Jago v District Council Origin of Human The first question is The power will be used
[1990] C.L.Y. 1038 Rights whether the common law only in most exceptional
of Australia recognizes a circumstances to order
right to a speedy trial that a criminal
separate from and prosecution be stayed
additional to the right to a (ie delayed). The
fair trial. The second is Australian common law
whether in this case the does not recognize the
appellant's right to a fair existence of a special
trial has been prejudiced right to a speedy trial, or
by virtue of undue delay to trial within a
amounting to an abuse of reasonable time, which
process. The appellant relies for its operation
urges an affirmative not upon actual
answer to each question prejudice or unfairness
and accordingly seeks a but upon a concept of
permanent stay of the presumptive prejudice.
charges against him. Because there is no
constitutional guarantee
of a speedy trial, the
remedies are
discretionary and
necessarily relate to the
harm suffered or likely to
be suffered if
appropriate orders are
not made.
Entick v Carrington Origin of Human Involved the King’s men Held: the King/Earl
[1765] EWHC KB J98, Rights trespassing in a needed legal authority
95 ER 80 journalist’s house to find to interfere with
evidence of his property rights – it
wrongdoing – they wasn’t enough to have a
claimed it was on the general excuse of state
basis of national security necessity. “With respect
and “state necessity”. to the argument of state
necessity, the common
law does not understand
that kind of reasoning,
nor do our books take
notice of any such
distinctions.”
Malone v United Origin of Human Involved the police Held: intercepting his
Kingdom (8691/79) Rights listening to his phone calls calls infringed upon
(1985) 7 E.H.R.R. 14 and it was held in the UK A8(1) and there was no
that as there was no law legal basis for the
that specifically interception and nor
mentioned this scenario, could it be justified
it was not unlawful and under ECHR A8(2). The
the police thus had Interception of
authority to listen in to his Communications Act
calls. He proceeded to go 1985 must have a clear
to the ECoHR. legal basis, subject to
limits and review.
Privacy International v Origin of Human Issue: what was the It was ECHR compliant
nature of the computer but a specific authority –
,Secretary of State for Rights network exploitation as opposed to a general
Foreign and warrant granted under S5 one – was necessary in
Intelligence Services Act order to gain the
Commonwealth
1994 and was it ECHR warrant and thus there
Affairs compliant? was no authorisation for
[2016] Info. T.L.R. 71 general warrants.
Marbury v Madison 5 Influences to UK William Marbury had Instead, the Court held
US 137 (1803) human rights and been appointed Justice of that the provision of the
their protection the Peace in the District of Judiciary Act of 1789
Columbia, but his enabling Marbury to
commission was not bring his claim to the
delivered. Marbury Supreme Court was itself
petitioned the Supreme unconstitutional, since it
Court to compel the new purported to extend the
Secretary of State, James Court’s original
Madison, to deliver the jurisdiction beyond that
documents. Marbury, which Article III, Section
joined by three other 2, established. Instead,
similarly situated the Court held that the
appointees, petitioned for provision of the Judiciary
a writ of mandamus Act of 1789 enabling
compelling the delivery of Marbury to bring his
the commissions. The claim to the Supreme
Court found that Court was itself
Madison’s refusal to unconstitutional, since it
deliver the commission purported to extend the
was illegal, but did not Court’s original
order Madison to hand jurisdiction beyond that
over Marbury’s which Article III, Section
commission via writ of 2, established. In so
mandamus. holding, Marshall
established the principle
of judicial review, i.e.,
the power to declare a
law unconstitutional.
Moohan v Lord UK Human Rights – Did Section 3(1) Held, it didn’t: the words
Advocate [2014] UKSC Changes Representation of the in their ordinary
67 [2015] 2 W.L.R. 141 People Act 1983 prevent meaning did not support
prisoners from voting and a wider view that the
subsequently go against article was intended to
A3 Protocol 1 ECHR – the cover any major political
right to free elections? decision which was put
to a popular vote.
Bosphorus Pre-WW2 Involved the impounding “by Regulation Number
HavaYollari: Turizm ve Developments of leased aircraft in 990/93 the council gave
Ticaret Anonim Sirketi pursuance of UN effect to the decision of
v Ireland [EC], no sanctions regime and EC the community and its
Council Regulation. member states, meeting
45036/98
Protection of fundamental within the framework of
rights by EC law political cooperation.”
equivalent to that of the
Convention system, unless
the presumption to that
effect was rebutted.
Tyrer v UK (1979-80) 2 What is the ECHR? A juvenile was birched on The birching of a juvenile
E.H.R.R. 1 the Isle of Man and amounted to a breach of
, argued that it was a A3 ECHR.
breach of A3.
BJ Troubles and European Court of Northern Ireland Troubles Case remains undecided
prohibiting Human Rights (Legacy and – but is an example of an
prosecutions – Reconciliation) Act 2023 interstate dispute ie
ongoing case, gives amnesties to people between the British and
involved in the Troubles Irish Governments.
launched on 19/01/24
and prevents
prosecutions.
Hirst v UK (No 2) European Court of Was Representation of Held, yes: although
74025/01 (2006) 42 Human Rights the People Act 1983 s.3 states had a wide margin
E.H.R.R. 41 contrary to the European of appreciation and the
Convention on Human UK had a legitimate aim
Rights 1950 Protocol 1 in disenfranchising
Art.3 in relation to prisoners as a means of
preventing prisoners from encouraging responsible
voting? citizenship, but the
provisions employed in
meeting that aim were
not proportionate.
Although the ban no
longer applied to all
prisoners, it still affected
a sizeable majority. The
ban was applied across
the board, regardless of
the nature of the offence
or the length of the
sentence. There was no
evidence that the UK
had given serious
consideration to the
issue
Scordino v Italy (No 1) European Court of Victim contested the The length of the
[2006] ECHR Human Rights amount of compensation proceedings brought by
36813/97 paid in respect of the the applicants had been
excessive length of excessive, which may be
proceedings analysed as recognition
of a violation of the
Convention. While
respecting the margin of
appreciation enjoyed by
the national courts,
those courts must
comply with the Court’s
case-law too and award
consistent sums. In the
light of the difference,
the sum awarded to the
applicants cannot be
regarded as adequate
and thus capable of
making good the alleged
violation. The applicants
can claim to be victims
within the meaning of
Article 34.
[1990] C.L.Y. 1038 Rights whether the common law only in most exceptional
of Australia recognizes a circumstances to order
right to a speedy trial that a criminal
separate from and prosecution be stayed
additional to the right to a (ie delayed). The
fair trial. The second is Australian common law
whether in this case the does not recognize the
appellant's right to a fair existence of a special
trial has been prejudiced right to a speedy trial, or
by virtue of undue delay to trial within a
amounting to an abuse of reasonable time, which
process. The appellant relies for its operation
urges an affirmative not upon actual
answer to each question prejudice or unfairness
and accordingly seeks a but upon a concept of
permanent stay of the presumptive prejudice.
charges against him. Because there is no
constitutional guarantee
of a speedy trial, the
remedies are
discretionary and
necessarily relate to the
harm suffered or likely to
be suffered if
appropriate orders are
not made.
Entick v Carrington Origin of Human Involved the King’s men Held: the King/Earl
[1765] EWHC KB J98, Rights trespassing in a needed legal authority
95 ER 80 journalist’s house to find to interfere with
evidence of his property rights – it
wrongdoing – they wasn’t enough to have a
claimed it was on the general excuse of state
basis of national security necessity. “With respect
and “state necessity”. to the argument of state
necessity, the common
law does not understand
that kind of reasoning,
nor do our books take
notice of any such
distinctions.”
Malone v United Origin of Human Involved the police Held: intercepting his
Kingdom (8691/79) Rights listening to his phone calls calls infringed upon
(1985) 7 E.H.R.R. 14 and it was held in the UK A8(1) and there was no
that as there was no law legal basis for the
that specifically interception and nor
mentioned this scenario, could it be justified
it was not unlawful and under ECHR A8(2). The
the police thus had Interception of
authority to listen in to his Communications Act
calls. He proceeded to go 1985 must have a clear
to the ECoHR. legal basis, subject to
limits and review.
Privacy International v Origin of Human Issue: what was the It was ECHR compliant
nature of the computer but a specific authority –
,Secretary of State for Rights network exploitation as opposed to a general
Foreign and warrant granted under S5 one – was necessary in
Intelligence Services Act order to gain the
Commonwealth
1994 and was it ECHR warrant and thus there
Affairs compliant? was no authorisation for
[2016] Info. T.L.R. 71 general warrants.
Marbury v Madison 5 Influences to UK William Marbury had Instead, the Court held
US 137 (1803) human rights and been appointed Justice of that the provision of the
their protection the Peace in the District of Judiciary Act of 1789
Columbia, but his enabling Marbury to
commission was not bring his claim to the
delivered. Marbury Supreme Court was itself
petitioned the Supreme unconstitutional, since it
Court to compel the new purported to extend the
Secretary of State, James Court’s original
Madison, to deliver the jurisdiction beyond that
documents. Marbury, which Article III, Section
joined by three other 2, established. Instead,
similarly situated the Court held that the
appointees, petitioned for provision of the Judiciary
a writ of mandamus Act of 1789 enabling
compelling the delivery of Marbury to bring his
the commissions. The claim to the Supreme
Court found that Court was itself
Madison’s refusal to unconstitutional, since it
deliver the commission purported to extend the
was illegal, but did not Court’s original
order Madison to hand jurisdiction beyond that
over Marbury’s which Article III, Section
commission via writ of 2, established. In so
mandamus. holding, Marshall
established the principle
of judicial review, i.e.,
the power to declare a
law unconstitutional.
Moohan v Lord UK Human Rights – Did Section 3(1) Held, it didn’t: the words
Advocate [2014] UKSC Changes Representation of the in their ordinary
67 [2015] 2 W.L.R. 141 People Act 1983 prevent meaning did not support
prisoners from voting and a wider view that the
subsequently go against article was intended to
A3 Protocol 1 ECHR – the cover any major political
right to free elections? decision which was put
to a popular vote.
Bosphorus Pre-WW2 Involved the impounding “by Regulation Number
HavaYollari: Turizm ve Developments of leased aircraft in 990/93 the council gave
Ticaret Anonim Sirketi pursuance of UN effect to the decision of
v Ireland [EC], no sanctions regime and EC the community and its
Council Regulation. member states, meeting
45036/98
Protection of fundamental within the framework of
rights by EC law political cooperation.”
equivalent to that of the
Convention system, unless
the presumption to that
effect was rebutted.
Tyrer v UK (1979-80) 2 What is the ECHR? A juvenile was birched on The birching of a juvenile
E.H.R.R. 1 the Isle of Man and amounted to a breach of
, argued that it was a A3 ECHR.
breach of A3.
BJ Troubles and European Court of Northern Ireland Troubles Case remains undecided
prohibiting Human Rights (Legacy and – but is an example of an
prosecutions – Reconciliation) Act 2023 interstate dispute ie
ongoing case, gives amnesties to people between the British and
involved in the Troubles Irish Governments.
launched on 19/01/24
and prevents
prosecutions.
Hirst v UK (No 2) European Court of Was Representation of Held, yes: although
74025/01 (2006) 42 Human Rights the People Act 1983 s.3 states had a wide margin
E.H.R.R. 41 contrary to the European of appreciation and the
Convention on Human UK had a legitimate aim
Rights 1950 Protocol 1 in disenfranchising
Art.3 in relation to prisoners as a means of
preventing prisoners from encouraging responsible
voting? citizenship, but the
provisions employed in
meeting that aim were
not proportionate.
Although the ban no
longer applied to all
prisoners, it still affected
a sizeable majority. The
ban was applied across
the board, regardless of
the nature of the offence
or the length of the
sentence. There was no
evidence that the UK
had given serious
consideration to the
issue
Scordino v Italy (No 1) European Court of Victim contested the The length of the
[2006] ECHR Human Rights amount of compensation proceedings brought by
36813/97 paid in respect of the the applicants had been
excessive length of excessive, which may be
proceedings analysed as recognition
of a violation of the
Convention. While
respecting the margin of
appreciation enjoyed by
the national courts,
those courts must
comply with the Court’s
case-law too and award
consistent sums. In the
light of the difference,
the sum awarded to the
applicants cannot be
regarded as adequate
and thus capable of
making good the alleged
violation. The applicants
can claim to be victims
within the meaning of
Article 34.
