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10 Cards in this Set

  • Front
  • Back
What is stated under section 2 on the HRA?
a court determining a question which has arisen in connection with a convention right must take into account any judgement, decision, declaration or advisory opinion of the ECHR.

HOWEVER, they are not bound by it.
What did Lord Bingham say in Ullah v Special Adjudicator?
Lord Bingham said "In the absence of some special circumstances, the court should follow any clear and constant jurisprudence of the strasbourg court. The duty of the domestic courts is to keep pace with the strasbourg jurisprudence as it evolves over time: no more but certainly no less."
What does Roger Masterman say on the subject of Strasbourg jurisprudence?
"the potential for UK courts to engage in a meaningful dialogue on the scope of convention rights has been restricted by the general tendency to 'take their lead from strasbourg.'
Was is shown in Aston Cantlow, regarding the purpose of section 2?
Its purpose is not to enlarge the rights/remedies offered at Strasbourg, but to ensure that these rights and remedies can be enforced by the domestic courts.
What does Masterman argue about the minimalist approach taken in Ullah?
It does not allow domestic courts to expand the ambit of a convention right where clear Strasbourg jurisprudence stands in the way- creates tension with the status of the HRA as a 'constitutional statute'
Which case displays a retreat from the general rule and what happened?
Animal defenders international
-They submitted a television advert to the broadcast advertising clearance for approval- they declined the approval as it amount to 'political' advertising and was therefore prohibited by the communications act 2003.
-ADI sought a section 4 declaration that it was incompatible with its right to freedom of expression under art 10 ECHR.
-The HL found that a ban on political speech could be justified under article 10- Lord Bingham held that as there was no uniform european consensus.
-Baroness Hale- The judgements of European Courts are not binding on domestic courts. They constitute very important material that must be taken into account, but they are not bound by it.
What was the principle applied in Re P?
-UK courts are not bound by decisions of Strasbourg. Their first duty is to give effect to the domestic statute according to what they consider its proper meaning to be.
-Where the jurisprudence is clear and of particular authority, it may be treated as, in effect, binding.
-Where there are 2 conflicting Strasbourg precedents, the UK has the discretion to follow whichever one it wants, even in it is not the most recent.
What was the decision in R v Horncastle?
The supreme court ruled that the ECtHR decision in Al-Khawaja should not be followed as it would have failed to take account of the fine balance struck in the Criminal justice act 2003, between the rights of the victim and the defendant.
What principle was established in Kay v Lambeth?
-In the event of a conflict between a domestic, and later Strasbourg ruling, lower courts are bound by the domestic ruling.
-This is in compliance with the common law doctrine of precedent which is fundamental to the British legal system.
Which case displays the Court of Appeal's approach to following HL/ its own precedent.
RJM v Secretary of state for work and pensions

-If a HL ruling conflicts with a ECtHR ruling, then the court of appeal should follow the HL decision.

-However, if one of it's own previous decisions conflicts with one of the ECtHR, then it should be free (but not obliged) to depart from its own precedent.