [2002] 1 WLR 348, [2001] UKHRR 1150, [2002] INLR 55)
Two foreign nationals with leave to remain in this country committed serious crimes. The Secretary of State ordered their deportation.
Held: Where the deportation of a foreigner following a conviction here, would conflict with his human . . - Cited – A, B, C, D, E, F, G, H, Mahmoud Abu Rideh Jamal Ajouaou v Secretary of State for the Home Department CA (Times 05-Oct-04, Bailii, [2004] EWCA Civ 1123, [2005] 1 WLR 414)
The claimants had each been detained without trial for more than two years, being held as suspected terrorists. They were free leave to return to their own countries, but they feared for their lives if returned. They complained that the evidence . . - Cited – Roberts v Parole Board CA (Bailii, [2004] EWCA Civ 1031, Times 06-Sep-04, [2005] QB 410, [2008] 1 WLR 1950)
The discretionary life-prisoner faced a parole board. The Secretary of State wished to present evidence, but wanted the witness to be protected. The Parole Board appointed special counsel to hear the evidence on behalf of the prisoner on terms that . . - Cited – Al-Fayed and others v Commissioner of Police of the Metropolis and others CA (Bailii, [2004] EWCA Civ 1579)
The appellants appealed from dismissal of their claims for wrongful imprisonment by the respondent. Each had attended at a police station for interview on allegations of theft. They had been arrested and held pending interview and then released. Mr . . - Cited – Regina v Immigration Officer at Prague Airport and another, ex parte European Roma Rights Centre and others HL ([2005] 2 AC 1, House of Lords, [2004] UKHL 55, Bailii, Times 10-Dec-04, [2005] 2 WLR 1, [2005] 1 All ER 527, [2005] Imm AR 100, 18 BHRC 1, [2005] IRLR 115, [2005] UKHRR 530, [2005] INLR 182, [2005] HRLR 4)
The appellants complained that the system set up by the respondent where Home Office officers were placed in Prague airport to pre-vet applicants for asylum from Romania were dsicriminatory in that substantially more gypsies were refused entry than . . - Cited – Hoxha and Another v Secretary of State for the Home Department HL (Bailii, [2005] UKHL 19, Times 11-Mar-05, House of Lords, [2005] 1 WLR 1063)
The claimants sought to maintain their claims for asylum. They had fled persecution, but before their claims for asylum were determined conditions in their home country changed so that they could no longer be said to have a well founded fear of . . - Cited – Mawdesley and Yorke v Chief Constable of Cheshire Constabulary and Another Admn (Bailii, [2003] EWHC 1586 (Admin), Times 11-Sep-03)
The two appellant drivers had been sent forms requiring them to identify the drivers of vehicles identified by speed cameras. They had replied providing the requested information, but the forms were unsigned. They resisted use of the forms as . . - Cited – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL (House of Lords, Times 21-Oct-02, Bailii, [2002] UKHL 39, [2002] 3 WLR 1313, [2003] 1 AC 787, [2002] 4 All ER 593, [2003] BLGR 57, [2002] 13 BHRC 482, (2002) 166 JPN 850, (2002) 166 JP 657, [2003] HLR 17, [2002] UKHRR 1286, [2003] 1 Cr App R 27)
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . . - Cited – N v Secretary of State for the Home Department HL (Bailii, [2005] UKHL 31, House of Lords, [2005] 2 AC 296, [2005] 2 WLR 1124, [2005] INLR 388, (2005) 84 BMLR 126, [2005] 4 All ER 1017, [2005] HRLR 22, [2005] Imm AR 353, [2005] UKHRR 862)
The applicant had sought asylum here, but her application was rejected. She was suffering advanced HIV/AIDS. With continued proper treatment she would survive several years. If returned to Uganda she would not receive that treatment and would not . . - Cited – Brooks v Commissioner of Police for the Metropolis and others HL (Bailii, [2005] UKHL 24, Times 26-Apr-05, House of Lords, [2005] 1 WLR 1495, [2005] 2 All ER 489, [2005] Po LR 157)
The claimant was with Stephen Lawrence when they were both attacked and Mr Lawrence killed. He claimed damages for the negligent way the police had dealt with his case, and particularly said that they had failed to assess him as a victim of crime, . . - Cited – Adam, Regina (on the Application of) v Secretary of State for the Home Department; Limbuela v Same; Tesema v Same HL (Bailii, [2005] UKHL 66, Times 04-Nov-05, House of Lords, [2005] 3 WLR 1014, [2007] 1 All ER 951, [2006] 1 AC 396)
The applicants had each entered the UK with a view to seeking asylum, but having failed to seek asylum immediately, they had been refused any assistance, were not allowed to work and so had been left destitute. Each had claimed asylum on the day . . - Cited – Hammond, Regina (on the Application of) v Secretary of State for the Home Department HL (Bailii, [2005] UKHL 69, , House of Lords)
The claimants had been convicted of murder, but their tariffs had not yet been set when the 2003 Act came into effect. They said that the procedure under which their sentence tarriffs were set were not compliant with their human rights in that the . . - Cited – Grant v The Queen PC (Bailii, [2006] UKPC 2, 30 of 2005, [2006] Crim LR 837,, [2007] 1 AC 1, 20 BHRC 243, [2006] 2 WLR 835)
(Jamaica) The defendant appealed his conviction for murder saying that the admission of an unsworn statement by one witness and the non-admission of another similar statement who did not either attend court was unconstitutional. He shot the victim . . - Cited – C Plc and W v P and Secretary of State for the Home Office and the Attorney General ChD (Bailii, [2006] EWHC 1226 (Ch), Times 08-Jun-06, [2007] 3 WLR 437)
The claimant sought damages from the first defendant for breach of copyright. An ex parte search order had been executed, with the defendant asserting his privilege against self-incrimination. As computer disks were examined, potentially unlawful . . - Cited – C Plc v P and Attorney General Intervening CA ([2008] Ch 1, [2007] 3 WLR 437, Bailii, [2007] EWCA Civ 493, Times 28-May-07, [2007] 3 All ER 1034)
The respondent had been subject to a civil search, which revealed the existence of obscene images of children on his computer. He appealed against refusal of an order that the evidence should not be passed to the police as evidence. He said that the . . - Cited – Gentle, Regina (on the Application of) and Another v The Prime Minister and Another HL (Bailii, [2008] UKHL 20, Times 10-Apr-08, [2008] 2 WLR 879, HL, [2008] 1 AC 1356, [2008] UKHRR 822, [2008] HRLR 27, [2008] 3 All ER 1)
The appellants were mothers of two servicemen who had died whilst on active service in Iraq. They appealed refusal to grant a public inquiry. There had already been coroners inquests. They said that Article 2 had been infringed.
Held: The . . - Cited – Animal Defenders International, Regina (on the Application of) v Secretary of State for Culture, Media and Sport HL (Bailii, [2008] UKHL 15, [2008] 2 WLR 781, HL, [2008] UKHRR 477, [2008] EMLR 8, 24 BHRC 217, [2008] 1 AC 1312, [2008] HRLR 25, [2008] 3 All ER 193)
The applicant, a non-profit company who campaigned against animal cruelty, sought a declaration of incompatibility for section 321(2) of the 2003 Act, which prevented adverts with political purposes, as an unjustified restraint on the right of . . - Cited – Regina v S and A CACD (Bailii, [2008] EWCA Crim 2177, [2009] 1 All ER 716)
The defendant appealed against his conviction under the 2000 Act for failing to disclose the key used to encrypt a computer file. He was subject to a control order as a suspected terrorist. As the police raided his house, they found the key had been . . - Cited – Austin and Another v Commissioner of Police of the Metropolis HL (Bailii, [2009] UKHL 5, HL, Times, [2009] 1 AC 564, [2009] 2 WLR 372, [2009] UKHRR 581, [2009] HRLR 16, [2009] 3 All ER 455)
The claimants had been present during a demonstration policed by the respondent. They appealed against dismissal of their claims for false imprisonment having been prevented from leaving Oxford Circus for over seven hours. The claimants appealed . . - Cited – A v Essex County Council SC (Bailii, [2010] UKSC 33, [2010] WLR (D) 184, WLRD, UKSC 2009/0065, SC, SC Summary, Bailii Summary, [2010] 4 All ER 199, [2010] PTSR 1332, [2010] 3 WLR 509, (2010) 13 CCL Rep 314)
The claimant, a severely disabled child sought damages, saying that for well over a year, the local authority had made no provision for his education.
Held: His appeal against the striking out of his action failed. The correct approach had . . - Cited – Webster v Regina CACD (Bailii, [2010] EWCA Crim 2819)
The defendant appealed against his conviction under the 1889 Act for making a corrupt gift to a local government officer. He said that the 1916 Act placed an unfair burden on him to prove that the gift was not corruptly given.
Held: The appeal . . - Cited – Home Office v Tariq SC (Bailii, [2011] UKSC 35, Bailii Summary, SC, SC Summary, UKSC 2010/0106, [2011] UKHRR 1060, [2012] 1 AC 452, [2011] 3 WLR 322, [2012] 1 All ER 58, [2012] 1 CMLR 2, [2011] IRLR 843, [2011] HRLR 37, [2011] ICR 938)
The claimant pursued Employment Tribunal proceedings against the Immigration Service when his security clearance was withdrawn. The Tribunal allowed the respondent to use a closed material procedure under which it was provided with evidence unseen . . - Cited – Her Majesty’s Advocate v P SC (Bailii, [2011] UKSC 44, Bailii Summary, 2012 SC (UKSC) 108)
(Scotland) The appellant had been interviewed by police without being offered access to a solicitor. He complained that the interview and information obtained only through it had been used to found the prosecution.
Held: The admission of the . . - Cited – Ambrose v Harris, Procurator Fiscal, Oban, etc SC (Bailii, [2011] UKSC 43, Bailii Summary, SC Summary, SC, UKSC 2011/0101, 2011 SLT 1005, [2011] 1 WLR 2435)
(Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . . - Cited – ST Eritrea, Regina (on The Application of) v Secretary of State for The Home Department SC (Bailii, [2012] UKSC 12, Bailii Summary, SC, SC Summary)
The Tribunal had confirmed the appellant’s refugee status, but the respondent had ordered nevertheless that she be returned. The judge’s order setting aside that decision had been overturned in the Court of Appeal.
Held: The claimant’s appeal . . - Cited – Atkinson v Director of Public Prosecutions Admn (Bailii, [2011] EWHC 3363 (Admin))
The appellant’s motor scooter had been identified speeding. She replied to a notice to identify the driver by saying that she did not know. She now said that she had been selling it and that a potential buyer had taken it for a test drive, but that . . - Cited – Smith and Others v The Ministry of Defence SC (Bailii, [2013] UKSC 41, [2013] WLR(D) 239, Bailii Summary, [2014] AC 52, [2013] 4 All ER 794, [2014] 1 AC 52, [2013] 3 WLR 69, [2013] HRLR 27, [2014] PIQR P2, SC, SC Summary, WLRD)
The claimants were PRs of men who had died or were severely injured on active duty in Iraq being variously fired at by mistake by other coalition forces, or dying in vehicles attacked by roadside bombs. Appeals were heard against a finding that the . . - Cited – Coventry and Others v Lawrence and Another SC (Bailii, [2015] UKSC 50, [2015] 1 WLR 3485, [2015] 4 Costs LO 507, [2015] WLR(D) 332, [2015] HRLR 16, WLRD, Bailii Summary, UKSC 2012/0076, SC 50, SC 2014 46/13, SC 50 Summ, SC 2014 46/13 Summ)
The appellants challenged the compatibility with the European Convention on Human Rights of the system for recovery of costs in civil litigation in England and Wales following the passing of the Access to Justice Act 1999. The parties had been . . - Cited – Regina v Kansal (2) HL (Times 04-Dec-01, House of Lords, Bailii, Gazette 17-Jan-02, [2001] UKHL 62, [2001] 3 WLR 1562, [2002] 2 AC 69, [2002] 1 All ER 257, [2002] HRLR 9, [2002] BPIR 370, [2002] 1 Cr App R 36, [2002] UKHRR 169)
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . . - Cited – Kiarie and Byndloss, Regina (on The Applications of) v Secretary of State for The Home Department SC (UKSC 2016/0011, Bailii, [2017] UKSC 42, Bailii Sumary, SC, SC Summary, SC Video Summary, SC 15/2/17am video, SC 15/2/17pm video, SC 16/2/17am video, SC 16/2/17pm video, [2017] HRLR 7, [2017] 4 All ER 811, [2017] 1 WLR 2380, [2017] WLR(D) 400, WLRD)
The court considered a challenge to the rules governing ‘out of country’ appeals against immigration decisions. They had in each case convictions leading to prison terms for serious drugs related offences.
Held: The appeals were allowed, and . .
(This list may be incomplete)
Leading Case
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