Out of Sync?

One of the justifications for the Human Rights Act 1998 was that it saved the trouble of going to Strasbourg. After the Human Rights Convention had become enforceable in the courts of the United Kingdom, there was no need for claimants to take their cases to the European Court.

Indeed, there should now be no point in going to Strasbourg. Because the domestic judges are now bound by the same convention as the European judges and required to take account of the same jurisprudence, they should reach the same conclusions on any given case.

That, at least, is the theory. But it is beginning to break down. The latest example came yesterday, when the European Court found that stop-and-search powers under section 44 of the Terrorism Act 2000 breached article 8 of the convention, the right to respect for one’s private life. That argument had been dismissed by the High Court, the Court of Appeal and the House of Lords.

There was a similar ruling little more than a year ago in a challenge to the retention of DNA samples. And that was followed by an important case on the confidentiality of journalists’ sources.

In a commentary to be published later in Criminal Law Week shortly, James Richardson, the editor, says:

It should surely be a matter of serious public concern (and not only because of the huge cost of the litigation) that for the second time in just over a year (see previously S. v. U.K.), the unanimous conclusion of 10 of the most senior judges in this jurisdiction has effectively been trumped by the European Court of Human Rights;  and that is not to mention Financial Times Ltd and others v. U.K, in which the Strasbourg court disagreed with the unanimous view of four judges in this jurisdiction.  

Time, it might be thought, for a serious public debate:  is the domestic judiciary wilfully ignoring the Strasbourg jurisprudence, is the Strasbourg judiciary wilfully seeking to assert itself as a superior court or is the European jurisprudence so vague that any almost any answer is possible in any given case? 

Whatever the explanation, the man-in-the-street would surely take the view that something is seriously amiss, whether with the domestic courts or with the Strasbourg court.

Quite right.

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