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StudentLaw
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2000 YEARBOOK
ADMINISTRATIVE LAW 2 EQUITY AND TRUSTS 106

CIVIL LIBERTIES 8 EUROPEAN COMMUNITY LAW 118

CIVIL LITIGATION 23 EVIDENCE 126

COMMERCIAL LAW 30 FAMILY LAW 133

CONSTITUTIONAL LAW 36 INTELLECTUAL PROPERTY LAW 140

CONTRACT LAW 49 INTERNATIONAL TRADE LAW 147

CRIMINAL LAW 61 JURISPRUDENCE 159

CRIMINAL LITIGATION 70 LAND LAW 169

EMPLOYMENT LAW 79 TORT 177

ENGLISH LEGAL SYSTEM 85 TABLE OF ARTICLES 187

ENVIRONMENTAL LAW 98 TABLE OF CASES 197

© 2001 Cavendish Publishing Limited

All rights reserved.

No part of this publication may be
reproduced or transmitted in any form or by any means
without the written permission of the publisher.

Published by
Cavendish Publishing Limited
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Printed and bound in Great Britain

ISBN 1 85941 593 8

STUDENT LAW REVIEW • 2000 YEARBOOK

A D M I N I S T R AT I V E L AW

Case notes
Lustig-Prean and Beckett v The United Kingdom . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
Locabail (UK) Ltd v Bayfield Properties Ltd and Other Applications . . . . . . . . . . . . .3
T v United Kingdom; V v United Kingdom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
R v Secretary of State for the Home Department ex p Amnesty International
and Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
R v Secretary of State for the Home Department ex p Manning and Another . . . . . .6
R v Secretary of State for the Home Department ex p Hindley . . . . . . . . . . . . . . . . . .6

2 • STUDENT LAW REVIEW • 2000 YEARBOOK

 A D M I N I S T R AT I V E L AW

constituted a direct interference with the right to respect for their private

Case notes lives within Art 8, para 1. Such interference could, therefore, be justified
only if it was ‘in accordance with the law’ and ‘necessary in a
democratic society’ within Art 8, para 2. The Court found that the

by David Stott, Deputy Dean, restriction was ‘in accordance with the law’. It was not, however,
‘necessary in a democratic society’, the hallmarks of which included
Anglia Law School, Anglia pluralism, tolerance and broadmindedness. Although the State had a
Polytechnic University margin of appreciation in making the initial assessment of necessity,
particularly serious reasons by way of justification were required where
the restriction concerned a most intimate aspect of an individual’s
Lustig-Prean and Beckett v The United Kingdom Applications Nos private life. In the instant case, the interferences had been especially
31417/96 and 32377/96, 27 September 1999, ECHR grave because (i) the investigation process was of an exceptionally
intrusive character; (ii) the administrative discharge of the applicants
had a profound effect on their careers and prospects; and (iii) the
Facts absolute and general character of the policy was striking – it resulted in
The applicants had been discharged from the armed forces because an immediate discharge from the armed forces irrespective of the
they were homosexual. Both had exemplary service records. They individual’s conduct or service record. The particularly convincing and
complained that this constituted a violation of Art 8 of the European weighty reasons to justify such interferences did not exist. The question
Convention on Human Rights (the right to respect for private and of the ‘just satisfaction’ to be awarded to the applicants under Art 41 of
family life, home and correspondence) taken alone and in conjunction the Convention was deferred.
with Art 14 (Convention rights and freedoms are to be secured without
discrimination). The applicants, along with two others, had failed in Comment
applications for judicial review to have the decisions to discharge them The case demonstrates the significant difference of degree between the
set aside as being irrational (R v Ministry of Defence ex p Smith; R v test of Wednesbury unreasonableness/CCSU irrationality applied in
Admiralty Board of the Defence Council ex p Lustig-Prean [1995] 4 All national judicial review applications and the principles of necessity in a
ER 427). In the High Court, Simon Brown LJ was sympathetic to the democratic society – in particular, the principle of proportionality –
applicants but concluded that: applied in European Convention case law. It serves as an illustration of
... [the courts] owe a duty ... to remain within their the potential impact of the Human Rights Act 1998 on judicial review
constitutional bounds and not trespass beyond them. applications in the field of human rights once the Act enters into force
Only if it were plain beyond sensible argument that no in October 2000.
conceivable damage could be done to the armed
services as a fighting unit would it be appropriate for this
Locabail (UK) Ltd v Bayfield Properties Ltd and Other Applications,
Court now to remove the issue entirely from the hands of
Transcript, 17 November 1999
both the military and of the government.
Applying the Wednesbury principles, a reasonable minister could, on
the material before him, have reasonably made the decision reached.
Facts
Had the Convention been part of English law, however, and the judges Five applications which argued for the disqualification of judges on
entitled to ask whether the policy answered a pressing social need and grounds of bias - either that the judge was automatically disqualified
was proportionate to the legitimate aim to be achieved (the tests to because bias was to be presumed on the basis that the judge had an
determine whether a restriction on a right is ‘necessary in a democratic interest in the outcome of the case or, alternatively, that there was a real
society’ and therefore permissible under Convention jurisprudence) danger of bias – were heard together. In the first two applications,
then the primary judgment would have been for the court. The Court of where the applicant’s claims to equitable interests in two properties
Appeal dismissed the applicants’ appeal. Although Sir Thomas owned by her husband had been dismissed, the deputy judge of the
Bingham noted that ‘the more substantial the interference with human High Court was a partner in a firm of solicitors which had acted for a
rights, the more the court will require by way of justification’, the court company which had claims against the applicant’s husband and against
was still not prepared to hold that the decision was unreasonable in the a company controlled by the applicant’s husband. In the third
sense that it was: ‘... beyond the range of responses open to a application, the recorder, who had awarded substantial damages
reasonable decision maker’. Further, ‘the fact that a decision maker against the defendant pursuant to a traffic accident, had written articles
failed to take account of Convention obligations when exercising an which allegedly indicated that he could have been influenced by an
administrative discretion is not of itself a ground for impugning the unconscious but settled prejudice against the insurers who were the
exercise of that discretion’. real defendants. In the fourth application, the applicant’s complaint of
sexual harassment and race discrimination at the tax office of the Inland
Revenue where she had worked between 1985 and 1994 had been
Held
dismissed by the industrial tribunal. The tribunal chairman had worked
The European Court of Human Rights held that the investigations by for the Inland Revenue from 1958 to 1961 in a junior position. In the
the military police into the applicants’ homosexuality and their fifth application, a High Court judge had refused an extension of time in
consequent discharge on the sole ground of their sexual orientation which to enter and serve on the Bristol Betting and Gaming Licensing

3 • STUDENT LAW REVIEW • 2000 YEARBOOK

A D M I N I S T R AT I V E L AW

Committee an application for judicial review of its decision to extend issue to be decided by the judge, he had in a previous case rejected the
the permits of Corals, the bookmakers. The judge was a director of evidence of that person in such outspoken terms as to throw doubt on
companies which owned properties of which Corals were the tenants. his ability to approach such person’s evidence with an open mind on
any later occasion; or if, on any question at issue in the proceedings
Held before him, the judge had expressed views in such extreme and
unbalanced terms as to throw doubt on his ability to try the issue with
The third application was granted on the basis that there was a real
an objective judicial mind; or if, for any other reason, there were real
danger of bias. The other applications were refused.
grounds for doubting the ability of the judge to ignore extraneous
considerations, prejudices and predilections and bring an objective
Comment judgment to bear on the issues before him.
The decision of the House of Lords in R v Bow Street Metropolitan Judges should not yield to ‘tenuous or frivolous’ objections.
Stipendiary Magistrate ex p Pinochet Ugarte (No 2) ([1999] 2 WLR 272) Although it was important for justice to be seen to be done, it was
that the rule of automatic disqualification extended to a limited class of equally important not to encourage parties to believe that by seeking
non-financial interests made further such challenges inevitable. Prior to the disqualification of a judge, they would have their case tried by
Pinochet, it was established that the automatic disqualification rule someone more likely to decide in their favour.
applied where the judge had a pecuniary or proprietary interest in the
outcome. Pinochet applied the principle of automatic disqualification
T v United Kingdom; V v United Kingdom Applications 24724/94
to a situation where a judge was associated with the promotion of a
and 24888/94 (1999) European Court of Human Rights
particular cause, holding that Lord Hoffmann was automatically
disqualified because of his association with Amnesty International. The
House of Lords had made it very clear, however, that the facts of that Facts
case were exceptional in that (i) Amnesty International was a party to The applicants had been convicted of the murder of two year old James
the appeal; (ii) Amnesty International had been joined to argue for a Bulger in 1993. At the time of the commission of the offence they were
particular result; (iii) Lord Hoffmann was a director of a charity closely 10 years old. The accused boys were tried before a judge and jury at
allied to Amnesty International and sharing Amnesty International’s Preston Crown Court. They were subjected to the formality of an adult
objects. Lord Browne-Wilkinson had suggested, however, that ‘there criminal trial, subject to certain modifications, for example, the boys
may well be other exceptional cases’. The Court of Appeal in Locabail were seated next to social workers with their parents nearby, the
regarded any extension of the principle of automatic disqualification as hearing times were shortened to reflect the school day and a 10 minute
undesirable, unless ‘plainly required to give effect to the important interval was taken each hour. Following their conviction, the boys were
underlying principles upon which the rule is based’. sentenced to be detained at Her Majesty’s pleasure (as required under s
The ‘real danger’ test was established by the House of Lords in 53(1) of the Children and Young Persons Act 1933 for persons under
R v Gough ([1993] AC 646), where the House had attempted to resolve the age of 18 convicted of murder). The trial judge recommended that a
the divergence between the previous tests of reasonable suspicion and period of eight years be served to satisfy the requirements of retribution
real likelihood. Lord Goff had rejected the test of reasonable suspicion and deterrence before the boys became eligible to be considered for
and explained the real danger test in terms of ‘possibility rather than parole (the ‘tariff’). Had the defendants been adults then the judge
probability of bias’. stated that he would have set the tariff at 18 years. The Lord Chief
The Court of Appeal in Locabail gives some guidance on the Justice recommended a tariff of 10 years. The final decision was,
application of the real danger test. The court was at pains to emphasise however, by statute that of the Home Secretary. He set the tariff at 15
the objective nature of the test and that the onus of establishing it was years. In so doing, the Home Secretary took into account public
on the applicant. Although the court considered that it would be futile opinion as manifested in letters and petitions and a poll taken by the
to attempt to list the factors which may give rise to a real danger of bias, Sun newspaper. In national judicial review proceedings, the tariff set by
it proceeded to give a comprehensive list of examples. The court could the Home Secretary was declared unlawful (see R v Secretary of State
not conceive of circumstances in which an objection could be soundly for the Home Department ex p Venables and Thompson [1997] 3 All
based on the religion, ethnic or national origin, gender, age, class, ER 97). The Home Secretary had treated as irrelevant the progress and
means or sexual orientation of the judge; on the judge’s social, development the boys might make while detained; also, in exercising
educational, service or employment background or history, nor that of such a sentencing power, the Home Secretary must be detached from
any member of the judge’s family; on previous political association or public opinion. No decision on the applicants’ new tariff had been
membership of social, sporting or charitable bodies or Masonic taken at the time of the judgment of the European Court of Human
institutions; on previous judicial decisions or extra-curricular utterances; Rights.
on previous receipt of instructions to act for or against any party, The applicants complained of violations of the European
solicitor or advocate engaged in a case before him or membership of Convention on Human Rights in that (i) in view of their young age, their
the same Inn, circuit, local Law Society or chambers. By contrast, a real trial in public in an adult court and the punitive nature of their
danger of bias might well be thought to arise if there were personal sentences amounted to inhuman or degrading treatment or punishment
friendship or animosity between the judge and any member of the in contravention of Art 3 of the Convention; (ii) they had been denied a
public involved in the case or if the judge were closely acquainted with fair trial in breach of Art 6; (iii) they had suffered discrimination in
any member of the public involved in the case, particularly if the breach of Art 14 in that a child aged less than 10 at the time of the
credibility of that individual could be significant in the decision of the commission of the offence would not have been held criminally
case; or if, in a case where the credibility of any individual were an responsible; (iv) the sentence imposed of detention during Her

4 • STUDENT LAW REVIEW • 2000 YEARBOOK

 A D M I N I S T R AT I V E L AW

Majesty’s pleasure amounted to a breach of their right to liberty under (v) There had been no violation of Art 3 in respect of the
Art 5; (v) the fact that a government minister, rather than a judge, was applicants’ sentences. The punitive element inherent in the tariff
responsible for setting the tariff violated their rights under Art 6; and (vi) approach did not give rise to a breach of Art 3. Nor did the
they had not had the opportunity to have the continuing lawfulness of Convention prohibit states from subjecting a child or young
their detention examined by a judicial body such as the Parole Board in person convicted of a serious crime to an indeterminate
breach of Art 5, para 4. The European Commission declared the sentence allowing for the offender’s continued detention or
application admissible and expressed an opinion that (i) there had been recall following release where necessary for the protection of
no violation of Art 3 in respect of the applicants’ trial (17 votes to two); the public. The applicants had not yet reached the stage in their
(ii) there had been a violation of Art 6 in respect of the applicants’ trial sentences where they were able to have the continued
(14 votes to 5); (iii) no separate issue arose under Art 14 in respect of lawfulness of their detention reviewed with regard to the
the applicants’ trial (15 votes to four); (iv) there had been no violation of question of dangerousness. It could not be excluded, however,
Arts 3 and 5 in respect of the applicants’ sentences (17 votes to two); (v) that an unjustifiable and persistent failure to fix a tariff, leaving
there had been a violation of Art 6 in respect of fixing the applicants’ the detainee in uncertainty over many years as to his future,
sentences (18 votes to one); and (vi) there had been a violation of Art 5, might give rise to an issue under Art 3.
para 4 (18 votes to 1). The case was referred to the European Court by (vi) There had been no violation of Art 5 in imposing a sentence of
the United Kingdom Government and by the Commission. detention during Her Majesty’s pleasure on all young offenders
convicted of murder, irrespective of their individual
Held circumstances and needs.
However:
On issues relating to the trial:
(vii) There had been a violation of the protection afforded by Art 6 to
(i) The attribution of criminal responsibility to the applicants did
‘a fair … hearing … by an independent and impartial tribunal’.
not give rise to a breach of Art 3. There was no commonly
The fixing of the tariff amounted to a sentencing exercise and
accepted minimum age for the imposition of criminal
the Home Secretary, who set the applicants’ tariff, was clearly
responsibility in Europe, although most Member States had an
not independent of the executive.
age limit higher than that in the United Kingdom. No clear
(viii) There had been a violation of Art 5, para 4 in that the applicants
tendency could be ascertained from examination of the relevant
had been deprived since their convictions of the opportunity to
international instruments. In the absence of a clear common
have the lawfulness of their detention reviewed by a judicial
standard, the age of 10 could not be said to differ
body. Given the sentence of detention during Her Majesty’s
disproportionately from the age limit followed by other
pleasure was indeterminate and that the tariff was set by the
European States.
Home Secretary and not the trial judge, it could not be said that
(ii) The fact that the criminal proceedings took place over three
the supervision required by Art 5, para 4 was incorporated in
weeks in public in an adult Crown Court with attendant
the trial court’s sentence. Further, the failure to set a new tariff
formality and that, after conviction, the applicants’ names were
meant that the applicants’ entitlement to access to a tribunal for
permitted to be published did not amount to a violation of Art 3.
periodic review of the continuing lawfulness of their detention
Whilst the public nature of the proceedings may have
remained inchoate.
exacerbated feelings of guilt, distress, anguish and fear, the trial
process had not caused, to a significant degree, suffering
beyond that which would inevitably have been engendered.
Comment
However: The decision of the European Court of Human Rights brings the
(iii) The applicants had been denied a fair trial in accordance with effective sentencing powers of the Home Secretary once again into the
Art 6 in that they were unable to participate effectively in the spotlight. Senior members of the judiciary have in recent years
criminal proceedings against them. It was essential that a child expressed concern over the increasing powers – normally regarded as
charged with an offence be dealt with in a manner which took judicial – being placed by statute into the hands of ministers and over
full account of his age, level of maturity and intellectual and government otherwise interfering in sentencing matters previously the
emotional capacities, and that steps were taken to promote his subject of judicial discretion, as evidenced in particular by the Crime
ability to understand and participate in the proceedings. It was (Sentences) Act 1997. The House of Lords in R v Secretary of State for
necessary to conduct the proceedings in such a way as to the Home Department ex p Venables and Thompson (above) itself
reduce as far as possible feelings of intimidation and inhibition. expressed concerns informed by constitutional principle. Lord Steyn
The formality and ritual of the Crown Court must at times have noted that:
seemed incomprehensible and intimidating. Further, there was In fixing a tariff, the Home Secretary is carrying out,
some evidence that the post-traumatic stress disorder suffered contrary to the constitutional principle of the separation
by T, combined with the lack of any therapeutic work since the of powers between the executive and the judiciary, a
offence, had limited his ability to instruct his lawyers and to classic judicial function … the power to fix a tariff is …
testify adequately in his own defence. It was not sufficient to equivalent to a judge’s sentencing power.
fulfil the requirements of Art 6 that skilled and experienced It is suggested that the judiciary is right to have concerns. There is an
lawyers had represented the applicants. uneasy tension in politicians having such powers conferred upon them.
(iv) No separate issue arose under Art 14. Justice should not be meted out in order to respond to a popular desire
On issues relating to sentence: for revenge. Individual rights are not to be sacrificed at the altar of the

5 • STUDENT LAW REVIEW • 2000 YEARBOOK

A D M I N I S T R AT I V E L AW

politician’s desire for electoral survival. The potential for political – and Held
politically motivated – intervention in ‘justice’ is further evidenced by
the Home Secretary’s powers in extradition cases, sic Pinochet. The The application was allowed and the decision not to prosecute was
judges are sensitive to incursions into their domain. They have not, to quashed. Lord Bingham considered that the general responsibility for
date, had in their armoury a weapon to challenge legislation that the institution and conduct of prosecutions was entrusted to the
confers wide judicial powers upon the executive. The Human Rights Director of Public Prosecutions. It was, however, clear that a decision
Act 1998, once in force, may, at least in the limited power to issue a not to prosecute was susceptible to judicial review, albeit that such
declaration of incompatibility, be that weapon. power was to be exercised sparingly. The standard of review should not
be set too high, since judicial review was the only means by which a
citizen could seek redress against such a decision. There was no
R v Secretary of State for the Home Department ex p Amnesty general duty on the DPP to give reasons, but the right to life was the
International and Others (2000) Lawtel, 31 January; R v Secretary most fundamental of all human rights. It was at the forefront of the
of State for the Home Department ex p Amnesty International and European Convention on Human Rights and the power to derogate
Others (2000) Lawtel, 15 February (under Art 15 of the Convention) from it was very limited. In the
absence of compelling reasons to the contrary, the DPP would be
In each of these applications, the applicants, including the state of expected to give reasons where the decision related to a death in
Belgium, sought the disclosure of the medical report on the basis of custody and an inquest jury had returned a verdict of unlawful killing.
which the Home Secretary had indicated that he was minded to Further, the caseworker had not addressed and resolved specific matters
exercise his discretion under s 12 of the Extradition Act 1989 not to which the officer would have to overcome to defeat the prima facie
extradite Senator Pinochet to Spain to face charges of murder and case against him and an objective appraisal of the prospects of a
torture. In the first application, Maurice Kay J concluded that there was successful prosecution required such matters to be taken into account.
no arguable case. In the second application, the applicants restricted
their request to asking that the medical report be disclosed to the Comment
requesting states under conditions of strict confidentiality so that they
The giving of reasons for decisions is to be regarded as a characteristic
might comment upon its conclusions. Simon Brown LJ, Latham J and
of good administration, which the courts try to ensure via the exercise
Dyson J held that fairness required disclosure. The public interest in
of their powers of judicial review. In certain circumstances, for
making the further limited disclosure sought outweighed the remaining
example, confidentiality, the public interest will override this aspect of
confidentiality in the report.
good administration. This should, however, be the exception. Citizens
This was the final chapter in the Pinochet episode staged in the
feel aggrieved when the administration gives decisions against them.
United Kingdom. Pinochet has now flown the coop.
They rightly feel an increased sense of grievance when the reasons for
such adverse decisions are not given. In recent years the courts have
R v Secretary of State for the Home Department ex p Manning and moved closer to a position of a universal requirement to give reasons
Another [2000] 3 WLR 463 for decisions and, in this instance, used the human rights weapon in
their battle to ensure good administration.

Facts
R v Secretary of State for the Home Department ex p Hindley
The applicants’ brother had died of asphyxia while on remand in
[2000] 2 All ER 385, HL
custody for an offence of violence. His death followed a search for
drugs undertaken by two prison officers. During the search, the
deceased had, without complaint, removed all clothing below the Facts
waist. On being told by one of the officers, probably without In 1966, the applicant, along with Ian Brady, was convicted of the
justification, to squat so as to enable an intimate body search to be murder of two children and received a mandatory life sentence. In
carried out, he had refused and, it seemed, launched an attack on the 1983, Leon Brittan outlined his policy as to the release of mandatory
other prison officer. At a subsequent inquest, the evidence indicated life sentence prisoners in the exercise of his discretion under the
that the asphyxia was due to the way in which the deceased’s head had Criminal Justice Act 1967. Child murderers could normally expect to
been held by a particular prison officer trying to restrain him. The jury serve a tariff period of at least 20 years to satisfy the requirements of
returned a verdict of unlawful killing. A senior caseworker in the Crown retribution and deterrence. In 1985, the applicant’s tariff was fixed
Prosecution Service concluded that there was a prima facie case against provisionally at 30 years. In 1987, Hindley confessed to complicity in
the prison officer but no realistic prospect of the prosecution being able the murders of three other children. In February 1997, Michael Howard
to establish that excessive force had been used deliberately rather than concluded that a ‘whole life’ tariff was appropriate to Hindley and, in
in an attempt to impose proper restraint. The applicants’ request for full November 1997, Jack Straw stated that he saw no reason to depart from
reasons for the decision not to prosecute was denied and they sought that decision, though he was prepared to listen to future
judicial review. Following the grant of permission to apply for judicial representations. The applicant appealed from the decision of the Court
review, the caseworker’s review note setting out his full reasoning was of Appeal upholding the Divisional Court’s refusal of an application for
served on the applicants. The grounds of the application were (i) that no judicial review for (i) a declaration that the policy of imposing whole
adequate reasons for the decision were given; (ii) that the reasons which life tariffs was in principle unlawful; and (ii) an order to quash the
were given did not reflect the true basis of the decision; and (iii) that the decisions to impose and maintain the applicant’s whole life tariff on the
true reasons, now disclosed, were unsustainable. grounds that it was an unlawful increase on the initial 30 year term and

6 • STUDENT LAW REVIEW • 2000 YEARBOOK

 A D M I N I S T R AT I V E L AW

disproportionate given her age at the time of the murders and the length transcript, 3 April; (2000) The Times, 28 April, the Court of Appeal
of time already spent in custody. expressed the view that the Convention was being argued too
frequently in challenges to the admission of identification evidence. In
Held the words of Swinton Thomas LJ delivering the judgment of the court:
The European Convention … was promulgated following
The appeal was dismissed. There was no reason why a whole life tariff
the horrors and the deprivations of human rights …
should not be imposed for the purposes of punishment where the crime
between 1939 and 1945 … The Convention has been
was sufficiently heinous. The language of s 1(1) of the Murder
incorporated into our law by the Human Rights Act 1998
(Abolition of Death Penalty) Act 1965 read with s 27 of the Prison Act
… The purpose underlying the Act is to protect citizens
1952 yielded no support for an argument to the contrary. The Home
from a true abuse of human rights. If, as it seems to us has
Secretary’s policy, which provided for life-long incarceration but which
happened in this case, it is utilised by lawyers to jump on
also provided for periodic review, was not an unlawful fetter on his
a bandwagon and to attempt to suggest that there has
discretion. Nor was the imposition of a whole life tariff in the particular
been a breach of the Act or of the Convention when
circumstances of Hindley’s case unlawful. The 1985 decision was
either it is quite plain that there has not or alternatively
expressed to be provisional and had not been communicated to
the matter is amply covered by domestic law, then not
Hindley until 1994 when she was also told that it had been made a
only the lawyers, but the Act itself … will be brought into
whole life tariff. Further, Leon Brittan’s decision had been made in
disrepute.
ignorance of material facts – Hindley’s complicity in the other three
In R v Secretary of State for the Home Department ex p Gavin (2000)
murders.
Lawtel, 31 July, Forbes J rejected an argument based, inter alia, upon
the provisions of the European Convention. The prisoner applicant
Comment
argued Arts 8 (the right to a family life) and 12 (the right to found a
This is unlikely to mark the end of the legal road for Myra Hindley’s bid family) in an attempt to obtain judicial review of a decision not to
for freedom. She might choose to take her case to the European Court facilitate the artificial insemination of his wife. In R v Secretary of State
of Human Rights or await the implementation of the Human Rights Act for the Environment, Transport and the Regions ex p Challenger and
in October before mounting a further challenge in the domestic courts. Another (2000) Lawtel, 15 June, Harrison J refused to allow the right to
She may take advantage of the decision in V v United Kingdom and T v a fair hearing contained in Art 6 of the Convention and s 6 of the
United Kingdom where the European Court of Human Rights found Human Rights Act to be argued even though the relevant hearing
breaches of Arts 5 and 6 of the Convention in sentencing powers being would be in process at the time the 1998 Act came into effect.
exercised by a member of the executive who could not be regarded as There are, of course, dangers in lawyers tossing the human
being impartial. She might also consider Curley v United Kingdom, rights coin into every conceivable argument. But the Court of Appeal’s
decided only two days before the decision of the House of Lords in the statement in Perry might itself be taken to suggest some
Hindley case itself. There the European Court of Human Rights found misunderstandings. While the history of the Convention lies in the
that the rights, under Art 5(4), of a prisoner detained at HM pleasure atrocities of the Second World War, it is very clear that the Convention
had been violated because there was no provision for the lawfulness of has a dynamic quality; it is, in the words of the European Court of
his continued detention to be reviewed by a court offering the Human Rights, ‘a living instrument which … must be interpreted in the
necessary judicial guarantees. In Curley, however, that principle was light of present day conditions’. Further, once the Human Rights Act
applied in the particular context of the power to order release upon comes into force in October, then the rights protected by the
expiry of the tariff part of the applicant’s mandatory life sentence. Convention will themselves be part of our domestic law.
There is clearly concern about the workload likely to be created
after the full implementation of the Human Rights Act. Practice
Note on the Human Rights Act 1998 Direction (Crown Office List: Preparation for Hearings) (2000) The
Some members of the judiciary are expressing concern, even before the Times, 24 March announced that, in order to clear the backlog of cases,
implementation of the Human Rights Act, about the frequency with the number of courts sitting in the Crown Office List from May to the
which the European Convention is being argued. In In re F (Minors) end of July was to be increased substantially.
(Care Proceedings: Contact) (2000) The Times, 22 June, Wall J
suggested that the Convention should not be routinely paraded before
the court as a makeweight ground of appeal. In Regina v Perry (2000)

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Articles
The Human Rights Act: minimalism or activism? ........................................................9
The Human Rights Act and developments in counter-terrorism
and State surveillance............................................................................................13

Case notes
Reynolds v Times Newspapers ..................................................................................18
R v Chesterfield Justices Chief Constable of Derbyshire ex p Bramley ......................18
Director of Public Prosecutions v Barnard and Others ..............................................19
Peterkin v Chief Constable of Cheshire......................................................................20
Joseph Hashman and Wanda Harrup v United Kingdom..........................................21

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 C I V I L L I B E R T I E S

The Human Rights Act:

minimalism or activism?
by Helen Fenwick, Reader in Law, University of Durham
The exam in 2000 is the last exam period before the Human Rights Act comes into force, on 2
October 2000. Therefore, questions on the Act are inevitable. Below, one of the most significant
issues relating to the Act is discussed.
The impact of the Human Rights Act (HRA) 1998 will largely depend on acceptance in the Member States and in particular where it is closely
the stance of the judiciary. Under s 3 of the HRA, the judiciary must linked to the notion of democracy, the Court will afford a narrow
interpret legislation if at all possible so as to comply with the Convention margin of appreciation only. In Socialist Party and Others v Turkey
rights and, under s 2, they must take the Strasbourg jurisprudence into (judgment of 25 May 1998 (App No 20/1997/804/1007) paras 41, 47,
account. Section 6 provides that public authorities, including courts, are 50), the Court found that the dissolution of the Socialist Party of Turkey
bound by the rights. In considering these sections, the judiciary have the had breached Art 11 since:
opportunity of taking an activist or a minimalist approach. In other ... there can be no democracy without pluralism ... It is
words, they can seek to give the rights genuine efficacy or they can adopt of the essence of democracy to allow diverse political
the interpretation which will cause least disturbance to the existing order. programmes to be proposed and debated.. Taking these
One factor which will be relevant is the doctrine of the margin of matters into account ... In determining whether a
appreciation. The European Court of Human Rights has stated that the necessity existed, the Contracting State was found to
role of the Convention in protecting human rights is subsidiary to the role possess only a limited margin of appreciation.
of the national legal system (Handyside v UK A 24 para 48 (1976)) and The picture is more confused where a principle may be said to have
that, since the State is better placed than the international judge to received some general acceptance within the Contracting States and
balance individual rights against general societal interests, Strasbourg will where the Court itself appears to have espoused it in the past but
operate a restrained review of the balance struck. The doctrine of the where it cannot clearly be said that a common standard can be found.
margin of appreciation conceded to states has now reached the stage In such an instance, the determining factor may be the general
where it can be said that it permeates the Convention jurisprudence. If a principles underlying the Convention. The need to adhere to such
broader margin is allowed, Strasbourg review will be highly principles underlies the remarks in Cossey v UK (A 184 (1990)) of
circumscribed. If the margin allowed is narrow, a very full and detailed Judge Martens in his dissenting Opinion:
review of the interference with the guarantee in question will be … this caution [in allowing a wide margin of
conducted. See, for example, the Sunday Times case Series A 30 (1979); appreciation based on a strict application of the
2 EHRR 245. common standards doctrine] is in principle not
The doctrine of proportionality is strongly linked to the principle consistent with the Court’s mission to protect the
of the margin of appreciation – a narrow margin conceded to the State individual against the collectivity … in this context [of
means that a rigorous or intensive review of the proportionality between legal recognition of gender reassignment] there simply is
the aim of an interference and the extent and nature of the interference no room for a margin of appreciation [at para 5.6.3].
will be undertaken. The width allowed depends on a number of factors The doctrine is a distinctively international law doctrine, based on the
including the aim of the interference in question and its necessity. need to respect the decision making of nation States within defined
The common standards doctrine will be influential – the lack of a limits. Therefore, it would not appear to have any application in
uniform standard among the Member States will tend to mean that a national law. However, this presents the judiciary with a difficulty in
wide margin will be conceded. The lack of a uniform standard was the taking account of the Strasbourg jurisprudence. While it appears to be
key factor in the ruling in Otto-Preminger Institut v Austria (Series A 295- clear that they should not overtly apply the doctrine, they still have to
A (1994); 19 EHRR 34).The decision concerned the seizure of a film consider how to apply Strasbourg case law which was heavily
likely to offend religious feeling. The European Court of Human Rights influenced by it. If, in a particular instance, a judge finds that on the
found that the film would receive protection under Art 10 but that its issue confronting her, a case which goes in favour of protecting the
seizure fell within the ‘rights of others’ exception. In considering whether right in question is applicable, the judicial determinations would
its seizure and forfeiture was ‘necessary in a democratic society’ in order concern only its interpretation and the application of the case to the
to protect the rights of others to respect for their religious views (under Art instant facts, rather than the question of the application of the margin
9), the Court took into account the lack of a uniform conception within of appreciation doctrine. This, in itself, would obviously leave open
the Member States of the significance of religion in society and therefore leeway for a minimalist or activist approach. But where a judge is
considered that the national authorities should have a wide margin of confronted with a decision which fails to uphold the right in question,
appreciation in assessing what was necessary to protect religious feeling. she should ask whether the failure was due to an application of the
On the other hand, where a principle has received general margin of appreciation. If so, she should disapply the margin of

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C I V I L L I B E R T I E S

appreciation aspects of the decision since otherwise she will have from the instant case, which, although open to question, was a
allowed this distinctively international law doctrine to influence legitimate interpretation and did not affect the significant principle
domestic decision making. encapsulated in Teixeira, which was that where certain forms of
At the present time, when the Convention rights are in force in impropriety are used in the obtaining of non-confession evidence, the
Scotland, under s 57(2) of the Scotland Act 1998, and have some effect trial will be unfair from the outset. The unfairness could be cured only
in the rest of the UK due to s 22(4) of the HRA (affording the Act a by staying the prosecution for abuse of process or excluding the
measure of retrospectivity when used as a ‘shield’ against a public evidence.
authority), we can see early indications as to the judicial responses to The next decision also adopted a somewhat minimalist stance,
the Convention. in a more significant fashion. In Paton v Procurator Fiscal ((1999)
In Nottingham City Council v Mohammed Amin ((1999) Judgment of 24.11.99), the appellant was to be interviewed about
judgment of 15.11.99), Lord Bingham took Art 6 of the Convention into attempted theft and at the police station he indicated that he wanted a
account and applied the judgment in Teixeira de Castro v Portugal solicitor to be informed of his detention. When he was interviewed, his
((1998) 28 ECHR 101; [1998] Crim LR 751). In Teixeira, the applicant, solicitor was not present and he was not told that the police had a
who had no criminal record and was previously unknown to the discretion to allow his solicitor to be present during the interview if he
police, was introduced by a third party to two undercover police so wished. After caution, the appellant admitted that he was trying to
officers who told him that they wished to buy 20 grams of heroin. He break into the premises in question. When the charges were recited (he
bought the drugs on their behalf at a price allowing him to take a profit. was charged with attempting to break into premises with intent to steal
He was then tried and convicted on the evidence of the officers of drug and, in the alternative, that he was found at premises without lawful
dealing and sentenced to six years’ imprisonment. The Court found, by authority, the inference being that he might commit theft contrary to s
eight votes to one, that the entrapment by the police officers in order to 57(1) of the Civil Government (Scotland) Act 1982), the appellant said
secure evidence had made a fair trial impossible from the outset and on that he had been merely passing by when the police chased him. The
this basis found a breach of Art 6. appellant complained that he could not receive a fair trial and argued
In Amin, the respondent, who was driving an unlicensed motor that Arts 6(1) and 6(3)(c) of the Convention had been contravened. By
vehicle within the area of the appellant council, responded to a flagging virtue of s 57(2) of the Scotland Act 1998, a Scottish court is at present
down by two police constables posing as members of the public; he required, inter alia, to take into account the various rights enshrined in
took them as passengers to their destination where the fare was paid the Convention. The Court took into account the fact that the appellant
over. A licence for that area had not been previously obtained under s had not made a request for his solicitor to be present and that neither
37 of the Town Polices Clauses Act 1847 contrary to s 45 of that same Scottish law nor the Convention required that in all cases a detained
Act. The respondent relied on para 38 of the judgment in Teixeira person should be afforded the opportunity to have a solicitor present.
where it was found that the evidence from entrapment should have The Court found that the question whether a fair trial could be achieved
been excluded on the basis that ‘the two police officers did not confine depended not simply upon what happened during the preliminary
themselves to investigating (the defendant’s) criminal activity in an investigation, but on the whole proceedings and there were a number
essentially passive manner, but exercised an influence such as to incite of safeguards accorded to the accused during the investigation and the
the commission of the offence’. The respondent contended that the trial process; on this basis, the appeal was refused and the case was
police constables had not confined themselves to passive investigation remitted to the sheriff to proceed to trial.
but had incited him to commit the offence, thereby rendering the These findings do not appear to encourage the notion that
proceedings as a whole unfair. The magistrate had accepted this and certain rights, such as access to custodial legal advice, are of especial
dismissed the information on the ground that the constables’ evidence significance as fundamental constitutional rights; they encourage a
was inadmissible, following Teixeira. On appeal, Lord Bingham found broad brush approach which appears to assume that a breach of a
that, although it was accepted that on a precise and literal reading of suspect’s rights may be cured by affording other rights. However, these
the Court’s language at para 38 the respondent had been entitled to findings may be based on the lack of a right to have a solicitor present
make the submission he had made, the far reaching effects which the in the police interview in Scotland, and, it is suggested, on a narrow
respondent based on it could not. The court found that Teixeira differed and doubtful interpretation of Art 6. Although on its face Art 6 does not
from the respondent’s case since the criminal act was of a much more require that a suspect should have access to custodial legal advice, the
minor nature and the circumstances simpler. On the basis of the facts of decision in Murray (John) v UK ((1996) 22 EHRR 29) strongly suggests
the respondent’s case, it could not be concluded that he had been that such advice should be available where adverse inferences could be
pressured or incited into committing an offence and therefore it could drawn from silence.
not be concluded that the admission of the evidence of the police In contrast to these decisions, the decisions in the Divisional
constables would have such an adverse effect on the fairness of the Court on appeal and in the House of Lords in R v DPP ex p Kebilene
proceedings that the court ought not to admit it. and Others; R v DPP ex p Rechachi ([1999] 3 WLR 175) provide
This was quite a restrictive interpretation of Teixeira. The basis strongly diverging and significant indications as to the stance which
on which it was found that flagging down the driver – a positive action may be taken to ‘unfavourable’ Strasbourg decision which have been
– was not incitement to commit the offence is, it is suggested, unclear. It influenced by the margin of appreciation doctrine. A robust
is not entirely certain that the driver would have committed the offence interpretation of Art 6(2) was adopted in the Divisional Court. The first
had not the constables positively encouraged him to do so by flagging three defendants had been arrested and charged under s 16A of the
him down. He had turned off his light, thereby indicating that he was Prevention of Terrorism Act 1989, as inserted. At trial, the judge ruled
not for hire. that s 16A was incompatible with Art 6(2). The DPP, when asked to
Teixeira was hardly influenced by the doctrine of the margin of reconsider his consent to the prosecution, appeared before the judge to
appreciation. Therefore, the decision could be applied as though it was argue that the ruling was wrong since in his opinion, based on legal
an ordinary precedent. Lord Bingham found a means of distinguishing it advice, the two were compatible. The fourth defendant, Rechachi, was

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arrested and charged under ss 16A and 16B of the 1989 Act, as in Killen that an identical provision in s 7(1) of the Northern Ireland
inserted. Following the DPP’s consent to the institution of proceedings, (Emergency Provisions) Act 1973 placing an onus on the accused to
he was arraigned and pleaded not guilty. The defendants sought disprove his knowledge of possession should not be used unless,
judicial review of the DPP’s decision. The Lord Chief Justice, Lord having done so, the court would be left satisfied beyond reasonable
Bingham, found that the crucial question concerned the impact, if any, doubt of the guilt of the accused.
of the Human Rights Act 1998 on the exercise of the DPP’s decision to In other words, Lord Hope considered that the meaning of s
give his consent to prosecute, between its enactment and the bringing 16A could be affected by reading into it an implied meaning under s 3
into force of its main sections. The decision to give consent was of the HRA. But, in arriving at the meaning of s 16A, he thought that Art
reviewed, taking into account the ruling of the judge as to the 6(2) could be viewed as qualified to an extent although the guarantee it
incompatibility of s 16A and Art 6(2). The public interest in prosecution enshrines is expressed in absolute terms. He said:
was taken into account. One relevant aspect of that interest was In this area, difficult choices may have to be made by the
whether, if the applicants were convicted, their convictions would be executive or the legislature between the rights of the
upheld on appeal. If at the time of any appeal the main provisions of individual and the needs of society. In some
the Human Rights Act were in force, the applicants would be entitled to circumstances, it will be appropriate for the courts to
rely on ss 7(1)(b) and 22(4) of the Act. The DPP had relied on legal recognise that there is an area of judgment within which
advice to the effect that the provisions in question were not the judiciary will defer, on democratic grounds, to the
incompatible with Art 6(2). The Court could therefore, properly, considered opinion of the elected body or person whose

consider the soundness of that advice despite the provision of s 29(3) of act or decision is said to be incompatible with the

the Supreme Court Act 1981 which impliedly precludes such review. Convention.

The applicants submitted that the presumption of innocence The term he used to describe the area in which these choices might
arise was the ‘discretionary area of judgment’. He recognised the
under Art 6(2) was infringed if a legal burden was placed on a
difficulty that Art 6(2) is expressed in unqualified terms:
defendant to disprove any substantial ingredient of the offence with
It will be easier for such an area of judgment to be
which he was charged. They argued that ss 16A and 16B placed such a
recognised where the Convention itself requires a balance
burden on defendants. The Lord Chief Justice, Lord Bingham, found
to be struck, much less so where the right is stated in
that both sections undermined the presumption of innocence under Art
terms which are unqualified. It will be easier for it to be
6(2) ‘in a blatant and obvious way’ due to the use of presumptions and
recognised where the issues involve questions of social or
the possibility of conviction on reasonable suspicion falling short of
economic policy, much less so where the rights are of
proof under s 16A, and the lack of a need to prove mens rea under s
high constitutional importance or are of a kind where the
16B. Lord Bingham observed:
courts are especially well placed to assess the need for
Under s 16A, a defendant could be convicted even if the
protection. But even where the right is stated in terms
jury entertained a reasonable doubt whether he knew that
which are unqualified, the courts will need to bear in
the items were in his premises and whether he had the
mind the jurisprudence of the European Court which
items for a terrorist purpose [at 190H].
recognises that due account should be taken of the
Lord Bingham pointed out that this conclusion was influenced by the
special nature of terrorist crime and the threat which it
absolute nature of the guarantees under Art 6. Therefore, the DPP’s
poses to a democratic society.
continuing decision to continue the prosecution of the defendants
(He gave the example of the ruling of the Court in Murray v United
under ss 16A and 16B was declared to be unlawful.
Kingdom (1994) 19 EHRR 193, 222, para 47.)
The House of Lords, in a cautious judgment, unanimously
Lord Hope also considered that in interpreting s 16A in the light
overturned the Divisional Court decision on the narrow ground that,
of Art 6(2) the interests of the individual could be balanced against
under s 29(3) of the 1981 Act, the DPP’s consent to a prosecution is not
those of society and that in striking that balance the Convention
reviewable, or reviewable only in exceptional cases. Lord Hope jurisprudence and that which is to be found from cases decided in other
considered the view that might be taken of the compatibility of s 16A jurisdictions suggested that account might legitimately be taken of the
with Art 6(2). He said: problems which the legislation was designed to address. He looked at
I see great force in the Divisional Court’s view that on the the example of Salabiaku v France ((1988) 13 EHRR 379) in which it
natural and ordinary interpretation there is repugnancy was found that, while Art 6(2) ‘does not ... regard presumptions of fact
[in s 16A]. To introduce concepts of reasonable limits, or of law provided for in the criminal law with indifference’, it permits
balance or flexibility, as to none of which Art 6(2) says the operation of such presumptions against the accused so long as the
anything, may be seen as undermining or marginalising law in question confines such presumptions ‘within reasonable limits
the philosophy embodied in the straightforward provision which take into account the importance of what is at stake and
that everyone charged with a criminal offence shall be maintain the rights of the defence’. The Court was concerned with an
presumed innocent until proved guilty according to law. Art in the Customs Code dealing with the smuggling of prohibited
But he went on to find that s 16A might be compatible with Art 6(2) goods. Where possession of prohibited goods was established, the
bearing in mind the ‘strong adjuration’ of s 3 of the HRA. He person was deemed liable for the offence of smuggling. The provision
considered that s 3 might require s 16A to be interpreted as imposing appeared to lay down an irrebuttable presumption; the code did not
on the defendant an evidential, but not a persuasive (or ultimate), provide expressly for any defence. But the Court held that there was no
burden of proof, although he found that this was ‘not the natural and failure to comply with Art 6(2), because in practice the courts were
ordinary meaning of s 16A’. It was, however, he found, a possible careful not to resort automatically to the presumption but exercised
meaning. Lord Hope took R v Killen [1974] NI 220 into account in their power of assessment in the light of all the evidence. In coming to
support of the possibility of a flexible interpretation of s 16A. It was held this determination, the Court’s acceptance that some presumptions

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C I V I L L I B E R T I E S

against the accused might not infringe Art 6(2) appeared to rest partly onus to the defence?;
on an application of the margin of appreciation doctrine, influenced by (2) what is the burden on the accused – does it relate to something
the notion of common standards, since such presumptions are common which is likely to be difficult for him to prove, or does it relate to
across Europe. something which is likely to be within his knowledge or to
Lord Hope noted that the guidance which was given in which he readily has access?;
Salabiaku was applied by the Commission in H v United Kingdom (3) what is the nature of the threat faced by society which the
Application No 15023/89, in which the complaint was that the burden provision is designed to combat?
on the accused in criminal proceedings to prove insanity on the Applying these tests, he found:
balance of probabilities was contrary to the presumption of innocence It is not immediately obvious that it would be imposing
and in violation of Art 6(2). He also considered Bates v United Kingdom an unreasonable burden on an accused who was in
Application No 26280/95, in which the complaint was that Art 6(2) had possession of Arts from which an inference of
been violated by the presumption of fact in s 5(5) of the Dangerous involvement in terrorism could be drawn to provide an
Dogs Act 1991 by which it is to be presumed that the dog is one to explanation for his possession of them which would
which section 1 of that Act applies unless the contrary is shown by the displace that inference. Account would have to be taken
accused. In the Bates case the Commission held that s 5(5) fell within of the nature of the incriminating circumstances and the
reasonable limits, even in the light of what was at stake for the facilities which were available to the accused to obtain
applicant, given the opportunity expressly provided to the defence to the necessary evidence. Then there is the nature of the
rebut the presumption of fact, and that s 5(5) was applied in a manner threat which terrorism poses to a free and democratic
compatible with the presumption of innocence. society ... It is often indiscriminate in its effects, and
Lord Hope concluded that, although Art 6(2) is expressed in sophisticated methods are used to avoid detection ...
absolute terms, it is not regarded as imposing an absolute prohibition Society has a strong interest in preventing acts of terrorism
on reverse onus clauses, whether they be evidential (presumptions of before they are perpetrated ... s 16A is designed to
fact) or persuasive (presumptions of law). In each case, the question will achieve that end.
be whether the presumption is within reasonable limits. In support of Lord Hope left open the question whether s 16A did in fact strike the
his balancing approach, he referred to Lord Woolf’s findings in Attorney right balance, taking these tests into account, but he clearly reached a
General of Hong Kong v Lee Kwong-kut ([1993] AC 951, 966). Lord conclusion which differed sharply from that of Lord Bingham in the
Woolf explained the Canadian approach when applying the Canadian Divisional Court in finding that Art 6(2) could be interpreted in such a
Charter of Rights and Freedoms; the matter is examined in two stages: way as to permit the use of presumptions against the accused.
to see whether the provision in question has violated the presumption The judgments in the House of Lords and in the Divisional
of innocence in s 11(d) of the Charter, and then to apply the limitation Court, especially those of Lord Hope and Lord Bingham, are extremely
set out in s 1 of the Charter. Section 1 states that the rights and freedoms significant since they give diverging indications as to the possible
which it guarantees are ‘subject only to such reasonable limits approaches of the senior judiciary to the Convention rights. Lord
prescribed by law as can be demonstrably justified in a free and Bingham’s approach may be termed activist or maximalist in the sense
democratic society’. The better approach to the Convention Lord Woolf that he took a generous, robust approach to Art 6(2), while Lord Hope’s
said, in the context of the Hong Kong Bill of Rights, would be to avoid may be termed minimalist since he took into account a decision,
the somewhat complex two stage approach which is involved in the Salabiaku, which might be viewed as adverse to the efficacy of Art 6(2),
Canadian process of reasoning. However, he also said: and failed to consider whether a different outcome might have been
In a case where there is real difficulty, where the case is achieved in that case had it not been influenced by the margin of
close to the borderline, regard can be had to the appreciation doctrine, based to an extent on an application of the
approach now developed by the Canadian courts in notion of common standards.
respect of s 1 of their Charter. However, in doing this, the These four decisions indicate possible approaches to the issues
tests which have been identified in Canada do not need of minimalism or activism. Broadly speaking, three of them might be
to be applied rigidly or cumulatively, nor need the results termed minimalist, and Lord Hope’s decision is of particular interest
achieved be regarded as conclusive. They should be since it suggests that although the judiciary will not simply apply the
treated as providing useful general guidance in a case of margin of appreciation doctrine, they may well develop a domestic
difficulty. This is particularly true in relation to what was equivalent, even where, on its face the Convention guarantee is
said in R v Chaulk (62 CCC (3d) 193, 216–17) about unqualified. In other words, in seeking to respond to the Convention in
proportionality, since it is the need to balance the a minimalist fashion, the judiciary may ‘read down’ the rights. But the
interests of the individual and society which are at the Lord Chief Justice’s activist approach in ex p Kebilene, if it takes hold
heart of the justification of an exception to the general among the senior judiciary, would tend to ensure the genuine efficacy
rule. of the rights.
Lord Hope went on to consider various tests which had been suggested
by counsel which could be used in determining where the balance lies:
(1) what does the prosecution have to prove in order to transfer the

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The Human Rights Act and

developments in counter-
terrorism and State
surveillance
by Helen Fenwick, Reader in Law, University of Durham
The Human Rights Act 1998 is undoubtedly one of the most significant statutes ever passed in the
UK and, even before it came fully into force, it began to have an effect on other legislation.
Once the Act is in force, it will affect the actions of public authorities, The interpretative obligation is arguably rendered stronger in
since they are bound by the rights it receives into domestic law. The respect of subsequent legislation under s 19, a provision which bears
current government has also put in place a new, extremely some similarity to a ‘notwithstanding’ clause, on the Canadian model.
comprehensive statutory framework for State surveillance and for (Under this model, legislation can include a clause stating ‘this statute
counter-terrorism. The provisions are continued in the Regulation of is to be given effect notwithstanding the provisions of the Canadian
Investigatory Powers Act (RIPA) 2000 and the Terrorism Act 2000. It is Charter’.) When a Minister introduces a Bill into either House of
necessary for the new RIPA provisions to be in place as soon as possible Parliament, he or she must make and publish a written statement to
since otherwise various practices of the police and security agents might the effect either that in his or her view the provisions of the Bill are
be found to be incompatible with the Convention guarantees. This is true compatible with the Convention rights, or that, although unable to
to a lesser extent of provisions of the Terrorism Act. However, although make such a statement, the government wishes nevertheless to
the provisions of the two Bills were declared in Parliament to be proceed with the Bill. Use of the latter statement would be bound to
compatible with the guarantees, this must remain a matter that will have cause political embarrassment and, almost certainly, successful
to be determined in future. The RIPA is an intensely controversial Bill applications to Strasbourg. It is therefore likely to be a very rare
which attracted wide ranging critical comment and which was amended occurrence, probably arising only in time of war or national
quite significantly in the Lords. The Terrorism Bill was also amended in emergency.
the Lords; crucially the definition of terrorism was radically altered. The If a Minister makes a statement to the effect that the legislation
RIPA and the Terrorism Act are likely to come into force in late October is compatible with the Convention, but subsequently it appears that
2000. there is incompatibility, the judiciary would be likely to do their
Although these two Acts were introduced either in order to meet utmost to ensure compatibility, especially where parliamentary debate
the demands of the Convention or with those demands in mind, the had proceeded on the assumption that the Bill was indeed compatible.
strong possibility arises that in certain aspects they have failed to meet They could be said to be under a dual adjuration to do so, arising from
them. both s 3 and the statement. It may be noted that the Terrorism Bill
2000 and the Regulation of Investigatory Powers Bill 2000 were
The Human Rights Act accompanied by statements of compatibility although both contain a
number of provisions of doubtful compatibility.
If a court is unable to ensure compatibility it can, if of sufficient
The interpretative obligation authority (s 4(5) provides that this applies to the House of Lords, the
The Act receives the European Convention on Human Rights into UK Judicial Committee of the Privy Council, the Courts Martial Appeal
law. The Convention will have a lower status than pre-existing law since Court; in Scotland, the High Court of Justiciary sitting otherwise than a
it cannot impliedly repeal other statutes. But, under s 3 of the Human trial court, or the Court of Session; in England and Wales the High
Rights Act (HRA), the judiciary are placed under an obligation to ensure Court or the Court of Appeal) make a declaration of incompatibility
that primary and subordinate legislation is compatible with the under s 4. Under s 5(1), when a court is considering making a
Convention rights ‘so far as it is possible to do so’. If it not possible to do declaration the Crown must be given notice so that it can, under s 5(2),
so, the court must merely apply the primary legislation under s 3(2)(b) or intervene by being joined as a party to the proceedings. Section 3
the subordinate legislation if ‘primary legislation prevents the removal of provides that the interpretative obligation does not affect the validity,
the incompatibility’ under s 3(2)(c). These provisions preserve not only continuing operation or enforcement of any incompatible primary
parliamentary but executive power since they allow prerogative orders as legislation, and this is equally the case under s 4(6) if a declaration of
well as primary legislation to override the Convention. (Under s incompatibility is made. Section 4 means that ‘For the first time,
21(1)(f)(i), the term ‘primary legislation’ includes Prerogative Orders.) Parliament has invited the judges to tell it that it has acted wrongly by

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C I V I L L I B E R T I E S

legislating incompatibly with a Convention right’ (Feldman, D, ‘The give effect to or enforce those provisions.
Human Rights Act and constitutional principles’ (1999) 19(2) LS 165, p Section 6(2)(a) creates a strong obligation requiring public authorities to
187). do their utmost to act compatibly. But it is not easy to reconcile s 3 with
If a declaration is made, s 10 will apply, allowing a Minister to s 6(2)(b), especially where the authority is under a dual adjuration, as it
make amendments to the offending legislation. However, the Minister will be, increasingly, in future. If s 3 is applied to s 6(2)(b), it would
is under no obligation to make the amendment(s) and may only do so if suggest that, where an authority has a discretion to act to give effect to
there are ‘compelling reasons’. In other words, the fact that a or enforce incompatible provisions, it should exercise its discretion
declaration of incompatibility has been made will not in itself provide a against so doing, since otherwise it would not appear to satisfy s 3.
compelling reason. Schedule 2 provides two procedures for making a There are a number of possible methods of using the
‘remedial order’ which must, under s 20, be in the form of a statutory Convention against a public authority or a hybrid body acting in its
instrument. Schedule 2 para 2(a) and para 3 provide for a standard public capacity under s 7(1) which provides:
procedure whereby the Minister must lay a draft of the Order before A person who claims that a public authority has acted or
Parliament, together with the required information – an explanation of proposes to act in a way which is made unlawful by s
the incompatibility and a statement of the reasons for proceeding under 6(1) may:
s 10 – for at least 60 days, during which time representations can be (a) bring proceedings against the authority under this
made to the Minister. It must then be laid before Parliament again and Act in the appropriate court or tribunal; or
does not come into effect until it is approved by a resolution of each (b) rely on the Convention right or rights concerned in
House within 60 days after it has been laid for the second time. The any legal proceedings.
emergency procedure under Sched 2 para 2(b) and para 4 follows the The individual could seek to bring judicial review proceedings under s
same route, apart from the very significant provision for allowing the 7(1)(a). The ground of review would be on the basis of illegality in that
Minister to make the order before laying it before Parliament. Thus, the the authority has breached s 6. (See Craig, P, Administrative Law, 3rd
amendment can be made outside the full parliamentary process which edn, 1994, London: Sweet & Maxwell.) The alternative ground would
would be required for primary legislation, but otherwise the be ultra vires on the basis that, once the legislation in question was
responsibility for amending primary legislation remains firmly in
interpreted compatibly with the Convention under s 3, it did not give
parliamentary hands, retaining ‘Parliament’s authority in the legislative
the authority the right to breach it as it has done. (The approach
process’ (Ewing, K, ‘The Human Rights Act and parliamentary
adopted in R v Lord Chancellor ex p Witham [1998] QB 575.) As Leigh
democracy’ (1999) 62(1) MLR 79, p 93).
and Lustgarten have pointed out, the judicial review procedure may not
be adequate as a means of determining the crucial issue of
Public and private bodies proportionality. (Leigh, I and Lustgarten, L, ‘Making rights real: the
Under s 6, Convention guarantees are binding only against public courts, remedies and the Human Rights Act’ (1999) 58(3) CLJ 509.) It is
authorities. Under s 6(3)(b), the term ‘public authority’ includes ‘any less likely in judicial review proceedings that discovery would be
person certain of whose functions are functions of a public nature’ but ordered or cross-examination allowed. Therefore, there are
does not include Parliament. The definition under s 6(3) is non- inadequacies in its fact finding role.
exhaustive and leaves open room for much debate on the meaning of It is also possible that proceedings could be brought for breach
‘functions of a public nature’. Under s 6(5), ‘in relation to a particular of statutory duty – the duty under s 6. The possibility of creating what
act, a person is not a public authority by virtue only of s 6(3)(b) if the has been termed a ‘constitutional tort’ of breach of Convention rights
nature of the act is private’. This means that private bodies which has been left open by the HRA and by the Lord Chancellor in
cannot be brought within the definition are not bound by the Parliamentary debate. (HL Debs vol 585 cols 853–56, 24 November
Convention rights, although this does not mean that they are entirely 1997.) Other existing tort actions such as false imprisonment which are
unaffected by them; see the discussion of ‘horizontal effect’ below. coterminous with Convention rights (in that instance, Art 5) could be
Quasi-public bodies are in the same position when acting in relation to brought against public authorities under s 7(1)(a) with a view to
their private as opposed to their public function. Section 6 therefore expanding the scope of the action by reference to the right. (Such
creates two categories of body against which the Convention can be actions would also of course be available against purely private bodies.
directly enforced: ‘pure’ public authorities which can never act See, further, Phillipson, G, ‘The Human Rights Act and the common
privately, even in respect of matters governed by private law, such as law’ (1999) 62 MLR 824, esp pp 834–40.) Under s 7(1)(b), the
employment relations, and quasi-public authorities which have a Convention guarantees could afford a defence in criminal proceedings
hybrid function. The third category, falling outside s 6, contains private where it could be argued that a public authority had acted unlawfully
bodies which have no public function at all. under s 6. They could also be used to afford a defence in civil
Obviously, an exception had to be made under s 6 in order to proceedings where the plaintiff was a public authority.
bring it into harmony with s 3 and to realise the objective of preserving
parliamentary sovereignty, but it is argued that the method adopted Remedies
may not fully succeed in so doing. Section 6(2) provides:
... sub-s (1) does not apply to an act if: Under s 8(1), a court which has found that an act or proposed act of a
(a) as the result of one or more provisions of primary public authority is unlawful is authorised to grant ‘such relief or remedy
legislation, the authority could not have acted or ... order within its powers as [the court] considers just and
differently; or appropriate’. Under s 8(2), damages cannot be awarded in criminal
(b) in the case of one or more provisions of, or made proceedings but this leaves open the possibility that they could be
under, primary legislation which cannot be read or awarded in judicial review as well as other civil proceedings. However,
given effect in a way which is compatible with the traditionally, the courts have been reluctant to award damages in public
Convention rights, the authority was acting so as to law cases and s 8(3) of the HRA 1998 encourages the continuance of

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this tradition in requiring consideration to be given first to any ‘other intention of suggesting that matters that can properly be dealt with
relief or remedy granted or order made’, the consequences of the under normal public order powers should in future be dealt with under
court’s decisions and the necessity of making the award. Under s 8(4), counter-terrorist legislation’ (para 3.18). But, once special arrest and
the court in deciding to award damages must take into account the detention powers are handed to the police they can be used, at their
principles applied by the European Court of Human Rights. This discretion, if a particular person or group falls, or appears to fall, within
suggests that awards are likely to be low. the new definition. Some direct action against property by animal rights
or environmental activists may well fall within it. The new definition
The Terrorism Act 2000 will also allow the currently non-criminal actions of a number of
persons to be re-designated terrorist since the special terrorist offences
When the Home Secretary introduced the Terrorism Bill to Parliament
will apply to a wide range of persons, including those who have some
in December 1999, he made a declaration of its compatibility with the
contact with persons designated ‘terrorist’. The strong likelihood is that
Convention rights under s 19(1)(a) of the HRA, but obviously the courts
only a minority of the groups which could fall within s 1 will be
remain at liberty to find incompatibility.
proscribed, at least in the initial years. Unlike the Prevention of
The justification for the new provisions is that they are needed
Terrorism Act (PTA) regime in which the special powers were used in
at the present time to combat the threat from three groups. The first of
practice against proscribed groups only, the special powers (apart from
these comprises those Irish splinter groups opposed to the peace
those specifically linked to proscription) can be used against any group
process. (In the paper, Legislation Against Terrorism, Cm 4178, the
falling within the broad definition of terrorism. Therefore, a number of
government finds: ‘... there are small numbers who remain opposed to
persons may unwittingly fall within the ambit of the special terrorist
peace and wedded to violence. So, even though the context is of a
offences.
general movement towards lasting peace in Northern Ireland, it is too
One controversial power, that of exclusion, is to be abolished.
soon to be confident that all terrorism has been abandoned.’) The
Section 5 of the PTA currently provides for exclusion from Great Britain,
second comprises ‘international terrorists’. The Consultation Paper
s 6 for exclusion from Northern Ireland and s 7 for exclusion from the
preceding the Act notes that, across the world, there has been a rise in
whole of the United Kingdom. These powers meant that Northern Irish
terrorism motivated by ‘religious idealism’. (Lord Lloyd’s Report (1996),
citizens could be forced to go back to Northern Ireland; there was little
which influenced the paper, draws attention to ‘possible future changes
reciprocity in terms of excluding Irish citizens to Britain. The powers
in the terrorist threat and to lives and property in the UK; changes
have been used with increasing infrequency: there were 248 orders in
which mirror what is happening across the world’ (para 2.4).) Both
force in 1982; by the end of 1996, there were 24. In 1997, the Home
these groups are already covered under the existing legislation,
Secretary considered that they were no longer effective in combating
although not all the special provisions are applied equally to
terrorism and revoked the 12 which remained. The exclusion powers
international terrorism. The threat is apparently from the new, third,
are not currently in force: they were lapsed with effect from midnight
group, on which the case for new legislation must rest. This group
on 21 March 1998, although until repeal of the PTA by the Act of 2000
comprises of a wide and disparate range of domestic groups other than
they could be reactivated.
those connected with Irish terrorism, such as animal rights or
The intention is that virtually all the extensive range of special
environmental activist (‘The threat from some marginal but extreme
terrorist offences will be retained under the new statute and that most of
elements of the animal rights movement continues to be of more
them will apply to the vast range of groups which could, potentially, fall
concern to the Government [than Scottish or Welsh nationalist groups]’
within the new definition. Under Pt VII, some will continue to apply
(para 3.10)) and, possibly, anti-abortion groups (para 3.10).
only to Irish rather than international terrorist groups, while, depending
The definition put forward in the Bill was originally extremely
on additions to the list of proscribed groups, some proscription-related
wide. Clause 1(1) provided:
offences may initially apply only to Irish groups. Once the range of
In this Act, ‘terrorism’ means the use or threat, for the
terrorist offences available are considered in relation to, for example,
purpose of advancing a political, religious or ideological
environmental or animal rights groups, the potentially immensely broad
cause, of action which:
impact of the new legislation becomes apparent, as does the possibility
(a) involves serious violence against any person or
that parts of it may infringe certain of the Convention rights, most
property;
notably Arts 10, 11, 6 and 5, under the HRA.
(b) endangers the life of any person; or
(c) creates a serious risk to the health or safety of the
public or a section of the public. The Regulation of Investigatory Powers Act
The definition was attacked in Parliament as creating a ‘fatally flawed’
2000
Bill. However, amendments forced on the government in the Lords led
to the inclusion of the notion of intimidation of a section of the public The Labour government introduced the Regulation of Investigatory
or of the need to show that the intention was to influence the Powers Bill 2000 (it was introduced into the House of Commons on 9
government. Nevertheless, the definition remains broad since many February 2000. The government had previously published a
forms of action are designed to influence the government. Consultation Paper Interception of Communications in the UK, Cm
The new definition will tend to allow many activities, currently 4368, published 22 June 1999. The responses to the Paper are available
criminal, to be re-designated as terrorist. Danger to property, violence at www.homeoffice.gov.uk/oicd/conslist2htm with a view to providing
or a serious risk to safety that can be described as ‘ideologically, a comprehensive statutory scheme for State surveillance, which would
politically, or religiously motivated’ may arise in the context of many meet the requirements of the Convention under the HRA. The RIPA,
demonstrations and other forms of public protest, including some which will repeal most of the Interception of Communications Act
industrial disputes. The government stated in the Paper that it had ‘no 1985, places most forms of State surveillance on a statutory basis and

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will, therefore, operate in tandem with the Police Act 1997. It also thought necessary to obtain under the warrant could reasonably be
extends to most forms of interception, including those outside the obtained by other means. This question also had to be asked under s
current regime. 2(3). But, s 5(2) implies that further matters should be considered.
Clearly, s 5(2) was introduced in an effort to meet the proportionality
Interception of communications requirement under Art 8(2). The warrants must be personally signed by
the Secretary of State or, in urgent cases or cases under the fourth
The Interception of Communications Act 1985 only covered certain
ground by ‘a senior official’ with express authorisation from the
limited means of intercepting communications. It did not cover
Secretary of State.
listening devices or all forms of telephone tapping. It covered the
This new procedure is based on the model provided by the
interception of only one means of telephonic communication –
1985 Act in that it allows for administrative oversight but maintains
communication via the public telecommunications system; this covered
executive authorisation of interception; it may therefore be contrasted
telephone, fax, telex and any other data transmission on the system,
with that in the US, where prior judicial authorisation is required
such as email. (The government at present maintains that some use of
(Berger v NY 388 US 41 (1967)) and with that in Denmark where
email is covered by the 1985 Act where public telephone lines are
authorisation is by an investigating magistrate (Art 126m of the Code of
used.) Given the immense increase in the use of mobile phones, pagers,
Criminal Procedure).
cordless phones, the potential for email transmission outside the
The request for the warrant may be made by a number of
telecommunications system, and the growth of internal telephone
persons from a non-exhaustive list. They include: the Director General
systems over recent years, the Act became increasingly marginalised. In
of the Security Service, the Chief of the Secret Intelligence Service the
introducing the new, far more comprehensive scheme, therefore, the
Director of GCHQ, the Director General of the National Criminal
Labour government sought to bring all forms of interception within it.
Intelligence Service, the Commissioner of Police of the Metropolis; the
The Regulation of Investigatory Powers Act 2000 defines the term a
Chief Constable of the Royal Ulster Constabulary, Chief Constables in
‘public telecommunications system’, used in s 2(1) of the 1985 Act,
Scotland (‘Of any police force maintained under or by virtue of s 1 of
much more widely to include all such systems which provide or offer a
the Police (Scotland) Act 1967’), the Commissioners of Customs and
telecommunications service to the public or part of it involving the use
Excise; a Permanent Under Secretary of State in the Ministry of
of electrical or electro-magnetic energy. Under s 2(1),
Defence; the relevant person for the purposes of any international
‘telecommunications system’ covers any system ‘which exists (whether
mutual assistance agreement. On Second Reading of the Bill in the
wholly or partly in the UK or elsewhere) for the purpose of facilitating
Commons, this list was criticised by the Conservative Opposition on the
the transmission of communications by any means involving the use of
basis that the list was not extensive enough. It was argued that the
electrical or elector-magnetic energy’. This definition would cover all
Benefits Agency of the DSS (HC Debs cols 778 and 831, 6 March
the forms of communication, including email, mentioned above,
2000) and the Inland Revenue (HC Debs col 821, 6 March 2000)
provided by any private company. (These would include, for example,
should be added to it.
BT, Orange and Vodaphone. It would also cover other providers of
email systems such as Freeserve or Yahoo.) Section 2(1) also covers
private telecommunications systems – most obviously those confined to
Other forms of surveillance
a particular company or body – although its coverage of private systems Part II of the Regulation of Investigatory Powers Act provides a
is limited to those which are attached to the public system directly or comprehensive statutory basis for the expanding use of forms of
indirectly. (Its coverage of private systems is a direct response to Halford surveillance and of undercover agents or informers. (The use of covert
v UK [1997] IRLR 471.) Its wording appears to be wide enough to cover surveillance together with other targeting methods, including the use of
most forms of telecommunication currently available, apart from informers, has expanded rapidly and is seen as immensely useful by the
entirely self-standing private systems (such as Intranet systems not police: see Policing with Intelligence HMIC Thematic Inspection
connected to any public system), although not necessarily those which Report, 1997/99.) Unlike Pt III of the Police Act 1997, it covers a very
may arise in the near future. wide range of bodies, including the security and intelligence services. It
The 1985 Act provided very wide grounds under s 2(2) on also covers a much wider range of circumstances. The new framework
which warrants for the purposes of interception could be authorised by therefore represents a very significant and dramatic step forward in
the Secretary of State, and the same grounds appear in the Regulation of terms of openness and accountability since, previously, there were no
Investigatory Powers Act 2000, with the addition of the purpose of requirements of oversight at all in respect of the use of informers (in
giving effect to the provisions of any international mutual assistance relation to police use of informers, there are unpublished, internal
agreement. This ground relates to Art 16 of the EU draft Convention on ACPO guidelines on the use of certain categories of informers:
Mutual Assistance in Criminal Matters. (The EU draft Convention on Informers Who Take Part in Crime Home Office Circular No 97/1969,
Mutual Assistance in Criminal Matters (5202/98-C4-0062/98) was set now to be found in para 1.92 of Home Office Consolidated Circular on
out in the EU-FBI telecommunications plan adopted by the EU in Crime and Kindred Matters No 35/1986. These guidelines are being
January 1995. Under ENFOPOL, the information required includes replaced by a published Code), or in respect of some of the other forms
email addresses, credit card details, passwords, IP addresses, customer of surveillance discussed below.
account numbers.) Its purpose is to require satellite operators based in Part II creates a distinction between what it terms ‘directed’ and
the UK to provide technical assistance to another Member State. ‘intrusive’ surveillance under s 26. Intrusive surveillance can occur in
The RIPA, however, contains a stronger proportionality more limited circumstances and the authorisation requirements are
requirement than that contained in s 2(3) of the 1985 Act. The Secretary stricter. Under the tortuous definitions provided, ‘intrusive surveillance’
of State ‘shall not’ issue an interception warrant unless he believes that occurs when a surveillance device or an individual is actually present
the conduct it authorises ‘is proportionate to what is sought to be on residential premises, or in a private vehicle, or it is carried out by
achieved’. This includes asking whether the information which it is such a device in relation to such premises or vehicle without being

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present on the premises or vehicle. If the device or person is not on the 1997 and 2000 Acts.) However, the arrangements for intrusive
premises or vehicle, it is not intrusive surveillance unless ‘the device is surveillance do not in themselves appear to subvert those under the
such that it consistently provides information of the same quality and 1997 Act. Subversion has occurred more subtly, due to the overlap
detail as might be expected to be obtained from a device actually between directed surveillance and s 97 of the 1997 Act.
present on the premises or in the vehicle’ (s 26(5)). ‘Residential’ is Under s 32(3) of the RIPA, authorisation of intrusive surveillance
defined in s 48(1) as premises used as living accommodation, while is on the same grounds as for the interception of communications and a
‘premises’ includes movable structures and land. The definition very similar proportionality requirement is introduced under s 32(2).
expressly excludes common areas of residential premises and clearly ‘Serious crime’ is defined in s 81(3) in substantially the same terms as in
does not cover office premises (s 48(7)(b)). Under s 26(2), all covert s 93(4) of the 1997 Act. Authorisations for such surveillance are granted
surveillance is directed surveillance if it is not an immediate response by the Home Secretary under s 41 or, for police or customs officers, by
and it is undertaken for the purposes of a specific investigation, and in senior authorising officers, who are the highest ranking police officers in
order to obtain private information about a person, even if he is not Britain. (Under s 32(6), they include: the Chief Constable of every
identified in relation to the investigation. police force outside London in England, Scotland and Wales; the
‘Directed’ surveillance and the use of a covert human Commissioner and Assistant Commissioners of the Metropolitan Police;
intelligence source may be authorised on the same grounds, under ss the Commissioner of Police for the City of London; the Chief Constable
28 and 29, respectively. The grounds are far wider than those applying and Deputy Chief Constable of the Royal Ulster Constabulary; the
to the interception of communications or under Pt III of the Police Act. Director Generals of the National Criminal Intelligence and the
The grounds under s 5 of the RIPA are included, expressly or impliedly, National Crime Squad; and designated persons. Any person holding the
but the other grounds include those for: rank of Assistant Chief Constable in that Squad who is designated for
... preventing or detecting crime or of preventing disorder, the purposes of this paragraph by that Director General and any
the interests of public safety; for the purpose of protecting customs officer so designated by the Commissioners of Customs and
public health; for the purpose of assessing or collecting Excise.) There is also provision for the grant of authorisations in a case
any tax, duty ... or other ... charge payable to a of urgency by persons of almost equally high rank, other than the senior
government department; or for any other purpose authorising officer. (Under s 34(4), such persons are of a rank almost as
specified for the purposes of this sub-section by an order high as such officers. In the case of police forces, this means a person
made by the Secretary of State. holding the rank of Assistant Chief Constable or in the case of the
This order must be approved by Parliament. Metropolitan or London forces, of Commander.) The provisions for
Proportionality requirements are introduced under s 28(2) and urgent and non-urgent authorisations under ss 33, 34, 35 and 36 mirror
s 29(2) to the effect that the authorising person must believe that the those under the Police Act in that, under s 35, notice must be given to a
authorisation or authorised conduct is ‘proportionate to what is sought ‘Surveillance Commissioner’ and, under s 36 the authorisation will not
to be achieved by carrying it out’. This might include asking whether take effect until it has been approved, except where it is urgent and the
the information which it is thought necessary to obtain by these means grounds for urgency are set out in the notice, in which case the
could reasonably be obtained by other means. Clearly, in common authorisation will take effect from the time of its grant. Under s 38,
with their equivalents in Pt I, these provisions were introduced in an senior authorising officers can appeal to the Chief Surveillance
effort to comply with Convention requirements, under Art 8(2). The Commissioner against decisions of ordinary Surveillance
authorisation is granted by a ‘designated person’ under ss 28 and 29. Commissioners. The Commissioners have responsibility for the
Under s 30, they are ‘the individuals holding such offices, ranks or destruction of material obtained by surveillance, under s 37, but there is
positions with relevant public authorities as are prescribed for the no requirement that material no longer needed for proceedings and no
purposes of this sub-section by an order’ made by the Secretary of State. longer subject to an authorisation must be destroyed.
The Secretary of State can himself be a designated person under s 30(2).
The ‘relevant public authorities’ include the police, the security and
Conclusions
intelligence services, Customs and Excise, the armed forces, and any
other authority to be designated by order of the Secretary of State. Thus, It is clear from the above discussion that this is a period of great change.
the security and intelligence services can undertake directed The change is due not only to the inception of the HRA, but also to the
surveillance or use covert sources on grant of a warrant from a member legislation that, in a sense, it drew in its wake, bearing on the powers of
of the services, with no independent check. State agents to invade liberty. The inevitable consequence of the HRA
The highly significant question as to the persons within the was the need for greater regulation of the central areas of State power.
organisations indicated in s 30 entitled to grant the authorisations is In the case of surveillance, it was clear that a statutory basis was needed
therefore left unresolved and entirely in executive hands. The equally for the exercise of a number of powers which had no such basis – due
significant determination question as to the further public authorities to the Convention requirement that interferences with rights must be
which might be added to the list is also placed in the hands of the prescribed by law. In the case of the new counter-terrorism measures, a
Home Secretary, although subject to Parliament’s approval. statutory basis which would meet Convention requirements was
‘Intrusive’ surveillance, as surveillance invariably involving the needed in order in order to extend the special powers to new groups.
creation of existing civil or criminal liability, is treated somewhat But, ironically, although these two statutes therefore give an appearance
differently. Since some surveillance covered by s 97 of the Police Act of meeting those requirements, it is possible that they may fail to do so
would also amount to intrusive surveillance, any differences between in a number of respects. Both statutes increase the powers of the police
the procedures under the two statutes are significant since, as far as the and the intelligence services in a manner which has immense
police are concerned, the less restrictive route is likely to be used. (It implications for individual freedom. The HRA may, however, lead to a
may be noted that s 33(5) provides for ‘combined authorisations’, tempering of their effects.
where the authorisation combines authorisations given under both the

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knew the allegations to be false or was indifferent to their veracity.

Case notes Thus, the Law Lords established a new situation to which qualified
privilege would attach.
The key question was when there would be a ‘duty’ placed on

by Helen Fenwick, Reader in the media which would allow them to impart information, albeit
possibly erroneous. Their Lordships laid down a very broad and flexible
Law, University of Durham test which asked simply whether, in all the circumstances, the public
interest required publication of the material in question, an approach
which was said to be in harmony with Strasbourg jurisprudence on Art
A landmark decision for press freedom? 10. This would require examination of matters such as attempts made
by the media to verify the story and whether they had made any
attempt to include the response of the defamed person to the
Reynolds v Times Newspapers (1999) judgment 28 October, HL,
allegations with the aim of encouraging ‘responsible journalism’
available from the House of Lords website:
(Reynolds, p 13).
www.publications.parliament.uk/pa/ld/ldjudinf.htm
The Law Lords found that in the re-trial the publication would
not be protected by qualified privilege; therefore that aspect of the case
Facts would not be allowed to be re-opened at the re-trial.

Albert Reynolds, former Irish Prime Minister, brought a libel action

against The Sunday Times in respect of allegations it had made that he Comment
had lied to the Dail. The jury found that the defamatory allegations This case has been viewed in some quarters as a landmark decision for
were not true and therefore the defence of justification failed. They press freedom, since it makes it clear that a defence of qualified
found that Mr Ruddock, editor of The Times, had not acted maliciously privilege may be available to the media when, in reporting on matters
in writing or publishing the words complained of and that therefore the in the public interest, they make an innocent mistake which damages a
defence of qualified privilege, a matter for the judge, could succeed. reputation. However, it fails to give sufficient guidance on the crucial
The judge awarded damages of one penny. Having heard submissions question of when the qualified privilege will arise. As Alastair Brett,
on the issue of qualified privilege, he found that the publication was not Legal Manager of Times Newspapers put it: ‘... in practice, the case
privileged. Mr Reynolds appealed, contending that the judge had leaves newspapers and television companies fumbling in the dark for
misdirected the jury in certain respects. The defendants cross-appealed the defence of qualified privilege.’ Therefore, although it is a step in the
against the judge’s decision on the qualified privilege point. The Court right direction, which brings the UK somewhat closer to the position in
of Appeal agreed as to the misdirections and ordered a new trial; they other common law jurisdictions, it may not make much difference in
further found that the defendants would not be able to rely on qualified practice since the uncertainty the test generates will tend to have a
privilege at the new trial. The defendants appealed against this finding ‘chilling effect’ on the media.
to the House of Lords.

Search warrants: duties of police and

Held magistrates
The Law Lords had to decide when the media are entitled to some
protection from a libel action, by way of qualified privilege, when they R v Chesterfield Justices Chief Constable of Derbyshire ex p
make an innocent mistake which damages a politician’s reputation. Bramley (1999) Publications on the Internet, 5 November 1999, DC
This defence has received some common law recognition in certain
categories of situation, such as the giving of employment references.
The categories, according to Lord Nicholls, have not been regarded as
Facts
closed. Police officers, purportedly acting in accordance with the warrants,
The Law Lords showed an appreciation of the need to protect seized documents subject to legal professional privilege. An application
press freedom: for judicial review of the decision of the magistrates sitting at
... the court should be slow to conclude that a publication Chesterfield on 7 January 1999 to issue the search warrants in respect of
was not in the public interest and, therefore, the public two premises pursuant to s 26 of the Theft Act 1968 was made. It was
has no right to know, especially when the information is conceded before the hearing that the warrants should not have been
in the field of political discussion. issued because it had been made clear to the magistrates that the police
The Law Lords said that if the press has a ‘duty’ to report something as had not been looking for stolen goods but were looking for documents
‘the eyes and ears of the people’, and readers/listeners have a as part of an investigation into an alleged fraud. It was also conceded
commensurate ‘interest’ in receiving it, then the occasion should be that, the warrants having been obtained on an inappropriate basis, the
covered by qualified privilege. The defence means that mistakes, even searches and seizures were unlawful. A settlement had been agreed as
though damaging to reputation, will not lead to liability so long as the to damages and the documents recovered. The applicant still sought a
newspaper or television company does not make them maliciously or declaration that the entry, search and seizure by the police officers at
recklessly. In other words, the defendant can succeed if he cannot the two premises was unlawful. It was contended on behalf of the Chief
prove the truth of the defamatory allegations but can establish the Constable that if the warrants had been presented to the magistrates in
privilege. The plaintiff can succeed if he can show that the defendant the proper form, under s 8(1) of the Police and Criminal Evidence Act

18 • STUDENT LAW REVIEW • 2000 YEARBOOK

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