Facts: A transsexual female married a man and sought a declaration from the court confirming their lawful marriage. The Matrimonial Causes Act 1973 states that a marriage may be entered into as between a “male” and “female” only – something which could not take into account gender reassignment, as is the case here. The court therefore refused to issue the declaration: since the transsexual female was, at birth, classified male, there could be no lawful recognition of the marriage.

Held: The Court of Appeal and House of Lords dismissed the appeals. However, in recognising that the primary legislation deprived the claimant’s right to marriage (Article 12 ECHR) the House of Lords issued a declaration of incompatibility under s4 HRA 1998

• So, the outcome of the case is a declaration: but not the one sought by the claimant (she wanted a declaration giving effect to lawfulness of her marriage). Instead, a declaration of incompatibility was made to Parliament

Facts: The Rent Act 1977 provided for the succession of certain types of tenancy to surviving spouses defined as those living with the tenant “as his or her wife or husband.” (Schedule 1, paragraph 2(2)). The tenant in this case died and his gay partner sought to succeed to his deceased partner’s tenancy under the Act in defence to possession proceedings brought by the claimant (i.e. the landlord of the property)

Held: The trial judge did not recognise Godin-Mendoza’s succession to the tenancy. However, the Court of Appeal allowed an appeal by offering a rights-compatible reading of the Rent Act 1977 (i.e. they read the Act as being compatible with the ECHR under section 3 of the HRA 1998). The House of Lords agreed with this.

Facts: The appellants were convicted of serious criminal offences. The courts admitted into evidence some statements made by persons who were not called as witnesses. The convictions were, to a decisive extent, based on these statements

⇒ European Court of Human Rights case law has previously stated that proceedings in this way violates Article 6 ECHR (right to fair trial) where the statement admitted is the sole or decisive evidence against the defendant (Doorson v Netherlands (1996))

Held: It was held in this case that “there [are] rare occasions” (like in this case) about whether “a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process”. If there is such a case “it is open to [the Supreme Court] to decline to follow the Strasbourg decision” and allow “the Strasbourg court to reconsider” their decision (Lord Philips)

⇒ In the aftermath of this case, Al-Khawaja and Tahery v UK (2011) made a change to Strasbourg case law: ‘where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6’

• In other words, the Strasbourg court accepted the invitation to a dialogue with the UK court and modified its case law

Facts: Malone accused the government of authorising police tapping of his telephone without legal authority. Malone was accused of handling stolen goods and the police said the phone tapping was necessary. He brought an action against the police seeking a declaration from the court that the phone tapping done by the police in relation to their investigations was unlawful. The claimant argued, inter alia, that the phone tapping was done contrary to Article 8 of the European Convention on Human Rights (i.e. the right to privacy)

Held: The court refused to grant such a declaration.

• Declarations could only be made on matters of English law – not international law. The ECHR, at the time, was not part of English law
• The court was firmly applying the dualist approach between domestic law and international law and respecting the doctrine of separation of powers

⇒ Malone took his case to the European Court of Human Rights who decided that the lack of legislative regulation on phone tapping breached Malone‘s Article 8 rights (Malone v United Kingdom (1984)) → so he was correct in his legal analysis but it was not an argument he was allowed to make domestically

• As a response, Parliament enacted the Interception of Communications Act 1985, putting phone tapping on a more comprehensive statutory footing

Facts: The defendant was charged with rape and sought to rely upon Article 6 ECHR (right to a fair trial) so his counsel would be entitled to ask the complainant questions as to her sexual history. Section 41 of the Youth Justice and Criminal Evidence Act 1999 provided for a limited right to ask questions relating to events “at or at the same time as the event which is the subject matter of the charge.” The Crown Court followed the statute and prevented the defendant’s counsel from asking questions about her sexual history.

Held: The case went to the House of Lords and they held in favour of the defendant

• They said that the Crown Court should have given effect to the right contained in Article 6 of the ECHR by interpreting the domestic legislation as compatible with that right
• “It will sometimes be necessary to adopt an interpretation which linguistically may appear strained. A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so” (Lord Steyn)
• Therefore s41 of the Act should be subject to Article 6 ECHR and and “on this basis, a declaration of incompatibility can be avoided.” (Lord Steyn)

Facts: Acting under a statutory power, the Secretary of State issued a directive banning the broadcast (on TV and radio) of any member of Sinn Féin, Republican Sinn Féin, or the Ulster Defence Association. This ban applied to, amongst others, the democratically elected MP for Belfast West, Gerry Adams. The claimants were journalists wishing to broadcast an interview with Adams and others. They sought a judicial review of the Secretary of State‘s discretion to ban the broadcasts

⇒ The claimants based their arguments on the grounds of irrationality and proportionality. They also argued that the power was exercised unlawfully; since the power was one conferred by Parliament, the presumption should be that the power would be used in a way compatible with the UK‘s international obligations—in particular, Article 10 of the European Convention on Human Rights (i.e. the right to freedom of expression)

• Note: as this case was heard prior to the HRA the ECHR had not actually been incorporated into UK law at this point

Held: The court disagreed with the claimants arguments: they said that “if the Secretary of State was obliged to have proper regard to the [ECHR] (i.e. to conform with Article 10) this inevitably would result in incorporating the Convention into English domestic law by the back door” (Lord Ackner)

• This case shows us that, without the availability of a positive ‘right‘ to free speech, it is difficult for the common law to protect free speech