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Human Rights v Judicial Review

Human Rights v Judicial Review

Postby Spankymonkey » Fri Sep 16, 2016 2:06 pm

I've noticed that most human rights claims are brought via Judicial review, but I cannot see what the benefit is by doing so.

For instance, there were proceedings concerning a harassment warning that was issued unfairly to a woman who was alleged to have harassed her neighbour with one comment. She complained and then appealed to the police against the warning but to no avail. She then brought a judicial review against the decision under section 6 of the HRA in respect of her article 8 rights not to delete the warning, which was partly successful.

But suppose more than 3 months had elapsed since her appeal. She wouldn't have been able to apply for judicial review, so would there have been anything at all preventing her from just making a human rights claim in the county court. In fact, why not do that in the first place without even wasting time appealing to the police?

Not only do you have an extra 9 months to make a human rights claim, you can do so in the county court, unlike with JR which will only be heard in the High Court. Also, you have to have exhausted all statutory channels of appeal before a JR will be considered, but that is not so with the Human Rights Act.

I cannot see how JR would offer any greater remedy than that of a straightforward human rights claim either. So again, why opt for judicial review over a straightforward human rights claim?
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Re: Human Rights v Judicial Review

Postby dls » Fri Sep 16, 2016 9:18 pm

I am sorry but the word 'most' does not work. Many claims are brought as JRs, but human rights issues arise in very many and very different ways, and I cannot see how a calculation could be properly made - and certainly not easily.

A judicial review is (broadly) a challenge to a particular decision by a public authority.

Human rights law (broadly) regulates the interaction between individuals and the state.
There is a fundamental sympathy, but they meet (generally) as a matter of procedural necessity or convenience.
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Re: Human Rights v Judicial Review

Postby Spankymonkey » Mon Sep 19, 2016 10:42 pm

I understand what you mean David, but I was only referring to the example of retaining and disclosing information in relation to an unfair harassment warning.

Would it not be simpler to bring an action in tort for the newly established misuse of private information, rather than go the cumbersome route of judicial review?
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Re: Human Rights v Judicial Review

Postby atticus » Tue Sep 20, 2016 6:05 am

You gave the example of a person aggrieved by the issue of a harrassment warning. I find it hard to see how the tort you describe would assist in achieving that objective. It is also hard to see how the issue of a harrassment warning by the police can be a misuse of private information.
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Re: Human Rights v Judicial Review

Postby dls » Tue Sep 20, 2016 1:35 pm

Would it not be simpler to bring an action in tort for the newly established misuse of private information, rather than go the cumbersome route of judicial review?


Almost anything would be simpler than an action for misuse of private information. In this particular context, the idea would be rather more complicated, and there would have to be some element (not yet disclosed) which would suggest that any misuse of private information has been undertaken.
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Re: Human Rights v Judicial Review

Postby Spankymonkey » Wed Sep 21, 2016 8:27 pm

It is also hard to see how the issue of a harrassment warning by the police can be a misuse of private information.


The untrue and unsubstantiated allegations that gave rise to the harassment warning are subsequently disclosed to the DBS during an Enhanced record check by an errant and negligent police officer. Potential employer sees the damaging information and rejects the applicant. No claim can be brought under the data protection act due to the section 29 exemption.

R (on the application of) v The Association of Chief Police Officers of England, Wales and Northern Ireland & Ors [2013] EWCA Civ 192 (14 March 2013)

http://www.bailii.org/ew/cases/EWCA/Civ/2013/192.html
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Re: Human Rights v Judicial Review

Postby atticus » Wed Sep 21, 2016 8:43 pm

But that was a Human Rights Act case! In fact an appeal in a judicial review case.

And your reference to s29 DPA appears to support my point.
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Re: Human Rights v Judicial Review

Postby dls » Thu Sep 22, 2016 5:38 am

The untrue and unsubstantiated allegations that gave rise to the harassment warning are subsequently disclosed to the DBS during an Enhanced record check by an errant and negligent police officer. Potential employer sees the damaging information and rejects the applicant. No claim can be brought under the data protection act due to the section 29 exemption.


The whole point of the legislation is exactly that unsubstantiated allegations are used to stop people getting jobs. I think the legislation unfair and illogical, but your chances of challenging such a disclosure are very slight.

There are occasional successful challenges. You should read up on them.
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