Human Rights Violation in UK Law

But what the appellants have been deprived of here – assuming always in their favour that their section 4(b) constitutional right has been breached – is the opportunity in recent years to bring discrimination complaints against private persons.

After all, the 1993 Act confers on asylum seekers fuller rights than they had ever previously enjoyed, the right of appeal in particular. And yet these Regulations for some genuine asylum seekers at least must now be regarded as rendering these rights nugatory. Eitherthat, or the Regulations necessarily contemplate for some a life so destitute that to my mind no civilised nation can tolerate it.

In this area difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention.

In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights. If it does not do so there is at least a possibility that the case will go to that court which is likely in the ordinary case to follow its own constant jurisprudence.

Every court has an inherent power and duty to prevent abuse of its process. By recourse to this principle courts ensure that executive agents of the state do not misuse the coercive, law enforcement functions of the courts and thereby oppress citizens of the state. It is simply not acceptable that the state through its agents should lure its citizens into committing acts forbidden by the law and then seek to prosecute them for doing so.

The case of Teixeira de Castro v Portugal (1998) 28 EHRR 101 concerned a conviction for trafficking in heroin, based mainly on statements of two police officers. The European Court of Human Rights held that the necessary inference from the circumstances was that these officers had 'exercised an influence such as to incite the commission of the offence'. The court's statement of principle, at p 115, in para 36, is not divergent from the approach of English law.

There are no standard rules, but the fact that the injured party has suffered damage will obviously militate in favour of a monetary award. In assessing compensation in such a case, the common law measure of damages will be a useful guide, but no more than a guide (just as an award by the Strasbourg Court will not necessarily be the same as the measure of damages at common law for conduct amounting to a tort).