Helga Law Journal - 01.01.2021, Blaðsíða 150

Helga Law Journal Vol. 1, 2021
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International Legal Research Group
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of the statute that answer the question are ‘take into account,’ the statute does
not require the UK courts to follow all ECtHR decisions blindly.
The mirror approach that was once advocated by members of the judiciary,
such as Lord Rodger, who noted that in AF (No 3) that “Strasbourg has spoken,
the case is closed”123 and Lord Hoffman who further noted that the “UK is
bound by the Convention, as a matter of international law, to accept the decision
of the ECtHR on its interpretation”124 is incorrect. Instead, the British Courts
have transitioned into the ‘partial-mirror’ approach noted by Lord Bingham in
Ullah.125 Lord Bingham noted that the courts should follow the clear and
constant jurisprudence of the Strasbourg court in the absence of special
circumstances.
Lord Neuberger further supports this approach in Pinnock v Manchester City
Council noting that the British courts “should usually follow a clear and constant
line of decisions by the European Court...but we are not actually bound to do
so.”126 The UK Courts have now reached a point in which they are fully capable
of departing from ECtHR decisions when special circumstances arise.127
Occasionally, the ECtHR provides domestic courts with the ability to depart
from its persuasive jurisprudence. In many cases, the ECtHR provides states with
a ‘margin of appreciation’ which relaxes the requirement to follow ECtHR
reasoning by providing states with the ability to balance rights with domestic
policy. For example, in Handyside v UK the applicant was convicted in England
under the Obscene Publications Act 1959 for publishing a book aimed at
children with explicit and obscene materials. The Court held that the domestic
margin of appreciation embraced this case and was best left to contracting states
to decide if the materials were permissible.128 Another example of an issue
covered by the margin of appreciation is the withdrawal of life-sustaining
treatment, this is displayed in Gard and Others v UK. The ECtHR states that
“where the case raises sensitive moral or ethical issues, the margin of appreciation
of the domestic authorities will be wider.”129

123 AF v Secretary of State for the Home Department [2010] 2 A.C. 269, 366.
124 ibid 356.
125 R (Ullah) v Special Adjudicator [2004] UKHL 26.
126 Pinnock v Manchester City Counil [2011] UKSC 6.
127 For an example see Horncastle: Article 6 of the European Convention on Human Rights guarantees
a fair trial. In cases where a defendant’s conviction is solely, or to a decisive extent, on statements
from an absent witness, the ECtHR has ruled as a violation of the ECHR. In Al-Khawaja v UK, the
chamber of the ECHR held that the use of a dead victim’s witness statement to convict a man of
sexual assault was incompatible with his right to a fair trial. The appellants in Horncastle relied on the
‘sole or decisive’ rule applied by the ECtHR to claim that their convictions were unsafe. The Supreme
Court rejected this test as part of the Strasbourg jurisprudence. The Supreme Court noted that the
Criminal Justice Act 2003 contained provisions that render hearsay evidence from witnesses who are
dead, ill, missing or absent through fear admissible in court.
128 Handyside v UK, [1976] ECHR, no. 5493/72.
129 Gard and Others v UK [2017] ECHR, no. 39793/17.
3.3.2 When do the Courts Depart from the ECtHR Jurisprudence?
However, the answer to the question of what are the special circumstances that
result in the departure of ECtHR decisions is less clear. An example of this
special circumstance can be illustrated through Horncastle,130 which concerned the
admissibility of hearsay evidence. The Supreme Court noted, contrary to
Strasbourg jurisprudence, that “the provisions of the 2003 [Criminal Justice]
Act… strike the right balance between the imperative that a trial must be fair and
the interests of the victims.”131 Hence, some reluctance can be noticed when the
UKSC is confronted with the opportunity to side with the jurisprudence of the
ECtHR. More recently, the prisoner-voting controversy that was initiated
through the case of Hirst132 in 2005 continues; in 2016 in Millbank,133 the Court
reached the same conclusion.134 However, the UK has not followed suit and
continues the blanket ban on prisoners, so as to prevent the latter from exercising
their rights to vote.
3.4 What is the Impact of the European Convention on
Human Rights and the Case Law of the European Court
of Human Rights on the Right to Protest in Your Country?
There have been numerous cases concerning the right to protest that shaped the
way UK law treated civil liberties prior to the ratification of the ECHR (as well
as after it), thereby showing the development of the right. In O’Kelly v Harvey135
it was deemed by Law C that the defendant was “justified in taking the necessary
steps to stop and disperse [the meeting of the plaintiff]”136 even affecting
individuals not potentially involved in a breach of peace. Almost 30 years later,
Dicey stated that ‘an otherwise lawful’ meeting may become the opposite if there
is a suspected breach of peace.137 In Michaels v Block,138 the court cited Cicero’s
maxim ‘salus populi suprema lex’ (‘the safety of the state being the highest law’)139

130 R v Horncastle & Others [2009] UKSC 14.
131 ibid [108].
132 Hirst v The United Kingdom (No2) [2005] ECHR 681. The British government has enforced a blanket
ban on convicted prisoners’ voting, and the ECtHR has made it clear that it is “incompatible with
Article 3 of Protocol 1 to the ECHR. Yet the British Prime Minister has insisted that the issue is for
‘Parliament to decide, not a foreign court’,4 British Members of Parliament having voted to
reject Hirst back in February 2011.” Ed Bates, ‘Analysing the Prisoner Voting Saga and the British
Challenge to Strasbourg’ [2014] 14(3) Human Rights Law Review 503.
133 Millbank and others v The United Kingdom [2016] ECHR 595.
134 “[The Court] holds that these applications disclose a breach of Article 3 of Protocol No. 1
concerning the ineligibility to vote in elections,” Ibid.
135 [1882] 10 LR Ir 287.
136 ibid.
137 Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (8th edn Macmillan
1915) 174.
138 [1918] 34 TLR 438.
139 ibid 438.