12th Mar 2010 | Articles

Rowan PenningtonBenton examine the judicial pecking order

When Strasbourg speaks

Rowan Pennington-Benton examine the judicial pecking order

UK courts are required to “take into account” Strasbourg jurisprudence under s 2(1) of the Human Rights Act 1998 (HRA 1998). In R (Alconbury Developments Ltd) v Secretary of State for the Environment [2001] UKHL 23, [2001] All ER (D) 116 (May) Lord Slynn famously held that UK courts should “in the absence of some special circumstances, follow any clear and consistent jurisprudence of the ECtHR”[20]. The possibility of declining to follow Strasbourg case law has been consistently and expressly preserved in successive judgments. In practice however the courts have been extremely reluctant to exercise that right, leading some including judges to start talking the language of binding precedent.

Professor Jane Wright suggests that this practice is justified given that the ECtHR does not lay down exacting rules, but instead “embodies very general principles which have to be mediated into nationallegal cultures” (Public Law (2009), Jul, 595616). Recent case law disputes this account. One notable example is A v UK (2009) 49 EHRR 29, [2009] All ER (D) 203 (Feb), where the ECtHR held that the detention of terrorist suspects based “solely or to a decisive degree on closed material” always amounts to a breach of procedural fairness as guaranteed by the European Convention on Human Rights) (ECHR) [220]. This was so irrespective of domestic exigencies and procedural safeguards such as the use of special advocates and private hearings questioning the veracity of the evidence. The Strasbourg Court is clearly prepared then to lay down rigid and specific rules to be applied by the domestic courts.

Binding precedent?

The response to A v UK by the House of Lords in Secretary of State for the Home Department v AF (No 3) [2009] 3 All ER 643 is illuminating. The case concerned a challenge to control orders imposed on terrorist suspects, based, “solely or to a decisive degree” on closed evidence which the controleehad not had the opportunity to properly challenge. Although an earlier ruling of their Lordships had preferred a more flexible approach, the court unanimously followed A v UK, finding that there had been a breach of Art 6 right to a fair trial.

Lord Hoffman felt that the ECtHR decision was “wrong and that it may well destroy the system of control orders which is a significant part of this country’s defences against terrorism” *70+. Nonetheless, he held that the domestic courts had “no choice but to submit”. Lord Carswell acknowledged that “not all may be persuaded that the Grand Chamber’s ruling is the preferable approach” *108+. Nonetheless, he too felt bound, as did Lord Roger who stated “we have no choice…Strasbourg has spoken, the case is closed” [98].

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