Scottish Government

THE USE OF HUMAN RIGHTS LEGISLATION IN THE SCOTTISH COURTS

CHAPTER THREE: TRENDS IN HUMAN RIGHTS CASE LAW

3.1 This chapter presents a doctrinal analysis of the human rights issues raised in reported cases decided by the Scottish courts since the devolution of executive and legislative power in May and July 1999. The purpose of this chapter is to present a concise picture of the kinds of legal issues relating to human rights with which the Scottish courts have been dealing. More particularly, it involves:

• a survey of reported cases, attempting to trace trends and developments in human rights case law;
• discussion, where appropriate, of any apparent differences in approach between the Scottish courts and the Strasbourg Court and Commission; and
• indication of issues of potential difficulty where challenges to domestic law and practice on grounds of incompatibility with ECHR jurisprudence might have been expected to arise but have not yet done so.

3.2 With regard to the third bullet point, we identified issues as potential challenges worth discussing if they met any of the following criteria. First, that there was an argument based upon existing Strasbourg case law that existing arrangements may not be Convention-compliant. Second, that challenges under the Convention have been made elsewhere in the UK and the laws/policies/practices in question are sufficiently similar. Third, even where the first two points do not apply, that the issue is a recurring one and there is something about the issue that leads us to think that individuals may be expected to exploit any possible avenue of legal redress (for example, deaths in custody).

3.3 The analysis is presented under six headings which (generally) follow the order of guarantees contained in the European Convention on Human Rights:

• Physical integrity - the right to life; protection against torture, etc, and deprivation of liberty : Articles 2-5 and Protocol 6
• Fair administration of justice: Articles 6 and 7
• Private and family life; and education: Articles 8, 12 and Protocol 1, Article 2
• Civil and political freedoms: Articles 9-11
• Property: Protocol 1, Article 1
• General provisions: Articles 14 and 17

3.4 We emphasise that this chapter presents a concise summary of the case law. This is not a treatise on human rights law and the report is intended to be accessible to a wide readership. Accordingly, there is no attempt to provide a fully comprehensive discussion of the legal human rights issues that have arisen to date. For similar reasons, we have cited cases selectively in this chapter rather than providing a citation to support each statement in the text. We have cited cases which seem significant to us for a variety of reasons, and our judgments as to which cases are worth citing are inevitably subjective.

PHYSICAL INTEGRITY: ARTICLES 2-5 AND PROTOCOL 6

Article 2 and the right to life

3.5 The cases indicate that limited use has been made of Article 2 arguments. Neither the quantity nor the range of arguments raising Article 2 arguments found in England and Wales is replicated in Scotland.

3.6 The only context in which Article 2 arguments have been used is the expulsion or deportation of individuals from the United Kingdom where it has been argued that returning them to a particular country would give rise to a real risk of death. These arguments have often been raised along with Article 3 submissions concerning the risk of infliction of torture if the person were returned to the country in question. These cases fall into three groups:

• cases concerning threatened return to another European state which is bound by the provisions of the ECHR and of the EU Dublin Convention of 1990, ²⁰ and in which there is a strong indication that the Dublin Convention (or the Immigration Act 1971) is of greater weight than the ECHR in determining challenges to removal;
• cases disposed of on the grounds that there is no well founded fear of death or persecution (and thus the Article 2 test is not satisfied); and
• cases disposed of on procedural grounds (for example, that tribunals had not properly considered the arguments raised and that leave to appeal should have been granted).

3.7 In general the Court of Session has disposed of these cases in a manner consistent with the Strasbourg case law. The one possible exception was Jalloh v Secretary of State for the Home Department²¹ which rejected a challenge to removal on the ground - contrary to Strasbourg case law - that removal to another state bound by the Convention absolves a state from considering whether its obligations under the ECHR have been met.

3.8 Two further areas which have been important in the Strasbourg case law, and which might have been expected to give rise to cases in the Scottish courts, are the responsibility for use of lethal force by state officials, and the positive duties of the state to safeguard life against threats from non-state actors. ²² As to the first, Article 2 has been held to require a careful assessment of the following: the actual use of force, the prior training of officials and the planning of any operation. Article 2 also imposes a positive obligation to carry out an effective investigation of the circumstances surrounding any particular instance of the use of lethal force. As to the second, Article 2 imposes additional positive duties upon a state to take appropriate steps to safeguard life through the effective investigation and prosecution of the intentional or reckless taking of life and the taking of reasonable steps to ensure the proper protection of individuals who face imminent threats of violence from others. These key aspects of Article 2 protection simply have not been raised by litigants in Scotland, although these issues (and others such as the prevention of inter-prisoner violence and detainee suicides) may arise in future.

Article 3 and the prohibition of torture and inhuman or degrading treatment or punishment

3.9 Article 3 of the Convention requires that domestic law protect individuals against ill-treatment whether inflicted by state officials or by private parties. One of the conditions that must be satisfied in order to establish a violation is that the treatment must be sufficiently serious. The Strasbourg case law indicates that action consequent upon the taking of criminal or disciplinary proceedings (including the imposition of a 'punishment part' of a life sentence) will generally be deemed not to satisfy this test.

3.10 Scottish cases in which Article 3 arguments have been made concern:

• preventing risk to health though the removal of basic necessities of life (in a series of cases in which a city council sought the eviction from their homes of asylum seekers after their claims for asylum had been rejected);
• conditions of detention in Scottish prisons involving 'slopping out'; and
• deportation or extradition to a country where there is a real risk of ill-treatment at the hands of state officials (including the risk of judicial execution if convicted of an offence) or of private parties.

3.11 With the limited exception of one case involving 'slopping out' (the one case decided to date being Napier v The Scottish Ministers²³), these arguments have not succeeded. The first set of cases involves questions which have not yet been determined in Strasbourg case law. In the third, the comparative importance of Article 3 arguments in disposals is not always clear from the judgments in which Convention arguments are considered alongside other legal issues which then become the primary reason for disposal, for example, the question of whether the 1951 Refugee Convention has been satisfied in the case of removal of an asylum seeker.

3.12 The challenge to slopping out has the potential to affect large numbers of prisoners in Scottish Prisons. However, although the argument that slopping out constituted inhuman and degrading treatment in terms of Article 3 succeeded in Napier, it is not clear that it will succeed in all cases, as this case appeared to turn in part on facts specific to the prisoner in question. Lord Bonomy did not decide that slopping out was a violation of Article 3 per se. Napier is under appeal and it is perhaps unlikely that the Inner House will decide that slopping out is necessarily a violation of Article 3. Strasbourg case law suggests that cases concerning the adverse effects of prison conditions should turn on the cumulative effect on each prisoner as assessed by the length of the detention and impact (if any) on the prisoner's health. In Article 3 jurisprudence, the threshold test is relatively high, and not only the nature of the accommodation but its effects and duration are taken into account. It is not clear what line the Strasbourg Court would take if faced with such challenges, but a reasonable interpretation of recent decisions would suggest that the detention conditions endured in Scottish prisons would fall short of the minimum level of severity required to found a violation of Article 3. ²⁴

3.13 A number of other Article 3 challenges to existing practices which have been made in England and Wales have not yet been mounted in Scotland. The positive obligation on the part of social work authorities to ensure that children at risk of abuse or neglect are properly protected (as confirmed in a recent Scottish case determined by the Strasbourg Court, E v United Kingdom²⁵) is not reflected in cases in the Scottish courts. Similarly, there has been no consideration of whether the continuation of the possibility of corporal punishment of children by parents and guardians (who can rely on the defence of 'reasonable chastisement' in a prosecution for assault) is a violation of Article 3. (We were aware of one case which attracted some press commentary, but which does not appear in our database, which could well have provided an opportunity to review this defence.) Section 51 of the Criminal Justice (Scotland) Act 2003 now provides that certain sorts of punishment are not legitimate corporal punishment, and lists factors the court must take into account in determining the charge in other cases, but it remains to be seen whether Scots law will be deemed fully compliant with Article 3. ²⁶ Nor has there has been any attempt to challenge the compatibility of existing police complaints systems with the Strasbourg Court's expectations of an effective investigation of any arguable claim that an individual has been ill-treated.

Article 5 and deprivation of liberty

3.14 Article 5 protects liberty of person by insisting that any deprivation of liberty is lawful and in accordance with domestic procedures and is not arbitrary or otherwise motivated by bad faith. The impact of this guarantee on domestic law and practice has already been considerable as many of the violations of this much used provision established before the Strasbourg court have concerned the United Kingdom. The Scottish Executive took pre-emptive action to head off Article 5 challenges by introducing legislative proposals which ultimately became the Bail, Judicial Appointments, etc (Scotland) Act 2000 and the Convention Rights (Compliance) Act 2001, and this may help to explain why there has been only very limited reliance on Article 5 in Scottish cases since the introduction of the human rights legislation.

3.15 The reported cases have concerned both questions of the scope of Article 5 and the specific rights conferred on persons whose detention is itself lawful in terms of Article 5.

The scope of Article 5

3.16 The cases on the scope of application of Article 5 have raised three distinct issues:

• whether there has been a 'deprivation of liberty' through the imposition of bail conditions restricting movement;
• whether detention is lawful; and
• whether particular deprivations of liberty can be held to fall within one of the recognised categories of detention.

On the first issue, in McDonald v PF, Elgin,²⁷ the High Court of Justiciary decided that a bail condition that the accused reside at home 22 hours each day did not restrict movement to such a degree as to amount to a 'deprivation of liberty' in terms of Article 5. The decision is probably inconsistent with Strasbourg case law (although that case law itself is not always consistent on this point). ²⁸

3.17 As regards the second issue, lawfulness of detention, in Anderson v Scottish Ministers,²⁹ the Privy Council upheld the provisions of the Mental Health Public Safety and Appeals (Scotland) Act 1999 (the first Act passed by the Scottish Parliament) against a challenge that they were beyond the competence of the Scottish Parliament because inconsistent with Article 5. The Act provides for the continuing detention of persons in hospital where the Scottish Ministers are satisfied that detention is necessary to protect the public from serious harm. It is in practice used to ensure the indefinite detention of persons with psychopathic personality disorders who have committed crimes of violence, and ensures that such persons may be detained even where they are no longer treatable, a situation which under the previous law would have required their release. The Act had retrospective effect in that it applied to persons already detained in the State Hospital at Carstairs. The Privy Council approached the issue in a manner which sought to apply the essential spirit of Article 5 rather than answer the narrower question of whether retroactive amendment of the law was compatible, stressing that the protection of the community is a relevant consideration and that the legislation was consistent with Article 5. In another case, ³⁰ the court refused to accept that extradition proceedings in Portugal were irregular, and, thus, had resulted in unlawful detention in Scotland such as to prevent the continuation of a prosecution. The disposals in both these cases are consistent with Strasbourg case law.

3.18 It is the third of these questions under Article 5, namely whether detention is for one of the permitted reasons, which has given rise to case law of particular interest in the Scottish courts. The recognised grounds for loss of liberty in the text of Article 5 are: court-imposed detention (for example, after conviction or for the enforcement of a legal obligation); detention for the well-being of the individual and for the protection of society (including of those with mental health problems, drug addicts, and young persons in need of educational supervision); detention with a view to extradition; and detention as part of the criminal process following upon suspicion of involvement in criminal activity. In S v Miller,³¹ the court ruled that a secure accommodation order made under the Children (Scotland) Act 1995, following upon determination that a child had committed an offence, was regarded as falling under the heading of 'educational supervision', thus emphasising that juvenile justice proceedings are considered to be essentially welfare rather than criminal in nature. However, following a recent Strasbourg judgment, it is arguable that the court did not adequately explore the question of whether the detention of a child in secure accommodation, which contains other minors convicted by criminal courts of serious offences, could be treated as falling under the heading of educational supervision if the essential nature of the regime is punitive rather than educational. ³² In MacMillan, Petitioner, the court dismissed a challenge made by a convicted person to the revocation without notice of his licence and recall to prison. He had argued that he posed no risk to the community. However, the recall had been based in some measure on other charges for which trial was pending but for which the accused had not yet been convicted, and the reason for the court's disposal is not entirely clear. ³³

3.19 There is one group of cases in which the Article 5 points are not fully and clearly argued. These are cases challenging removal from the United Kingdom by the immigration authorities. It is not always clear if the argument being made is that Article 5 will be breached if the person is expelled, or that Article 5 is being breached because the person is in detention in Scotland. In some cases Article 5 points appear to have been abandoned because the detainee has been released since the case started. The latter argument - that expulsion from the UK would be a breach of Article 5 would in the right circumstances be valid argument. While Article 5 justifies detention with a view to deportation or extradition, Strasbourg jurisprudence also indicates that expulsion of an individual to a country where he or she will be detained following a conviction that was a "flagrant denial of justice" will breach Article 5. ³⁴

Specific rights conferred by Article 5

3.20 As well as determining when detention is permissible, Article 5 also confers certain rights on persons detained, including the right to be informed of the reasons for an arrest, the right to be brought promptly before a court and the right to take proceedings to review the legality of detention. These rights must be given to detained persons in order to ensure that detention is, and remains, lawful. Here the Bail and Judicial Appointments (Scotland) Act 2000 and the Convention Rights (Compliance) Act 2001 are relevant. The former removed several possible ground of challenge under Article 5 by removing the requirement to apply for bail, removing the exclusion of the sheriff from considering bail in the cases of persons charged with murder, and amending the provisions on appeals against refusal. The latter changed the rules governing the release of life prisoners in order to bring the arrangements for the release of adult mandatory life prisoners into line with those for other life prisoners. However, this pre-emptive action has not headed off all challenges. Cases have raised two issues:

• First, Burn, Petitioner³⁵ raised the question of determination of the sufficiency of the reasons for refusing bail. The court held that the prosecutor must provide sufficient general information relating to the particular case to allow a sheriff before whom a detainee is brought to consider the merits of any motion that the accused should be detained for further examination.
• Second, several cases have raised the issue of the review of continuing detention in the context of the release of life prisoners. ³⁶ The Convention's requirement of provision of an effective review of the lawfulness of the original detention, and of any continuing detention, applies to cases of life imprisonment. Where a distinction is made between the 'tariff', or punitive part of the sentence, and the 'risk' element which takes account of potential danger to the community, there is a right to seek review at reasonable intervals of whether the continuing detention can be justified. In several cases the provisions of the Convention Rights (Compliance) Act, which was applied to prisoners already serving life sentences, were challenged, primarily on the grounds that prisoners would have been eligible for consideration for parole at an earlier stage if the previous legislation had continued to apply to them. In one case the challenge was also on the ground that the length of the period was disproportionate. ³⁷ The challenge is considered further in respect of Article 7, discussed below.

Potential challenges

3.21 A number of Article 5 issues which might have been anticipated have not yet arisen in the Scottish courts. They include:

• The lack of clarity with which Scots law defines certain matters, for example, when a person can be said to be under arrest, and the test for establishing that conduct amounts to a breach of the peace.
• It is not clear how new developments in domestic law involving the introduction of electronic tagging in lieu of detention on remand will be classified. ³⁸
• The requirement under Article 5(3) that a person detained on suspicion of the commission of an offence is brought to court 'promptly' (that is, within 96 hours) may on occasion in Scotland not be met. As the European Committee for the Prevention of Torture noted in one of its reports, 'at least in theory, a person arrested very early on a Friday morning might not be taken before a court until the following Tuesday morning, were the Monday to be a court holiday.' ³⁹

FAIR ADMINISTRATION OF JUSTICE.

3.22 Article 6 of the European Convention on Human Rights is concerned with the fair administration of justice. It seeks to ensure that the adjudication of legal disputes satisfies the requirements of procedural fairness. The central importance of Article 6's guarantees of fair hearings is reflected in the volume and scope of applications in Strasbourg which exceed that for any other article. As we saw in Chapter two, Article 6 has also been the article most frequently cited in the Scottish courts.

3.23 The reported cases may be grouped under the following headings:

• the scope of Article 6 protection;
• the content of the fair hearing;
• access to a court;
• independent and impartial tribunal;
• public determination;
• trial within a reasonable time;
• the presumption of innocence;
• additional guarantees applying in criminal proceedings;
• prohibition of retroactive criminal penalties.

In this section, we do not distinguish between civil and criminal proceedings (other than in the final three headings which apply only to criminal proceedings), although the bulk of reported cases are indeed criminal.

Scope of Article 6 protection

3.24 The right to a fair hearing guaranteed by Article 6 does not apply to all legal proceedings. Article 6 applies only to proceedings involving the 'determination of… civil rights and obligations or of any criminal charge'. The meaning of these terms is clarified by the Strasbourg jurisprudence. Issues concerning the scope of Article 6 have arisen in a number of Scottish cases:

• Article 6 has been pleaded in a number of asylum and immigration cases. According to the Strasbourg jurisprudence, these and certain other public law issues fall outwith the scope of Article 6, a position which reflects the assumption that the phrase 'civil right' refers mainly to private law. However, in certain cases the Scottish courts have taken a broader view of the scope of Article 6 following the line adopted in English judgments ⁴⁰ and applied it in asylum cases.
• A complaint that restrictions on the availability of compensation under the criminal injuries compensation scheme were contrary to Article 6 was rejected but the complaint related to a decision taken before the Human Rights Act came into effect, and appears to have been rejected on the basis that the Act did not have retrospective effect, rather than on that basis that this was not a 'civil right' (although the outcome of the case under Article 6 would still have been similar, following Strasbourg case law).
• A handful of cases suggest that the determination of whether proceedings are criminal (important because the article imposes additional protections in criminal cases) is an area which requires further clarification. To give an example, the Scottish courts have confirmed that once the procurator fiscal has decided not to proceed with a charge against a child, subsequent proceedings under the Children (Scotland) Act 1995 are not criminal for the purposes of Article 6 as the reporter's actions are designed to provide for the child's welfare rather than to punish him. The extent to which this is in line with the Strasbourg approach may be doubted.

Substantive 'fair hearing' guarantees

3.25 The Strasbourg court has given substantial guidance on the meaning of the content of the fair hearing guarantee, that is to say, the precise procedural protections which it entails. The general approach of the Scottish courts has mirrored that of the Strasbourg court in that they have considered whether the proceedings as a whole, including any appellate proceedings, are fair rather than considering each stage of the procedure in isolation. Thus, defects at an earlier stage can be remedied by a later appeal or review. This has been the basis on which the courts have rejected claims that Article 6 was breached by a civil jury's assessment of solatium in a damages claim (juries do not give reasons for decisions), by the involvement of Ministers in determining planning applications, and by the procedures of professional disciplinary boards.

3.26 Moving on to the specific procedural guarantees implicit in Article 6, the reported cases have concerned the issues below.

• 'Equality of arms': the need for proceedings to be broadly adversarial in nature has been considered in a number of cases which highlight that the key requirement is whether each side has a real opportunity to make observations on the evidence or arguments adduced by the other side, and not the form in which such observations may be made. Other cases have explored the extent of the requirement of disclosure of evidence to allow the opportunity for the other side to the proceedings to respond effectively. Several of these cases were successful. For example, an appeal against conviction for breach of the peace and for "threatening the lieges with violence" by brandishing knives was upheld, based in part on arguments that a charge could be regarded as inferring personal violence only if it was libelled as an assault, and failure to do this had violated his right to a fair trial under Article 6. ⁴¹ In another case, the appellant alleged that the trial judge had misdirected the jury and had excluded questioning which was material to his defence, and further that the Crown's cross-examination had constituted an abuse of process and a breach of Article 6(1). However, the court quashed the conviction on the basis that it was contrary to the interests of justice to exclude questioning which was material to the appellant's defence, and that there had been a miscarriage of justice without the need to consider the Article 6 implications. ⁴²
• The importance of ensuring that each party has been accorded a proper opportunity to prepare and to meet the case presented by the other side to the proceedings has been stressed in a number of cases involving professional disciplinary tribunals. In one, it was suggested by the court that the professional body perhaps had not revealed the full basis of facts relied upon in disciplinary proceedings to the appellant, although this was not in itself the reason for quashing the decision of the disciplinary tribunal.
• Fair rules of evidence: the use of evidence obtained under ill-treatment or compulsion or in violation of the protection for self-incrimination unless an individual has been accorded adequate legal assistance during interrogation may be deemed unfair, but the Scottish courts have proved reluctant to accept that Convention tests have not been satisfied in a number of cases challenging aspects of Scots law of evidence.
• The giving of reasons: it is accepted that Article 6 generally requires the giving of reasons for decisions. However, the Scottish courts have rejected contentions that insufficient reasons had been given for certain decisions concerning licensing and property rights, and accepted that although juries do not give reasons for their decisions, the possibility of appeal against a jury's assessment of solatium addressed any possible defect in this regard.

3.27 The above gives an idea of the issues which have been raised under Article 6 fair hearing guarantees. However, in many cases it is difficult to assess the impact which arguments based on convention rights have had. Often the issue of Article 6 fairness is subsumed in discussion of domestic law principles so that it is not clear whether the convention argument made a difference to the outcome. On the whole, the approach of the Scottish Courts appears consistent with Strasbourg jurisprudence. However, the important case of Brown v Stott⁴³ has given rise to some controversy. That case concerned section 172 of the Road Traffic Act 1988 which makes it an offence for a vehicle owner not to give information to police as to the driver's identity if required to do so. This was held ultimately by the Privy Council not to violate Article 6, on the grounds that the right to silence and the right against self-incrimination were not expressly contained in the provision, and, so, were open to modification or restriction where this served a legitimate purpose and the means were proportionate. It has been forcefully argued that this reasoning is incompatible with Strasbourg case law, ⁴⁴ but on the other hand it has also been argued that the decision was correct. ⁴⁵

Access to a court

3.28 Restrictions on access to courts may trigger Article 6 claims. Cases in this area have focussed upon the following issues.

• Restrictions on access to a court for good cause: restrictions on vexatious litigants have been upheld. However, in another case, a challenge to an order to find 10, 000 caution for expenses as a disproportionate restriction on the defender's right of access to the court was successful. The immunity from suit of advocates against allegations of negligence in the conduct of an accused's defence was also justified on the grounds of public policy and not considered to be a violation of Article 6.
• Legal aid: Strasbourg jurisprudence makes clear that the right of access to a court may in certain cases involve an obligation to provide litigants with legal aid, however, there is no general obligation to provide legal aid across the board for all civil and criminal disputes. In S v Miller the Court decided that the structure of the children's hearing system in Scotland complies in all respects with Article 6 requirements except in relation to legal aid, the absence of which meant that a child was unable to represent himself properly at a hearing. The court noted that the Convention Rights (Compliance) (Scotland) Bill then before Parliament proposed to amend the existing legal aid legislation so as to include provision for children's hearings. In another case, the lack of legal aid before a professional disciplinary tribunal was found not in the particular circumstances to have caused any Article 6 violation, the court holding that while legal representation is an advantage, the lack of it does not necessarily deprive the petitioner of a fair hearing and the appropriate test is whether legal representation is indispensable.

Independent and impartial court or tribunal

3.29 There has been a series of cases based on the requirement of an independent and impartial tribunal, some of which have called into question structural aspects of the administration of Justice. Several of these cases have been successful to some degree.

• Temporary sheriffs: in the well known case, Starrs v Ruxton, ⁴⁶ the position of temporary sheriffs, appointed by the Lord Advocate for periods of one year, was found to be incompatible with Article 6 owing to their lack of security of tenure. This decision led to the abolition of the office of temporary sheriff and their replacement by part-time sheriffs enjoying greater security of tenure. In a number of subsequent cases ⁴⁷, challenges to convictions determined by temporary sheriffs were successful on the grounds that the Lord Advocate had no power to prosecute individuals before temporary sheriffs and that accused persons did not have sufficient knowledge to make an implied waiver of their right to an independent and impartial tribunal.
• Judges who have held executive office: the participation of a judge in determination of an issue concerning legislation which he had previously helped promote as Lord Advocate was considered as capable of giving rise to the appearance of bias. ⁴⁸
• Prior expressions of opinion by judges affecting judicial decisions: in Hoekstra v HMA (No 2),⁴⁹ accused persons claimed that they could not get a fair trial where the presiding judge (Lord McCluskey) had written a highly critical newspaper article concerning the European Convention on Human Rights. Whilst the court considered that no actual bias could be detected in the disposal of the case, the article 'would create in the mind of an informed observer an apprehension of bias on the part of Lord McCluskey against the Convention and against the rights deriving from it.'
• Membership of organisations: in one of a series of challenges to the composition of a court where the judges were members of a private society with restricted membership, the court accepted that a further hearing on this particular issue was required.

3.30 On the other hand, a number of other challenges have not succeeded:

• Temporary judges: the position of temporary Court of Session judges appointed for a three-year period by the Lord President, in contrast to that of temporary sheriffs, was considered sufficiently secure to satisfy Article 6. ⁵⁰
• District Court: The role of the assessor in the District Court was not inconsistent with Article 6. ⁵¹
• Members of children's hearings: it has been accepted that children's hearings meet the requirement of independence, although the panel members are lay persons without security of tenure.
• Licensing, etc., authorities: a number of challenges on the basis of alleged bias have been made to decisions by local authorities in licensing and adoption functions. Although such challenges have not succeeded, it is not always apparent that the Convention arguments were fully explored.
• Contempt of court: in some cases challenges have been made to a sheriff's power to punish prevaricating witnesses for contempt of court on the ground that the sheriff was in effect acting as both judge and prosecutor and so the appearance of an impartial and independent tribunal was lost. These cases have not succeeded, as the courts have ruled that judges in such instances are discharging a judicial role in assessing the evidence given in a trial, although a recent practice direction states that an individual facing an allegation of contempt of court should be entitled to legal aid.
• Jurors: allegations of bias on the part of members of a jury have been considered in a handful of cases, ⁵² but the approach adopted has perhaps lacked consistency. For example, in one case, as the jury was returning to court to announce its verdict of guilty, one of the jurors said in front of the others that she knew the appellant had been a shoplifter. The appeal court considered that the sheriff's remarks to the jury on this issue would have been insufficient to dispel legitimate doubts as to the jury's impartiality. This may be contrasted with another case in which arguments that one of the jurors in a trial knew the accused and was aware of his previous convictions (and further that this juror had a relative who had died in a drugs-related suicide where the offence concerned drugs offences) were considered not to found any bias against the appellant. Generally, the courts have taken a robust approach to the abilities of juries to set aside any personal bias or impressions gained from prejudicial pre-trial media coverage on the grounds that the time which elapses between publication and trial, as well as the manner in which a jury would be directed by the trial judge, would settle any doubt as to impartiality.

Public determination

3.31 Article 6 specifically requires a public hearing and that judgment be pronounced publicly. However, exclusion of the press and the public can be justified, 'in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.' In the context of media reporting of proceedings, the Court has held that the Contempt of Court Act 1981 should now be read in the light of Strasbourg jurisprudence which provides that exceptions to a broadcaster's freedom of expression should be interpreted narrowly. ⁵³

Trial within a Reasonable time

3.32 Article 6 requires that trial be 'within a reasonable time'. While in Strasbourg the actual number of violations of this aspect of Article 6 protection found against the United Kingdom is low, delay in bringing (primarily criminal) cases to trial has been the Convention issue most frequently raised in the Scottish courts since devolution. A number of the reported cases turn on their specific facts and no more can be said than that they are examples of excessive delay. However, some points of general importance have been determined.

• The starting-point of any calculation: the point at which a person is 'charged' with a criminal offence has been a factor in certain cases where this was taken as the date of a police interview, but neither an interview under caution by the Inland Revenue, nor an investigation by the social work department, nor involvement in a children's hearing was treated as giving rise to any such issue as these proceedings were not criminal in nature. Where disciplinary action is taken by professional tribunals, the relevant date for the purposes of the reasonable time requirement was taken as the date on which a complaint was lodged with the relevant tribunal.
• The extent of and reasons for delay: it is not possible to lay down precise rules on these issues. Violations of Article 6 have been established in a number of cases, for example, delays of some 9 years in the determination of a planning application, an unexplained delay of 19 months in criminal proceedings (delays for which the appellant's advisers were responsible being ruled insignificant when considered against the overall period of delay), a three and a half year delay in determining embezzlement charges, and one of 9 months in a straightforward case of encashment of a stolen cheque. However, the courts have refused to condemn delays attributable to particular pressures (rather than shortcomings on account of systemic under-resourcing) and have accepted that it is legitimate for the prosecutor to prioritise cases in terms of their seriousness. Other factors taken into account in the assessment have included the complexity of the charges or evidence and the number of witnesses. Cases involving children as accused or as victims are considered as calling for particular expedition, taking into account the requirements of the UN Convention on the Rights of the Child. ⁵⁴
• Effect of a determination that there has been a failure to ensure trial within a reasonable time: this has recently been clarified by the Privy Council ruling that the appropriate remedy or outcome of a violation of Article 6 is not a reduction in sentence, but the cessation of the prosecution. ⁵⁵

Presumption of innocence

3.33 Persons facing a criminal charge enjoy additional guarantees under Article 6, including the right to be presumed innocent until proven guilty. Thus far, all challenges based on the presumption of innocence have failed.

• Prejudicial pre-trial publicity: in several cases arguments that extensive press publicity has deprived the accused of any chance of a fair hearing have not succeeded by reason of the time which elapsed between the publicity and the trial, or the judge's instructions to the jury, or the venue of the trial.
• References to previous convictions do not necessarily give rise to issues under the provision nor does the fact that charges are libelled as having been committed while on bail.
• Confiscation orders: an application for, or the making of, a confiscation order under the Proceeds of Crime (Scotland) Act 1995 (which allows for the confiscation assets of persons convicted of drug trafficking even where the assets concerned have not been the basis of conviction) does not involve the determination of a criminal charge ⁵⁶ (reasoning which was subsequently followed by the European Court of Human Rights in an application from the United Kingdom in another case). ⁵⁷

Additional minimum guarantees applying in criminal cases

3.34 Article 6(3) confers a number of specific procedural rights on persons charged with criminal offences: the rights to be informed promptly of the nature of the charge; to have adequate facilities to prepare a defence; to defend the charge in person or through legal assistance of one's own choosing (or to be given free legal assistance when the interests of justice so require); to examine or have examined witnesses; and to an interpreter if required. These specific rights must be read in the context of the principal aim of Article 6: ensuring a fair trial. A number of Scottish cases have challenged established aspects of Scots criminal procedure, but in general these have not been successful. Decisions of particular interest include:

• denial of bail does not interfere with the right to have adequate facilities to prepare a defence, as the adequacy of time and facilities to prepare the defence case cannot be determined at the stage of making a bail application;
• the prosecutor cannot always be expected to know the exact date of the offence, and it is enough to give sufficient details of the cause and nature of the accusation to satisfy Article 6;
• restrictions on the right of access to legal assistance to particular aspects of the proceedings will not be deemed incompatible with the guarantee if they can be reconciled with the interests of justice, nor did the perceived inadequacy of legal aid under fixed payments regulations amount to a deprivation of the right of representation; ⁵⁸
• the right to call and to cross-examine witnesses is not absolute, and the impossibility of challenging statements made by a witness who had subsequently died did not in the circumstances lead to an unfair trial as other evidential safeguards existed and, viewing the proceedings as a whole, the trial had been fair.

Retrospective criminal penalties

3.35 Article 7 prohibits application of the criminal law to acts which were not criminal at the time they were done, or the imposition of a heavier penalty than that prescribed by law at the time the offence was committed. The cases which have arisen under Article 7 concerned the issues below:

• Legal certainty: an individual must be able to foresee to a reasonable extent the consequences of any acts or omissions, but this guarantee does not prohibit the gradual development of the law, or clarification of an earlier decision subsequently held to be erroneous. Challenges to the relatively open-ended scope of common law crimes of breach of the peace and shameless indecency have also arisen: in the latter instance, the challenge was successful (although in deciding that this crime has no satisfactory basis in Scots law, the court decided it was unnecessary for them to consider Article 7). ⁵⁹
• Retroactive imposition of a heavier penalty than the one applying at the time of the act or omission: Article 7 provided an additional ground of challenge in cases arising from the new arrangements for the fixing of the punitive element of sentences of life imprisonment made by the Convention Rights (Compliance) (Scotland) Act 2001, which led to some prisoners being considered for release later than under the previous arrangements. These changes were themselves introduced in response to developments in Strasbourg case law. The Privy Council held that the statute did not violate Convention rights as it could be read in a manner consistent with Article 7, but the fact that it could be read in a manner which could allow for longer periods of imprisonment than those set under the previous system had the potential for a violation of Article 7. ⁶⁰ The cases were returned to the appeal court for reconsideration of the punishment parts. (In this case, the minority of the judges were able to reach the same conclusion by referring to the common law presumption that legislation should not be applied, as far as possible, so as to prejudice existing rights or interests.)

PRIVATE AND FAMILY LIFE; AND EDUCATION

3.36 Three of the Articles of the Convention are concerned with issues of private and family life. Article 8 specifically refers to private and family life, home and correspondence. It protects a range of interests including the development of personality, choice of lifestyle, and the determination of family relationships. Article 12 recognises the rights to marry and to found a family in accordance with domestic law. Article 2 of the First Protocol calls upon states to respect parental rights in the provision of education, although it is important to note that it also guarantees a more general right to education. A number of adverse rulings against the United Kingdom over the years in cases involving Scottish applicants have resulted in significant amendments to domestic law and practice, such as the abolition of corporal punishment in Schools ( Campbell and Cosans v UK⁶¹), changes to the procedure in children's hearings ( McMichael v UK⁶²), and narrowing of the powers of the prison service to censor prisoners' mail ( Campbell v UK⁶³). However, a number of new issues have emerged since devolution.

Issues raised in this area

3.37 Article 8 potentially raises issues in a wide variety of domestic law contexts. The cases since devolution have included topics as varied as the scope of 'private life', child care and custody, immigration and deportation, prison conditions, mental health treatment, search and surveillance, and positive obligations to provide state support. On the other hand, there are no Article 12 cases, and only a handful in respect of Article 2 of the First Protocol.

Family life: child care and custody, etc, cases

3.38 A number of cases have concerned the care and custody of children.

• Decisions to free a child for adoption against the wishes of one or more parents: in some cases, ECHR arguments were considered at some length whilst in others they were avoided. In an important case on freeing for adoption Lord Reed commented that it was at least a matter for consideration whether a legislative framework which allowed for greater flexibility might not better enable courts to promote the welfare of the child, and also to strike a fair balance between the interests of the child and those of the natural parent as required by Article 8, rather than the current 'all or nothing' approach under which the parental rights and responsibilities of the natural parents are entirely extinguished. ⁶⁴
• Actions by unmarried fathers seeking parental rights under the Children (Scotland) Act 1995: in one case, a father's action seeking parental rights in respect of children in care was decided without recourse to the ECHR since it was considered that the existing legislation - the Children (Scotland) Act 1995 - already encapsulated the requirements of the Convention.
• Actions by one parent seeking contact with a child: the Children (Scotland) Act 1995 has been specifically considered compatible with Article 8 as it reflects the Strasbourg Court's own jurisprudence that the interests of the child are paramount.
• Defence to a criminal charge of plagium (child stealing): in one instance, an accused person's claim that the charge of having removed his infant child by force from its mother was an interference with respect for his family life was rejected on the ground that the protection of the child in such instances is paramount, and the offence fell within one of the permitted categories of restriction in Article 8.
• Child protection orders allowing the removal of a child from its parents immediately after its birth: several attempts have been made to use Convention arguments to challenge local authority decision-making on the grounds that the action taken is disproportionate and unwarranted. Thus far, these challenges have failed, ⁶⁵ but such disposals may not be entirely consistent in every instance with Strasbourg case law which stresses that there must be 'extraordinarily compelling reasons' for taking a newly-born child into care, since such a measure is 'extremely harsh.' Moreover, the court has stressed the importance of domestic procedural safeguards and there may be some question whether Scottish decisions on the limited participatory rights of parents fully reflect the approach taken by the Strasbourg court.

3.39 Although the Convention has been referred to in all these cases, in many of them it appears to have played at best a marginal role in deliberations, with cases being disposed of largely by reference to domestic sources. The decisions appear, in general, consistent with Strasbourg case law, although with regard to the cases on removal of a child at birth from its mother, it may be argued that a stronger concern to ensure that European Convention concerns are addressed is appropriate.

Family life: immigration and asylum matters

3.40 There is no general right in international law for persons to live as a family unit in any particular country, since international law recognises a state's right to control immigration into its territory. However, the state must exercise this right subject to its Convention obligations. The exclusion of a person from a state where other members of his family are living could give rise to an issue under Article 8. Issues may arise relating either to refusal of admission or to removal from the country. The state need not necessarily respect a couple's choice of matrimonial residence and admit the non-national spouse (or children) for settlement as there has to be a fair balance between the needs and resources of the individual on the one hand and the interests of the community on the other. ⁶⁶ There have been cases in which the Strasbourg authorities have said that parents with settled status should have been reunited with children they had left behind. ⁶⁷ In cases of threatened removal, the question is whether the immigration authorities should refrain from measures which will cause the rupture of family ties, and the English courts have given guidance on the approach to be adopted. ⁶⁸ Scottish cases in this area in the project database have raised the following issues:

• Deportation of an individual with long-established family roots: in one case, the court considered that the Home Secretary had failed to give sufficient weight to a genuine marriage in deciding to remove. In another case, however, a challenge to immigration policy which stated that marriage after the commencement of action to remove immigrants could not in itself be considered a compassionate factor was unsuccessful. In a third case, the court ruled that a wife who had chosen to marry an individual whose immigration status was precarious could not imply a right to remain in the UK.
• Eviction of Asylum seekers: in a series of cases in Glasgow sheriff court, asylum seekers who had occupied social housing under agreement entered into under the Immigration and Asylum Act 1999, which provided that the occupancy rights would terminate when their application for asylum and any subsequent appeals had been determined, challenged their eviction unsuccessfully under Article 8. The cases were disposed of on the ground of contractual, rather than human rights, arguments. In one instance, the court noted that the case was properly one to be raised by judicial review against the National Asylum Support Service, since this organisation had taken the decision to terminate the support. It is worth noting that cases in England have established that where asylum seekers have needs arising otherwise than from destitution or its physical effects, local authorities are obliged to provide assistance under community care legislation. ⁶⁹

Private life

3.41 The concept of 'private life' in Article 8 is interpreted broadly and includes 'the physical and moral integrity of the person, including his or her sexual life', the quality of private life as affected by the amenities of his home, and the right to establish and develop relationships with other human beings. Cases have raised the following issues.

• Discrimination based upon sexual orientation: the policy applying in the armed forces whereby homosexuals were dismissed was considered within the context of employment protection legislation, ⁷⁰ a case which coincided with applications to Strasbourg which ultimately led to changes in domestic law. ⁷¹
• Attempts to widen the scope of Article 8 in regard to 'private life' to include participation in fox-hunting were rejected in Adams v Scottish Ministers, ⁷² which had questioned the validity of the Protection of Wild Mammals (Scotland) Act 2002.
• Privacy and press freedom: where a newspaper published details of the pursuer's divorce in an article, which purported to be an account of evidence led in a proof, but was in fact contrary to the terms of the Judicial Proceedings (Regulation of Reports) Act 1926, the newspaper attempted to justify its action on the grounds of legitimate public interest and the Article 10 guarantee of freedom of expression, and the pursuer argued that Article 8 required publication of such details to be suppressed. The court was able to avoid direct discussion of the European Convention by relying solely on the 1926 Act as the basis for resolving the case.
• Protection of physical integrity: Article 3, which protects individuals from ill-treatment, is complemented by Article 8, in that there will be some cases in which the level of the treatment complained about does not meet the minimum level of severity required for a breach of Article 3, but may involve a violation of Article 8. In some cases it will be appropriate to rely on both articles. This was the case in a number of challenges concerning 'slopping out' in Scottish prisons (discussed above under Article 3). Article 8 may also involve (as with Article 3) a positive obligation on the part of public authorities to ensure respect for the physical and psychological dignity of individuals (particularly vulnerable individuals), either by taking steps to ensure domestic law provides the minimum level of protection required, or by ensuring the effective prosecution of those who violate others' rights. Occasionally, the steps taken to implement this positive duty may be challenged as infringing the Article 8 rights of others, for example, where an accused argued that her prosecution on a charge of shameless indecency with a male pupil who had reached puberty was an infringement of her Convention rights. The court rejected the argument.
• Surveillance and search: there has been a number of unsuccessful challenges to the actions of the police and prison services, including challenges to the search under warrant of a property, to the conduct of surveillance operations in connection with drugs offences, to the application of 'stop and search' powers, and to the use of a tracking device by customs officials. Similarly, a challenge to the routine interception of telephone conversations in prisons, and the authority of the prison governor to pass details to the police when it is thought telephone conversations relate to criminal activity, were considered not to give rise to violations of Article 8, in part since prisoners are taken implicitly to have agreed to monitoring of conversations. However, such an approach may not fully address the requirements of Strasbourg case law that this practice is regulated and free form arbitrariness.
• Regulation of surveillance activities by non-public agents was considered in one case where the victim of a road traffic accident was subject to surveillance by the defender in connection with civil proceedings and sought a declaration that the surveillance was unlawful. The court's refusal to accept that Article 8 was infringed as the defender's actions (including videoing of the pursuer outside his house and going to the pursuer's house to question his wife) were proportionate and reasonable may not fully reflect the approach taken by the Strasbourg institutions. ⁷³

The right to education and parental rights in the provision of education

3.42 Article 2 of the First Protocol both guarantees access to existing educational facilities at elementary level (rather than advanced or higher education) and also places a duty upon a state to respect parents' religious and philosophical convictions in exercising its responsibilities in this area. This provision has given rise to a number of challenges.

• Decision to close a particular school: the UK has made the reservation (referred to in the Human Rights Act 1998) that these obligations apply only in so far as, 'it is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure.' In one instance, this was of importance in disposing of a challenge to an educational authority's decision to close a particular school. ⁷⁴
• Suspension of a pupil from a school imposed as a disciplinary measure: this will not give rise to a violation of the Article providing that the pupil has access to another educational facility, but in one case the court seems to have gone further by upholding the pursuer's assertion that the decision to transfer amounted to an actual exclusion (although Convention arguments were not relied upon by the sheriff, and seemed to play only a minor part in the pursuer's case).
• Respect for religious and philosophical convictions: this right belongs to the parents of a child and suggests more than mere acknowledgment, or that a parent's views have been taken into account, but this does not imply any right to the provision of a specific form of teaching, for example, through the placement of a child in a particular school. In one case, the court noted that a challenge to removal of self-governing status from a school contained no averment as to how the child's right to education and access to the school would be affected by a transfer of management control of the school, as teaching and the curriculum are not changed, and in any case, such views on the governance of a school are insufficient to constitute views amounting to philosophical convictions within the meaning of the provision.

CIVIL AND POLITICAL FREEDOMS: CONSCIENCE AND RELIGION, EXPRESSION, ASSEMBLY AND ASSOCIATION

3.43 Articles 9-11 essentially protect freedom of thought and belief of all kinds, and the ability to manifest those freedoms in various ways. The Article refers specifically to freedom of thought, conscience and religion, freedom of expression, and freedom of assembly and association. These guarantees (together with Article 3 of the First Protocol which guarantees free elections) lie at the heart of democratic and political life (although their significance goes beyond that), but they have not given rise to many cases in the Scottish courts since devolution.

Article 9: Freedom of thought, conscience and religion

3.44 Article 9 protects the right to hold religious beliefs and philosophical convictions, to change these beliefs, and to manifest these beliefs individually or in common with others. There have been only three rather speculative attempts to rely on Article 9. In Adams v Scottish Ministers, claims that the prohibition of hunting foxes with dogs, by the Protection of Wild Mammals (Scotland) Act 2002, violated Article 9 guarantees were rejected as the petitioners could not show that being prohibited by law from following an activity which in principle remained lawful (hunting animals) in the precise manner which they preferred, interfered with their freedom of conscience. In another case, arguments that an individual would suffer persecution on account of his Christian faith if returned to his country of origin failed, partly on account of the credibility of the petitioner (the adjudicator considered that the petitioner did not know some basic facts about Christianity). In the final case, attempts by a former teacher to prevent the holding of Standard Grade assessments of state school pupils, as this would have required the teacher to act against his conscience, were unsuccessful as he had been able to resign and had not been forced to do anything against his conscience.

Article 10: Freedom of expression

3.45 Article 10 protects freedom of expression including freedom to hold opinions and to receive and impart information and ideas without interference by public authority. Very little substantive use has been made of Article 10 in the Scottish courts, apart from challenges to prohibition or restrictions on media broadcasting of events connected with pending legal processes. In these cases, the Scottish courts have placed a greater emphasis on press freedom that they did in the past through adoption of a more robust attitude to juries' ability to disregard pre-trial publicity if given appropriate directions. On the other hand, an attempt to allow the transmission of trial proceedings in a case, where consent to transmission of the trial to the victims' relatives had been given, was unsuccessful. ⁷⁵

Freedom of assembly and association

3.46 Article 11 protects the freedoms of peaceful assembly and of association with others. The prohibition of fox-hunting was considered not to give rise to an issue under Article 11 as the right to assemble without hunting foxes still existed. ⁷⁶ However, there have been two successful challenges under Article 11 In which refusals of permission for holding processions by members of Orange Lodges under the Civic Government (Scotland) Act 1982 were overturned on appeal. In both cases, the court stressed the importance of giving adequate reasons for any ban on public processions.

PROPERTY RIGHTS: PROTOCOL 1, ARTICLE 1.

3.47 Article 1 of the First Protocol protects the peaceful enjoyment of their possessions by both natural and corporate persons, and forbids expropriation except in the public interest and according to the principles of public international law. Interferences with the right may involve absolute deprivation of property, imposition of limitations of, or controls upon, its use, or generally, any other form of interference with its enjoyment. Scottish cases have raised the following issues.

• Decision-making in licensing: domestic decision-making processes must ensure that due account has been taken of the rights of individuals in reaching a decision. Licensing decisions which have an impact upon the carrying out of a trade may fall within the scope of this provision, and human rights arguments have been raised in such cases, although only in one case was the issue of whether refusal to grant an extension to an existing licence amounted to an interference with a property right fully explored. The Strasbourg case law shows that a successful challenge must establish that the interference is disproportionate, or that the authority had fettered its discretion or acted irrationally. In the Scottish cases to date, the conclusion that the decision-making process has overall been fair is supportable in the particular circumstances of each case. For example, in one case, a taxi driver who had held a licence for many years had his licence suspended for 6 months by a licensing authority which had upheld a complaint of racist and threatening behaviour, relying upon the complainer's account without having given the appellant an opportunity to cross-examine the complainer or give his version of events. Since the appellant's version of events substantially supported that of the complainer, the court considered that the authority did not act unreasonably in deciding that the appellant was not a fit and proper person to hold a licence, although they also decided that the sanction of suspension for 6 months was disproportionate. Bearing in mind that the Strasbourg case law permits domestic courts to make a judgment on the proceedings as a whole rather than considering each stage of the decision-making process in isolation, the approach taken to the claims in question been appropriate. However, the courts have perhaps missed the opportunity to give guidance to licensing boards and local authorities on aspects of their procedures that may be less than ideal from the perspective of procedural fairness.
• Housing: a handful of our cases have considered property rights and the home. The most complex of these concerned an application for the discharge of a property obligation under a feu contract restricting the use of the property and in which the court ruled that the relevant statutory provision had a legitimate aim in prohibiting restrictions on the reasonable use of property, and preventing superiors from exacting payments by way of ransom.
• Remedies - arrestment upon the dependence: two cases concerned arrestment upon the dependence, but the disposal in each was different. In the first, an argument that the arrestment of an account was invalid on account of Article 1 of the Protocol was rejected on the ground that arrestment upon the dependence does not amount to a deprivation of property. In the other case, a warrant for inhibition and arrestment on the dependence of an action for payment was challenged by the defenders on the ground that the automatic grant of inhibition without the need for a justification advanced constituted a breach of the Article. Here, the court ruled that certain requirements must be fulfilled if a right to protective attachment of immoveable property on the dependence were to conform to the guarantee: the pursuer must establish a prima facie case and a specific need for an interim remedy; there must be a hearing before a judge at which these matters are considered; and a party must be entitled to damages for loss suffered where no objective justification existed for the use of protective attachment. In this case, the attempted recovery of a contingent debt with no special circumstances could not justify the inhibition, which had, therefore, been granted contrary to the provision. ⁷⁷
• Seizure of proceeds of criminal activity: confiscation orders made under the Proceeds of Crime (Scotland) Act 1995 were found not to have given rise to any breach of Article 1 of the First Protocol, as these struck a fair balance between the rights of the individuals and the interests of the community in combating drug-trafficking. ⁷⁸ As stated above, this approach was subsequently supported by the Strasbourg Court.
• Payment of compensation: failure to pay compensation of an amount, reasonably related to the value of the property taken or otherwise subject to interference, will normally constitute a disproportionate interference with property rights. ⁷⁹

GENERAL PROVISIONS CONCERNING THE ENJOYMENT OF RIGHTS UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS

Article 14 and the prohibition of discrimination

3.48 The list of prohibited grounds for discrimination in Article 14 is not exhaustive but merely illustrative. However, Article 14 can only be considered in conjunction with one or more of the substantive guarantees contained in Articles 2-12 of the Convention or in one of the Protocols: it does not confer any free-standing right not to be discriminated against. Discrimination cases have involved the issues below.

• Sexual orientation: the compulsory resignation of an RAF officer on the grounds of his homosexuality was challenged, the court ruling that 'sex' in domestic anti-discrimination legislation meant gender and not sexual orientation, but that such an interpretation was not compatible with the individual's Convention rights. ⁸⁰
• Determination of an appropriate comparator: an unsuccessful attempt was made to compare a self-governing school with other schools; and in the above case, the court ruled that the proper comparator was a homosexual female officer rather than a female heterosexual officer (but that this was incompatible with the Convention).
• Special needs, etc, of vulnerable groups: in one case ⁸¹ a local authority appealed against a decision of an inquiry reporter, appointed by the Scottish Ministers allowing a traveller to use an old petrol station to park his caravans, inter alia on the ground that the reporter had had undue regard to the traveller's purported status as a travelling person. The reporter had referred to Article 14 and a relevant judgment of the Strasbourg Court, and commented that the vulnerable position of travellers as a minority meant that some special consideration should be given to their needs and lifestyle, both in the relevant regulatory planning framework and arriving at the decisions in practical cases. On appeal, the local authority relied on decision Chapman v United Kingdom ⁸² to argue that travellers were not entitled to better treatment than holidaymakers. However, the appeal was dismissed on 29 January 2003 after adjustment of pleadings, on the motion of the appellant and of consent for the respondent. Thus, the human rights arguments were not considered by the court.

Article 17 and the prohibition of abuse of rights

3.49 Article 17 of the European Convention on Human Rights prohibits the interpretation of the Convention so as to imply 'the right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms' in the Convention. In Strasbourg, its primary application has been in the context of disposing of 'hate' speech (for example, holocaust denial) questions under Article 10 where a state has taken action against such expression. Rather surprisingly, it has been invoked in six of our cases, but against action taken by judicial or legislative bodies in challenges to the imposition of a 'punishment part' of a life sentence ( Flynn v HM Advocate), on the grounds that the period determined exceeded the 'tariff' which otherwise would have been served; and in relation to legislation prohibiting fox-hunting ( Adams v Scottish Ministers). All of these arguments were dismissed.

3.50 This chapter has summarised the post-devolution human rights case law. The following chapter discusses the effect of the case law on Scots law and public policy, and the general approach of the judiciary to arguments based on Convention rights.