Unveiling Foundations for Judicial Review

Introduction

This paper brings forth a case study, which needs to be put under analytical scrutiny, in order to determine its basis before a Judiciary review. In conclusion, the paper will summarize the facts, thereby, bringing forth an answer to the case issue.

Issue

The first issue raised in this case is whether Lionel should bring his claim in Judicial Review under the Human Rights Act. The second issue is to determine the facts behind his claim, which justifies his major reason of bringing the claim in Judicial Review.

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Rule

The applicable principle in this case is in the article 5 of the ECHR, which stipulates that every individual has the right to be granted liberty. As such, no individual should be deprived of this right, except for other procedures, which are prescribed by the law. This then indicates that every individual is free in the present community, from any form of oppressive restriction, which may be imposed by the authority. The local authority imposes oppressive restrictions on Lionel, in which case, Nisha masterminds the turn down of Lionel’s application, owing to the fact that she wanted to avoid competition of the sale of cocktail to wealthy customers in the area.

Analysis

Lionel needs to forward this case, for the guilty to be charge in accordance with the law. This will consequently bring forth the provision of a logical approach, in which case there would be sufficient protection within the legal system, which protects individuals who have been denied the right to liberty in accordance with the provision of article 5 of the ECHR. The Ridgeway Licensing Authority is unjust, owing to the fact that it which turns down the application of Lionel to operate a cocktail bar. This is parallel to what is required of the authority, which is to consider the applications from individuals for licenses, if they wish to operate either clubs or restaurants, which serve alcohol. As such, Lionel should bring his claim in Judiciary review, in order for the case to be investigated, to enhance the protection and defense of the legal system, thereby, aiding to protect Lionel from the violation of his right to liberty that he faced from the Ridgeway licensing Authority. In line with this, it is required that if the Ridgeway Licensing Authority is found guilty of the claim, then the state authorities should take the appropriate action of prosecuting the this body, in order to allow the law bestowed in the article 5 of the ECHR to be enforced effectively.

Conclusion

Courts require individuals to bring forth their claims in judicial review, to aid in enforcing the law against cases of individual harm. As such, it is required of Lionel to take his claim in Judiciary review for deeper investigations to be done. This is owing to the fact that there is evidence of discrimination against Nisha, which then requires the attention of the legal action against the Ridgeway local authority.

Introduction

The purpose of this paper is to present a case study, under analytical scrutiny, which then determines whether it should be brought before a Judiciary review or not. Conclusively, the paper will present a conclusion, which bring together the facts of the case and presents the answer to the issue.

Issue

The first issue raised in this case is whether Mike should bring his claim in Judicial Review, considering the violation of his private life. The second issue is to identify the facts behind his case, which then could justify his reason to bring the case in the Judicial Review, under the Human Rights Act

Rule

Article 8 as stipulated in the ECHR states that every individual is entitled with the right for respect for his individual family life, his private life, as well as respect for his home, and correspondence. In this regard, any public authority should not interfere with such rights, except if the interference is in accordance with the stipulated law and is thereby necessary, based on the necessities of a democratic society, which is in the interest of the economy, public safety, disorder prevention, protection of morals, or even the national security. Moreover, another applicable principle is in the provisions of article 10 of the ECHR, which stipulates that everyindividual has the right to hold unto, and express personal opinions freely without the interference of a government authority.

Analysis

This case brings forth the idea that in accordance with article 8 as stipulated in the ECHR, the state’s authority had no right to interfere with Mike’s privacy by monitoring and interfering with his Facebook activities. On the other hand, it is evident that according to article 10 of the ECHR, Mike had the right to express himself freely through any platform. However, it is worth noting that the interference was in line with the stipulated law and is thereby necessary, based on the necessities of a democratic society. This justifies the powers of the police and the Home Secretary to conduct thorough surveillance in looking for evidence that justifies their claim. For this reason, the police found evidence, which was for the interest of the public; in which case, it was found that he was engaging in anti-democratic campaigns, and as such, should be charged a fine of £5,000, according to the law provisions. However much Mike has the right to express himself freely, it was not right for him to abuse his freedom by acting against the law. Overall, it is evident that if Mike brings his claim, he would lose. This is because sufficient evidence has been found, based on his Facebook activities, which then render him guilty of the crime and worth the charge of £5,000. For this reason, he should not bring any claim in judiciary review, because would be baseless.

Conclusion

It is the obligation of the Home Secretary, under the Police Power Act 2018, to order the police to conduct surveillance of individuals’ social media activities. Furthermore, because the Act stipulates that individuals that engage in ‘anti-democratic campaigning’ should be prosecuted and also convicted, on the basis of committing a criminal offence that is punishable by a fine of £5,000, Mike has no reason to bring a claim in judiciary review, because he will be found guilty of the crime. This then would make his claim baseless.

References
Legislation

Article 5 of the European Convention of Human Rights
Article 8 of the European Convention of Human Rights
Article 10 of the European Convention of Human Rights

Bibliography

  • Bradley, A., Ewing, K., & Knight, C. (2018). Constitutional and administrative law. Pearson Higher Ed.
  • Da Lomba, S. (2017). Vulnerability and the Right to Respect for Private Life as an Autonomous Source of Protection against Expulsion under Article 8 ECHR. Laws, 6(4), 32.
  • Đorđević, S. (2016). ARTICLE 10 OF THE EUROPEAN CONVENTION in light of the jurisprudence of the European Court of Human Rights. Facta Universitatis, Series: Law and Politics, 55-69.
  • Macken, C. (2006). Preventive detention and the right to personal liberty and security under article 5 ECHR. The International Journal of Human Rights, 10(3), 195-217.

Introduction

This paper purposes to discuss the extent to which the Supreme Court decisions in the case of Commissioner of Police of the Metropolis v DSD and another (Respondents) [2018] UKSC 11 clarifies the positive obligations imposed on the state by Article 3 of the European Convention on Human Rights. In line with this, the paper will refer to the legal reasoning of at least two of the judges in the Supreme Court. This is as presented below: Courts have intentionally been reluctant towards imposing a positive obligation onto the police, in a bid to investigating, detecting and prosecuting crimes that extend to individuals and not the public as stipulated under Article 3 in the provisions of the European Convention on Human Rights (ECHR). Several arguments generally relate to the limited resources that are available in the public services, as well as the potential for the litigation floodgates against them aiming to open and drain such limited resources. Significantly, Article 3 as stipulated in the European Convention on Human Rights (ECHR) states that no individual should be subjected to any form of torture, or inhuman or degrading treatment or even punishment. As such, it is clear that with

such stipulations, an individual has the right to bring forth a claim to the right authorities where he or she feels that injustice has been done unto him or her. Whilst it has initially been accepted that there is a positive obligation relating to systematic failures, it has never been clarified whether there exists a positive obligation as relating to operational failures, in an instance where individuals could bring forth a claim. This is in line with the provision in the case of Commissioner of Police of the Metropolis v DSD and another. According to Lord Kerr, there was a a positive obligation, as stipulated under Article 3 of the ECHR, which mandates state authorities to provide sufficient investigation in cases where harm has been inflicted in an individual. Lord Kerr further analyzed the provisions of MC v Bulgaria, whereby, he stated that two positive obligations based upon state authorities should be specified. For instance, the positive obligation in creating an effective provision in the criminal law, as well as an obligation in carrying out proper investigations, and also prosecutions, in order to allow the law bestowed in the first obligation to be significantly enforced. On the contrary, he also noted that there would be a redundancy within the law if such provisions are not enforced. Lorde Kerr stressed that without the provisions of Article 3, which requires the state authorities

to investigate deeper on matters, there would be a potential liability if the state authorities fail to take significant action. Lord Neuberger in agreement with Lord Kerr sated that the failure of the state authorities that are significantly and purely operational, and yet not systematic would consequently suffice, as per the basis for an individual claim as stipulated under article 3, owing to the fact that the law is not in any way limited in this way. This then brings the suggestion that the liability scope has significantly widened, in order to cover the second obligation. This then suggested that the liability scope widened in a bid to covering the second obligation according to Lord Kerr. These comments made clarifications in the matter, where, the liability imposed by the police is never limited to instances that there are systematic issues in the law, but rather, operational issues, which also bring forth liability. In this regard, failing to investigate or even prosecute when there is need to do so can amount to breaching of this obligation. Whilst there may be floodgates potentials for litigation, being opened when there emerges an error that is caused by the police, the examination of the court regarding the obligation may provide a suggestion that the obligation could only be present in matters related to the EU law and as such, not the common law.

In considering if a position is significantly and appropriately clarified, it is important to take note of the differing opinions between Lord Hughes and Mance, which would otherwise lead to the same opinion. Lord Hughes stated that a positive obligation mandates the state authorities to have necessary legal structures put in place, yet there is uncertainty under the ECHR’s case law when matters that are associated with positive obligation are investigated. This differed with the initial judgements, which then raised questions regarding the clarification that are provided by courts as related to such a case. Lord Hughes made a statement that where a specific case has structural issues and as such, there are regarded as causing a breach if there is need to consider the first obligation by Lord Kerr. This then creates an inconsistency with the judgement of the court, as well as the questions that are raised, whether there is the existence of the second obligation.

Lord Hughes then explained that the rationale behind failing to impose the police with torture liability is based on the discretionary nature of the responsibilities that they take care of, the positive obligation then needs to exists whilst considering the operational matters. Lord Mance then further argued that this is because it is not a consideration should not be put on both the operational and the systematic failures but rather, the differences that are noted between errors, as well as serious failings, and as such, it is clear that the latter purposes to attract liability. Evidently, this creates ambiguity whist considering the true position and meaning of English courts when there is need to put into consideration, the positive obligation. As such, the

judgement of both Lord Hughes and also Lord Mance makes it clear that systematic failures and even palpable failures are the only ways that liability are significantly attracted as per the stipulations in article 3 of the ECHR. This idea is conflicting with the perceptions of Lord Kerr, Lady Hale, as well as Lord Neuberger. Take a deeper dive into The Intersection of Penology, Society, and Human Rights with our additional resources.

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Conclusion

The court significantly dismissed the appeal, because of the different opinions that would derive the decision. Whilst Lord Kerr, Lady Hale, as well as Lord Neuberge, provided support that there exists a positive obligation on state authorities, Lord Mance and also, Lord Hughes limits the provisions of article 3, as they impose liabilities where there is a serious failing. This is contrary to the majority opinion and as such, the majority opinion clarifies the state’s position, bringing forth the idea that positive obligation, as well as breach of it can enable private individuals to bring in their challenge.

Legislation

  • Article 3 of the European Convention on Human Rights

Case Law

  • Commissioner of Police of the Metropolis v DSD and another [2018] UKSC 11 M.C. v Bulgaria (No. 39272/98), judgment of 4 December 2003.

Journals and Books

  • Bradford, B., Quinton, P., Myhill, A., & Porter, G. (2014). Why do ‘the law’comply? Procedural justice, group identification and officer motivation in police organizations. European Journal of Criminology, 11(1), 110-131.
  • FBA, S. F. (2011). Discrimination law. OUP Oxford. Horspool, M., & Humphreys, M. (2012). European Union Law. Oxford University Press.
  • Hough, M., Jackson, J., Bradford, B., Myhill, A., & Quinton, P. (2010). Procedural justice, trust, and institutional legitimacy. Policing: a journal of policy and practice, 4(3), 203-210.
  • Jackson, M. (2016). Freeing Soering: The ECHR, State Complicity in Torture and Jurisdiction. European Journal of International Law, 27(3), 817-830.
  • Lock, T. (2011). Walking on a tightrope: the draft ECHR accession agreement and the autonomy of the EU legal order. Common Market L. Rev., 48, 1025.
  • Mavronicola, N. (2015). Crime, punishment and Article 3 ECHR: puzzles and prospects of applying an absolute right in a penal context. Human rights law review, 15(4), 721-743.
  • Rehman, H. U., & Khan, M. A. (2015). A Critical Assessment Of The Case Law Of The European Court Of Human Rights In Relation To Article 3 And The Expulsion And Extradition Of Aliens. Journal of European Studies, 31(1).

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