Tutorial 7 – Nature and Sources of Human Rights
Common law fundamental rights
R (Daly) v Home Secretary
Home Secretary's blanket policy requiring correspondence between a prisoner and his
legal advisers to be examined in the prisoner's absence was unlawful
argued that a blanket policy requiring the absence of prisoners when their legally
privileged correspondence is examined infringed the fundamental right to legal privilege
of all prisoners to an unnecessary and impermissible extent; a basic right recognized
both at common law and under Art. 8 of the European Conventon of Human Rights
(setting out the right to privacy and correspondence).
HofL - any prison sentence inevitably restricts the rights of the imprisoned person in order to
punish that person and protect the public. However, some rights survive, and may even be
strengthened due to the lack or limitaton of other rights, such as the right of access to a court,
the right of access to legal advice, and the right to communicate confdentally with a legal
advisor. He went on to say that these rights may only be restricted through clear and express
wording, and even then, only in so far as reasonably necessary to achieve the aim that justfes
said restricton.
Q) did it consttute an infringement of the right to legal privilege? Yes
Q) could infringement of a prisoner's right to privileged legal correspondence could be justfed
as a necessary and proper response to the acknowledged need to maintain security, order, and
discipline in prisons and to prevent crime. The court agreed that the policy is necessary when
coupled with the fact that prisoners are ofen manipulatve and seek avenues to exploit to their
own advantage. However, it ultmately stated that the policy, in its current form, cannot be
justfed as there is no reason to routnely exclude all prisoners.
The court concluded by statng that it reached the fnal judgment through applying the common
law principles in an orthodox fashion, but that the same result can be achieved through reliance
on the European Conventon on Human Rights.
R (Osborn) v Parole Board
The Supreme Court gave guidance about the circumstances in which the Parole Board was
required to hold an oral hearing in order to comply with its common law duty of fairness and the
European Conventon on Human Rights 1950 art.5(4)
Concerned when determining a prisoner's applicaton for release or transfer to open prison
conditons.
Circumstances:
1) important facts were in dispute
2) an oral hearing was necessary to enable the prisoner to put his case efectvely
3) it would be unfair for a decision to be made on the papers
4) the board needed it to make an assessment of risk.
By not ofering oral hearings in the instant cases, there was a breach
A breach would not normally result in damages unless the prisoner had sufered a consequent
deprivaton of liberty
Common law fundamental rights
R (Daly) v Home Secretary
Home Secretary's blanket policy requiring correspondence between a prisoner and his
legal advisers to be examined in the prisoner's absence was unlawful
argued that a blanket policy requiring the absence of prisoners when their legally
privileged correspondence is examined infringed the fundamental right to legal privilege
of all prisoners to an unnecessary and impermissible extent; a basic right recognized
both at common law and under Art. 8 of the European Conventon of Human Rights
(setting out the right to privacy and correspondence).
HofL - any prison sentence inevitably restricts the rights of the imprisoned person in order to
punish that person and protect the public. However, some rights survive, and may even be
strengthened due to the lack or limitaton of other rights, such as the right of access to a court,
the right of access to legal advice, and the right to communicate confdentally with a legal
advisor. He went on to say that these rights may only be restricted through clear and express
wording, and even then, only in so far as reasonably necessary to achieve the aim that justfes
said restricton.
Q) did it consttute an infringement of the right to legal privilege? Yes
Q) could infringement of a prisoner's right to privileged legal correspondence could be justfed
as a necessary and proper response to the acknowledged need to maintain security, order, and
discipline in prisons and to prevent crime. The court agreed that the policy is necessary when
coupled with the fact that prisoners are ofen manipulatve and seek avenues to exploit to their
own advantage. However, it ultmately stated that the policy, in its current form, cannot be
justfed as there is no reason to routnely exclude all prisoners.
The court concluded by statng that it reached the fnal judgment through applying the common
law principles in an orthodox fashion, but that the same result can be achieved through reliance
on the European Conventon on Human Rights.
R (Osborn) v Parole Board
The Supreme Court gave guidance about the circumstances in which the Parole Board was
required to hold an oral hearing in order to comply with its common law duty of fairness and the
European Conventon on Human Rights 1950 art.5(4)
Concerned when determining a prisoner's applicaton for release or transfer to open prison
conditons.
Circumstances:
1) important facts were in dispute
2) an oral hearing was necessary to enable the prisoner to put his case efectvely
3) it would be unfair for a decision to be made on the papers
4) the board needed it to make an assessment of risk.
By not ofering oral hearings in the instant cases, there was a breach
A breach would not normally result in damages unless the prisoner had sufered a consequent
deprivaton of liberty
