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Archives for : April2014

The Human Rights Act: taking into account the decisions of the European Court

One of the ways in which the Human Rights Act 1998 operates is to oblige our courts to take into account the decisions of the European Court of Human Rights in Strasbourg. Note that the words are ‘take into account’ – this raises a question whether in any particular case the European Court case is binding or not, and to what extent this is affected by the doctrine of precedent. Previous case law has established that courts below the Supreme Court do still have to abide by clear and binding law which contradicts European Court case law. What about where it is not clear?

The Court of Appeal has recently reviewed this in the case of Hicks.[1] This was a decision about various detentions made on the day of the royal wedding in 2011. The detentions were to prevent a breach of the peace. The question was whether these were compliant with Article 5 because they were to prevent the commission of a crime.

The European Court in the case of Ostendorf v Germany[2] had expressed the view that Article 5(1)(c) only covered pre-trial detention where an offence had been committed. The Court of Appeal considered that this is not what Article 5(1)(c) says on a straightforward reading: it allows for the possibility of detention to prevent the commission of a crime and applies to it the safeguard that the purpose of the detention is to bring the detainee before the relevant legal authority promptly. The suggestion to the contrary in Ostendorf appears to contradict this wording and also to contradict other European Court case law. Thus, the Court of Appeal had to consider whether it was obliged to follow Ostendorf.

The Court held that the s. 2 to take into account decisions did not mean that every decision had to be followed. The UK would be bound to follow a decision given by a Grand Chamber as authoritative or a clear line of European Court authority unless it was clear that it had misunderstood or overlooked some significant feature of English law or practice which, properly explained, would lead to that decision being reviewed in due course when properly explained. Where, as here, there were mixed decisions, the UK courts would need to make a judicial choice about the scope of the relevant Convention Right. In the present case, the Court would not follow Ostendorf, which was not part of a line of clear and consistent European Court authorities and did not appear to be consistent with the wording of the Article itself, so it was able to hold that the detentions were compliant with Article 5.

The analysis here bears close attention for anyone looking at this area. The Court of Appeal ultimately did not follow the European Court; but it did quite definitely take it into account, and indeed treated it as persuasive precedent. This continues the trend of ensuring that the use of European Court case law is not automatic, but also is part of a robust dialogue between our courts and the Strasbourg court.


[1] R(Hicks) v Metropolitan Police Commissioner [2014] EWCA Civ 3

[2] Ostendorf v Germany 34 BHRC 738