The rights angle

From Diane Pretty who wanted the right to die, to Al-Qaeda's effect on the right to liberty, human rights laws have been pushed to the limit. Robin Allen QC and Tom Coghlin report

The courts have grappled with human rights issues in every field of law in the past year. Some cases have been notorious, some procedural and some will have a substantive long-term effect on the way we approach justice.
The single most important human right is the right to life, Article 2, and it is this that has led to perhaps the most arresting case – the tragic and heart-rending application by Diane Pretty (R (Pretty) v DPP [2001]).
It will be remembered that she suffered from motor neurone disease and sought an assurance from the Director of Public Prosecutions (DPP) that her husband would not be prosecuted if he assisted her to commit suicide. The House of Lords rejected her appeal under Articles 2, 3, 8, 9 and 14. Pretty's application to the European Court of Human Rights (ECHR) was unanimously rejected in April 2002. So, now we know that the right to life does not connote a right to self-determination as to one's life and death.
It was inevitable that Al-Qaeda would affect considerations under Article 5, the right to liberty. The Government thought that by derogating from this provision of the ECHR it would have a free hand to detain undesirable aliens under the Anti-Terrorism, Crime and Security Act 2001. However, it forgot the power of Article 14, the non-discrimination provision of the Convention, which has hitherto been rather ineffectual. In A v Secretary of State it turned out to be something of a sleeper. The Special Immigration Appeals Commission (Collins J (Ch), Kennedy LJ, Mark Ockelton) decided in July this year that as there had been no derogation from Article 14 it should be applied. Secondly, it decided that as no British national could be detained pursuant to the act, there was a difference of treatment that amounted to discrimination for the purposes of Article 14 of the Convention taken with Article 5. This case is now under appeal.
Cases about fair trial rights are always interesting. Article 6, the right to a fair trial, was successfully invoked in International Transport Roth GmbH v Secretary of State for the Home Department [2002], where the Court of Appeal considered a statutory scheme which made carriers liable to a penalty of £2,000 for every person found concealed in a vehicle entering the UK. There was provision for the detention of vehicles if it was feared that the fine might not be paid. The owner, hirer and driver were liable unless they could demonstrate their lack of actual or constructive knowledge of the presence of the person, or that they were acting under duress.
Having decided that the penalty was criminal rather than civil in nature, the majority of the Court of Appeal went on to hold that it breached Article 6. The breach came from a combination of features of the scheme, including the severity and inflexibility of the penalty, the lack of recourse to an independent tribunal, and the reversal of the burden of proof.
Some clever crooks thought that Article 6 could be made to work for them by failing to turn up for trial. But this avenue was closed in Jones [2002], where Article 6 was held not to have been breached where a defendant had been convicted in his absence after having deliberately failed to attend the trial.
It was always predicted that the biggest battle would be between privacy and the right of free speech. It has certainly generated case law. Following Douglas v Hello! [2001], the last year has seen a further series of cases where individuals' Article 8 right to respect for their private and family lives have been weighed against publishers' Article 10 right to freedom of expression in publishing those stories.
And who can forget Theakston v MGN [2002]. Certainly not television presenter Jamie Theakston, who sought injunctions preventing publication of photographs of him taken without his consent in a brothel, and an article reporting the incident. In a judgment of Solomon, Mr Justice Ouseley rejected the argument that all sexual relations should be regarded as private; these circumstances were far removed from sexual activities between couples at home. As for the written article, there was a real public interest in publication (meaning that publication was in the interests of the public), given Theakston's position of presenting programmes aimed at young viewers. The balance lay in favour of the defendant's right to free expression under Article 10, and the injunction was not granted. On the other hand, the publication of the photographs would be particularly intrusive into his private life, and there was no public interest in publishing them. Theakston's Article 8 right prevailed and Judge Ouseley granted the injunction to prevent publication.
The distinction between the protection afforded to transient and permanent relationships was adopted by the Court of Appeal in Flitcroft v MGN [2002], in the much-hyped case concerning publication of a professional footballer's extra-marital activities. In the first instance, an injunction was granted restraining publication on the grounds that there was no public interest in the details. The Court of Appeal rejected this approach and held that the fact that a section of the public was interested in someone in Flitcroft's position meant that there was a public interest in publication.
One of the more remarkable invocations of Article 10 was as a defence to criminal proceedings. In Perrin [2002] it was argued that it was a breach of Article 10 to criminalise the making of obscene publications – a defence rejected by the Court of Appeal since the interference with Article 10 was not disproportionate. And an Article 10 defence also failed in the case of Shayler [2002], concerning the former member of the security services, David Shayler, who disclosed materials in breach of the Official Secrets Act. He argued that his disclosure was in the public interest and that Article 10 should afford him a defence to a criminal prosecution under the Official Secrets Act. The House of Lords rejected that argument: such interference as there had been with his Article 10 right was proportionate given the special position of members of the security services and the nature of the material that came into their possession. His trial will start soon.
Article 10 was invoked by the Nation of Islam leader Louis Farrakhan in his challenge to the Home Secretary's decision to prevent his entry into the UK: R (Farrakhan) v Secretary of State for the Home Department [2001]. The sole reason for the decision to refuse him entry was to prevent him expressing his opinions: it was feared that such expression would give rise to a risk of disorder. Once again, the Court of Appeal held that this decision was not a disproportionate interference with his Article 10 rights.
But not all efforts to rely on Article 10 have failed. In Rusbridger and Toynbee v AG and DPP [2002] the Court of Appeal decided that a newspaper editor should be permitted to argue that no crime would be committed by publishing material calling for the establishment of a republic in the UK, an act which would otherwise be an offence under the Treason and Felony Act 1848.
Prisoners rarely get a sympathetic hearing and R (Mellor) v Secretary of State for the Home Department [2001] was no exception. Here a prisoner claimed the right to start a family by artificial insemination. It was held that this right was one of those things that prisoners must expect to forfeit, although allowance should be made for exceptional circumstances. Public perception of the penal process was a legitimate matter to be taken into account.
There have been few cases about employees and human rights. But one of them concerned a long-term campaign to secure tips left without much thought as part of a payment by cheque or credit card for a meal in a restaurant. Four waiters claimed that the process of using such tips to top up their basic pay for the purposes of the National Minimum Wage Act 1998 infringed their right to private property under Article 1 of Protocol 1 ECHR, together with Article 14 (non-discrimination rights). In Nerva v UK the court determined that there was not a sufficient expectation that the tips would not count towards remuneration, and that there was not a sufficiently precise basis on which to make a finding of “possessions” under Article 1 of Protocol 1.
The judges have undoubtedly been very restrained in their use of power under the Human Rights Act (HRA) to read down legislation that was inconsistent with convention rights. Were they right to be so cautious? In S (FC) and W [2002] the House of Lords re-examined this power under Section 3 of the HRA. The Lords held that to use Section 3 to produce a result, which departed substantially from a fundamental feature of an Act of Parliament, was an unacceptable use of the Human Rights Act. The House of Lords held that this was an area for Parliament and not for the courts.
Robin Allen QC, co-author of Human Rights and Employment Law, and Tom Coghlin are barristers at Cloisters