Richard's Consti & Theory Blog

This is where I post my (fairly random) thoughts on issues I come across in Constitutional Law, and in Legal Theory more generally. I need to make clear that the contents of this Blog are no-one else's responsibility (except where law dictates), and that no trees died in the making of this part of the blogosphere. I may try to be witty ...

Sunday, July 23, 2006

Recent ECHR Decisions re UK

The ECHR's not been as quiet as it's seemed recently. In particular, it's given the following judgements against the UK:

  1. Keegan v UK (2006) (ECHR). It seems that the Keegans' house was in 1999 the object of a fairly violent Police search for an armed robber. The choice of their house was apparently a rather feeble mistake, and so / yet when the Keegans sued they were told that they had to show malice. They couldn't - and so lost. The ECHR found a breach of Article 8 - for the search - and Article 13 - for the difficulty of getting a remedy in damages, and awarded some of its own. This would seem a case where UK law had been incorrectly applied anyway - nowadays there would surely be a fault-based remedy.
  2. Saadi v UK (2006) (ECHR) - following R v S of S HD exp Saadi [2002] (HL). You'll recall that this was the Oakington litigation - about the Government's fast-track detention-for-decision process camps. The ECHR has - in effect - held the system itself to be OK under Article 5:1 ('versus illegal entry'), but that 76 hours to explain the detention to S's lawyer was too long for Article 5:2. As in Murray v UK (1996), the applicant wins on precisely the 'wrong' point: the Oakington system is (in effect) approved.

Note for worried Europeans: it's not that I think that your cases don't matter, it's just that they're rather difficult to translate across to UK law. For an example of how not to do that, see Mr Justice Sullivan's efforts in Jory v S of S LGTR (2002) a few years ago ....

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