Solicitors Qualifying Examination

ECHR Prelims | Public Law – SQE1 & SQE2 Exam

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ECHR Prelims
Prelims
Standing
• Under s 7(1) HRA 1998, victims of unlawful acts by public authorities may
bring claims against the authority.
• S 7(7) makes clear that ‘victim’ has the same meaning as under Art 34
European Convention of Human Rights (ECHR): a person directly
(actually or potentially) affected by action or inaction, per Klass v
Germany.
• APPLY.
• Legal persons include organisations with legal personality (The Sunday
Times v UK) – corporations, trade unions / political parties
• Groups can only bring action when their rights as an organization are
violated
o E.g. Liberty v UK – NGO claimed Art 8 violation in interception of
its communications
• Person = unborn foetus = unresolved due to regional/religious
sensitivities (Vô v France)
• Applicant may be indirect victim in exceptional circumstances (e.g. family
members in right to life cases where victim dead)
• Applicants may be persons without close relative status very
exceptionally where egregious violation of ECHR (Centre for Legal
Resources on behalf of Valentin Campeanu v Romania – death of 18yo HIV
positive + severe mental disability in neuropsychiatric hospital)
© Liam Porritt 2020 2
Public authority
• Claims under HRA 1998 must be made against a public authority, per s
6(1) HRA 1998.
• Here the police / prison / court / immigration officers are a core public
authority in accordance with the criteria set out by Lord Nichols in Aston
Cantlow v Wallbank: they have special powers, must act in the public
interest and are publically funded.
• Here, X is not a core public authority as they carry out functions of a
private nature (s 6(5) HRA 1998), and are not publically funded.
• We thus consider whether it is a hybrid public authority per the factors
set out by Lord Nichols in Aston Cantlow v Wallbank:
o Exercising statutory power
o Providing a public service
o Publicly funded in respect of function
o Taking place of government / local authority
Timing
• As no date is given, we assume that / Given the date [X], the action is
being brought within a year of X and Y’s releases, as required by s 7(5)(a)
HRA 1998, although the court may extend this this in exceptional
circumstances (s 7(5)(b) HRA 1998).
• They ought bring a claim as soon as possible.
Jurisdiction
• Under Art 1 ECHR, a person may bring a claim in respect of an event
occurring in a signatory state, (regardless of their nationality).
• Per Al-Skeini and Others v UK, in which the UK was deemed to have
breached ECHR when UK armed forces killed 6 Iraqi civilians, claims may
be brought where a signatory state has a sufficient degree of control
and authority over the individuals (and not merely the territory, as in
Bankovic v Belgium), as the UK had over these individuals in Basra.
• ECHR also applies to all British servicepeople (Smith, Ellis and Allbutt v
MoD).

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