Subject-Matter Index

Access to appeal process. See FINANCIAL SERVICES (Guernsey Financial Services Commission—appeals)

Access to courts. See Right to compensation for illegal detention—procedural obligations. Right to fair trial—access to courts

Admissibility to European Court of Human Rights

exhaustion of domestic remedy

case admissible to European Court of Human Rights, despite applicant’s alleged failure to exhaust domestic remedies, if Government estopped by delay from raising objection—estopped if matter not raised, but conceded, before Commission: McGonnell v. UK (E.C.H.R.), 2000–02 GLR 20

Applicability of European Convention on Human Rights

retrospective effect

European Convention not to be applied retrospectively, i.e. to cases determined prior to enactment of Human Rights (Bailiwick of Guernsey) Law 2000: Le Huray v. States (Royal Ct.), 2011–12 GLR 396

In re Sherry (Royal Ct.), 2011–12 GLR N [12]

no action against States under Human Rights (Bailiwick of Guernsey) Law 2000, s.8 for unlawful arrest and detention by police and customs officers contrary to European Convention, art. 5(5), if arrest and detention occur before Law in force: Le Huray v. States (Royal Ct.), 2011–12 GLR 396

significance for domestic law

before Human Rights (Guernsey) Law 2000 implemented, desirable for Convention principles to be applied: Law Officers v. Constables of Sark (Royal Ct.), 2003–04 GLR N [12]

when Human Rights (Bailiwick of Guernsey) Law 2000 not yet in force, court still able to recognize that European Court of Human Rights regards property rights under Protocol 1, art. 1 as subject to regulation in public interest—not able to maintain that right to fish not capable of restriction: States v. Jersey Fishermen’s Assn. Ltd. (C.A.), 2005–06 GLR 226

waiver

Convention cannot apply if rights waived—claim based on lack of fair trial not tacitly waived by failure to raise objection in domestic court or bring domestic appeal unless failure unreasonable—in assessing reasonableness, court to take into account contrary view expressed in domestic authority and delay by Government in raising issue of waiver: McGonnell v. UK (E.C.H.R.), 2000–02 GLR 20

Citizens. See Right to free elections—right to stand for election

Compensation for illegal detention. See Right to compensation for illegal detention

Conflict between protected rights

waiver

right to fair hearing of criminal charge under European Convention, art. 6 may conflict with alleged victim’s right to respect for privacy under art.8—rights to be balanced when criminal allegation made and not treated as waived or discarded—defence has no automatic right to disclosure of medical report on alleged sexual offence if not directly relevant to proof of case but merely designed for use in testing complainant’s credibility: Law Officers v. Alvarez (Royal Ct.), 2011–12 GLR N [28]

Confrontation of witnesses. See Right to fair trial—right to confront witnesses

Customary and common law. See Legal basis of interference with Convention rights

Deportation. See Right to respect for private and family life—deportation

Deprivation of property. See Peaceful enjoyment of possessions—deprivation of property

Discrimination. See Prohibition of discrimination

Equality of arms. See Right to fair trial—equality of arms

European Court of Human Rights

decisions of the European Court. See JURISPRUDENCE (Precedent—decisions of European Court of Human Rights)

role in Guernsey judicial system

since European Court not further appellate court in Guernsey judicial system (including Judicial Committee), once leave to appeal refused by Judicial Committee, Court of Appeal has no jurisdiction to order stay of execution of own decision pending application by unsuccessful appellant to European Court: Murfitt v. States (Alderney) (C.A.), 2003–04 GLR N [10]

Eviction of tenant. See Right to respect for private and family life—eviction of tenant

Exhaustion of domestic remedy. See Admissibility to European Court of Human Rights—exhaustion of domestic remedy

Extension of time for appeal. See Right to fair trial—time limits

Fair trial. See Right to fair trial. Right to fair trial—access to courts

Family life. See Right to respect for private and family life

Freedom of expression

television licences

no breach of ECHR, art.10 by requirement in Communications Act 2003, s.363 (as extended to Guernsey) that installation and use of television receiver requires licence with accompanying liability to pay fee: Elkington v. Law Officers (Royal Ct.), 2015 GLR 227

Gender reassignment. See Right to respect for private and family life—gender reassignment

Housing licences. See Right to respect for private and family life—housing licences

Illegal detention. See Right to compensation for illegal detention

Independent and impartial tribunal. See Right to fair trial—independent and impartial tribunal

Inquest. See Right to life—inquest

Jurisdiction to adjudicate on breach

Guernsey courts

Bailiwick courts have jurisdiction to adjudicate on compatibility of Sark legislation with European Convention since satisfactory local procedures available—even if UK courts also have jurisdiction, e.g. because responsible for Guernsey’s international relations, preferable for them to defer to Guernsey jurisdiction—Bailiwick courts have greater sensitivity to local concepts of due process, independence and impartiality and awareness of whether local legislation “necessary in a democratic society”: R. (Barclay) v. Justice Secy. (No. 2) (UK Supreme Ct.), 2014 GLR 201

UK courts

English courts have jurisdiction to entertain challenge to Sark legislation for incompatibility with European Convention since UK government responsible for Guernsey’s international relations—discussion of limitations on and undesirability of English courts exercising jurisdiction when Guernsey courts have stronger claim under similar human rights legislation: R. (Barclay) v. Justice Secy. (No. 2) (UK Supreme Ct.), 2014 GLR 201

English courts have jurisdiction to entertain challenge to Sark legislation for potential incompatibility with European Convention if Order in Council recommending Royal Assent made in right of both Guernsey and UK—may nonetheless be undesirable for English courts to exercise jurisdiction over challenge to Bailiwick legislation if satisfactory local procedures available: R. (Barclay) v. Justice Secy. (No. 2) (UK Supreme Ct.), 2014 GLR 201

Lack of arbitrariness. See Right to liberty and security—lack of arbitrariness

Legal basis of interference with Convention rights

interference “provided by law”

Sark customary law provides adequate legal basis for interference (in case concerning child) with Convention rights under ECHR, art. 8 and First Protocol, art. 1—interference has basis in customary law and law adequately accessible and precise to enable individual to foresee consequences of particular action—development of customary law to be clear and unambiguous, and in compliance with Convention rights: A v. R (Royal Ct.), 2016 GLR 214

Sark customary law under which Seneschal’s Court may order payment of maintenance for illegitimate child sufficiently clear and accessible for purposes of ECHR—law not inaccessible merely because difficult to find: A v. R (C.A.), 2017 GLR 105

Margin of appreciation

responsibility for decision

decision whether local action within state’s “margin of appreciation” to be made by European Court but Guernsey court to be guided by European Court’s relevant judgments—state has smaller margin of appreciation when threat to individual’s intimate or key rights under art. 8: Thomas v. Housing Dept. (Minister) (Royal Ct.), 2007–08 GLR 251

No punishment without law

heavier sentence

extended sentence licence preventive not punitive—ECHR art. 7 not engaged where offences for which applicant sentenced were committed before Criminal Justice (Supervision of Offenders) (Bailiwick of Guernsey) Law 2004 came into force: Hastie v. Law Officers (C.A.), 2022 GLR N [1]

not breach of ECHR, art. 7 to pass extended sentence of 10 years for gross indecency with child or indecent assault on child, for offences committed before 1985 but sentence passed later, since maximum sentence for both offences at time committed was life imprisonment: G v. Law Officers (C.A.), 2013 GLR 190

interpretation of ECHR, art. 7

elements of indecent assault on woman clearly identifiable by reference to development of law in England and Guernsey and unambiguous wording of Offences against Girls (Availability of Defences) Law 1956, s.2—sufficient clarity, precision and certainty to engage either art. 6 or 7: Ascolese v. Law Officers (Royal Ct.), 2015 GLR 196

interpretation of European Convention, art. 7

article requires legal certainty about scope of offence, but not factual certainty—no breach of art. 7 if question whether mephedrone is medicinal product for purposes of prohibition under Import and Export (Control) (Guernsey) Law 1946, art. 3, since legislation sufficiently clear and no legal uncertainty: Law Officers v. Le Billon (C.A.), 2011–12 GLR 128

offences to be clearly defined in law to enable citizen to foresee consequences of conduct, but legislation often in broad terms so as to be of general application and some vagueness inevitable: Law Officers v. Le Billon (C.A.), 2011–12 GLR 128

Non-elected members of legislature. See Right to free elections—non-elected members of legislature

Peaceful enjoyment of possessions

deprivation of property

breach of European Convention, First Protocol, art. 1 to order transfer of matrimonial home from joint ownership to sole ownership of one spouse pending refinancing, if no compensation or provision for reopening issue after refinancing completed—disproportionate response to spouse’s refusal to execute refinancing documents: E v. E (C.A.), 2007–08 GLR 374

confiscation scheme under Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) Law 1999 to be given effect in manner which complies with ECHR First Protocol, art. 1 (right to peaceful enjoyment of possessions)—where respondent’s benefit from money-laundering assessed in 2019 as £2.2m. but only £1 confiscated as realisable assets, disproportionate in 2021 to confiscate £4,276 (legitimately obtained) subsequently discovered in respondent’s bank account—Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) Law 1999 does not entail reducing respondent to penury: H.M. Procureur v. Dawson-Ball (Royal Ct.), 2021 GLR N [4]

no breach of ECHR, First Protocol, art. 1 by requirement in Communications Act 2003, s.363 (as extended to Guernsey) that installation and use of television receiver requires licence with accompanying liability to pay fee: Elkington v. Law Officers (Royal Ct.), 2015 GLR 227

procedure under Law Reform (Miscellaneous Provisions) (Guernsey) Law 1987, s.6 whereby court may give leave to register interlocutory act in Livre des Hypothèques, and thus create charge against defendant’s realty in favour of plaintiff, possible interference with defendant’s enjoyment of his property contrary to First Protocol to European Convention, art. 1—interference nevertheless proportionate, sufficiently certain and serves legitimate purpose in enforcement of civil claim—protection against breach of article lies in sensible application of discretion by court under 1987 Law, s.7: Jubilee Scheme 3 Ltd. v. Capita Symonds Ltd. (C.A.), 2011–12 GLR 25

property rights under European Convention, Protocol 1, art. 1 subject to regulation in public interest—not able to maintain that right to fish not capable of restriction: States v. Jersey Fishermen’s Assn. Ltd. (C.A.), 2005–06 GLR 226

refusal of consent to dealing with funds under Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) Law 1999, s.39(3) is control proportionate to aim of preventing money laundering—even if person retains right in question, court to investigate whether situation amounts to de facto deprivation contrary to European Convention, First Protocol, art. 1, i.e. whether person has no means whatsoever of dealing with property: Customs & Excise, Immigration & Nationality Service (Chief Officer) v. Garnet Invs. Ltd. (C.A.), 2011–12 GLR 250

refusal of consent to dealing with funds under Criminal Justice (Proceeds of Crime) (Bailiwick of Guernsey) Law 1999, s.39(3) is proportionate control, not direct or de facto deprivation—no de facto deprivation if legal remedies not exhausted, e.g. private law action against bank holding funds not yet attempted: Customs & Excise, Immigration & Nationality Service (Chief Officer) v. Garnet Invs. Ltd. (C.A.), 2011–12 GLR 250

interference “provided by law”. See Legal basis of interference with Convention rights—interference “provided by law”

“possessions”

under European Convention, First Protocol, art. 1, most rights with economic value “possessions”—not limited to tangible assets—funds standing to credit of customer in bank account not customer’s property and therefore not “possessions,” but customer’s right to demand payment of money from bank of economic value and therefore “possession”: Customs & Excise, Immigration & Nationality Service (Chief Officer) v. Garnet Invs. Ltd. (C.A.), 2011–12 GLR 250

“Possessions”. See Peaceful enjoyment of possessions

Precedent. See JURISPRUDENCE (Precedent—decisions of European Court of Human Rights)

Presiding officer of legislature. See Right to free elections—presiding officer

Private and family life. See Right to respect for private and family life

Prohibition of discrimination

removal of young girls’ ability to consent to sexual activity

permissible as designed to protect health, morals and rights—precise age for consent is policy judgment for legislature, which must be afforded margin of appreciation—choice of specific defence for men of defined age range by Offences against Girls (Availability of Defences) Law 1956, s.2 good example of balanced approach—excluding older men from taking advantage of defence not unfair discrimination against them contrary to ECHR, art. 14: Ascolese v. Law Officers (Royal Ct.), 2015 GLR 196

Proportionality

burden of proof

burden of showing interference with individual’s Convention right is proportionate lies on state—to show that “necessary in a democratic society” because interference with right meets pressing social need but no greater than necessary to meet state’s legitimate objective: Thomas v. Housing Dept. (Minister) (Royal Ct.), 2007–08 GLR 251

objective of housing licences (i.e. to control limited housing resources for benefit of community) accepted by European Court as legitimate—under European Convention, art. 8(2), for state to show that interference with individual’s Convention right meets pressing social need but no greater than required to meet state’s legitimate objective: Thomas v. Housing Dept. (Minister) (Royal Ct.), 2007–08 GLR 251

Protection against deprivation of property. See Peaceful enjoyment of possessions—deprivation of property

Reasons for decision. See Right to fair trial—reasons for decision

Retrospective effect of European Convention. See Applicability of European Convention on Human Rights—retrospective effect

Right to compensation for illegal detention

procedural obligations

state to provide means for victim of illegal detention to bring proceedings to determine appropriate compensation—not obliged to assist claimant in identifying wrongdoer or in obtaining full benefit of award: Le Huray v. States (Royal Ct.), 2011–12 GLR 396

Right to fair trial

access to courts

although third party objecting at open planning meeting unable to appeal to court because not “applicant” for planning permission, appropriate access to court required by ECHR, art. 6 when objection rejected—judicial review appropriate remedy: Groucutt v. Environment Dept. (Minister) (Royal Ct.), 2015 GLR 406

European Convention, art. 6 concerned with procedural not substantive law—state not obliged to create or protect individual’s civil right by law but only to ensure that if Convention right exists, legal system not to put disproportionate obstacles in way of enforcement: Le Huray v. States (Royal Ct.), 2011–12 GLR 396

no denial of access to courts by refusing to make States vicariously liable for unlawful acts of police and customs officers—officers fulfil duties as public servants in own right and therefore to be sued personally: Le Huray v. States (Royal Ct.), 2011–12 GLR 61

no “impairing of essence” of right of access to courts (guaranteed by European Convention, art. 6) involved in making order for security of costs on appeal, especially since substantive merits of appeal examined before making order for security: Canivet Webber Fin. Servs. Ltd. v. Guernsey Fin. Servs. Commn. (C.A.), 2007–08 GLR N [25]

security for costs

circumstances justifying order for security on appeal to be truly special and court to proceed with great caution—interests of protecting respondent from being put to irrecoverable expense of defending hopeless appeal may outweigh appellant’s right to pursue hopeless appeal: Shelton v. Barby (C.A.), 2015 GLR 84

considerations on appeal different from those at first instance—appellant will then have had his “day in court”—easier for appeal court to form view of merits—court prefers test for ordering security on appeal to move towards refusing order if weak case, even one with no realistic prospect of success: Shelton v. Barby (C.A.), 2015 GLR 84

correct approach on appeal to look at case in the round, to see if special circumstances and whether or not right to order security—overall justice of case, parties’ interests and administration of justice generally major considerations: Shelton v. Barby (C.A.), 2015 GLR 84

decision whether to order security to balance appellant’s right of access to appeal court against respondent’s right not to be subjected to expensive proceedings, probably at own expense—court to consider parties’ overall conduct of litigation, e.g. flouting court procedures, inclination to litigate expeditiously: Shelton v. Barby (C.A.), 2015 GLR 84

“special circumstances” under Court of Appeal (Civil Division) (Guernsey) Rules 1964, r.12(5)—impecuniosity not by itself “special circumstance” permitting order for security on appeal—to be put in context—meritorious appeal could be stymied by lack of means, impairing very essence of right of access to appeal court: Shelton v. Barby (C.A.), 2015 GLR 84

charges

under European Convention, art. 6(3), defendant has right to be informed in clear detail of nature and cause of accusation against him—in charge, unacceptable for several allegations to be condensed into single sentence (e.g. multiple offences under Fishing (Sark) Ordinance 1996 charged collectively as “illegal fishing”)—if lack of detail renders guilty plea unsafe, clear justification to set aside conviction and sentence: Law Officers v. Constables of Sark (Royal Ct.), 2003–04 GLR N [12]

equality of arms

to be considered when exercising discretion to remove advocate if partners and members of advocate’s firm to be witnesses in litigation conducted by him: Ogier v. Jeffreys (Royal Ct.), 2009–10 GLR 88

evidential irregularities

court to decide whether appellant’s right to fair trial under European Convention, art. 6 infringed because of irregularities, e.g. judge wrongly directing Jurats that witness entitled to falsify evidence (later corrected) to protect from disclosure—fair trial if factual issues not directly affected by irregularities and credibility of witness’s other evidence only marginally affected: Marsh v. Law Officers (C.A.), 2000–02 GLR 406

independent and impartial tribunal

Bailiff’s combination of judicial and non-judicial roles capable of violating European Convention, art. 6—lacks objective appearance of independence and impartiality if hears case concerning law/rule in enactment of which directly involved, i.e. passed by States of Deliberation actively presided over by him: McGonnell v. UK (E.C.H.R.), 2000–02 GLR 20

in proceedings in Sark by landlord for eviction of tenant (for breach of repairing covenant), risk of apparent bias where Seneschal recently nominated landlord for election as Conseiller—failure to draw parties’ attention to nomination renders trial unfair: Rogers v. Moerman (Royal Ct.), 2017 GLR 327

no requirement in European Convention that lay fact-finders (Jurats) required in appeals from Magistrate’s Court—hearing of appeal by legally-qualified judicial officer sitting alone proper if oral hearing, previous written arguments, reasoned decision in accordance with law, with power to uphold, quash, or remit decision to lower court: A v. Law Officers (Royal Ct.), 2013 GLR 22

Seneschal’s judicial role under Sark (Reform) Law 2008 breaches European Convention, art. 6—involvement in non-judicial functions in Chief Pleas prejudices objective appearance of independence and impartiality—danger in small community that Seneschal may be involved with same people and issues both in Chief Pleas and in court—litigant unaware whether Seneschal previously involved in issues affecting litigation—situation not rectified by power to recuse himself and appoint Deputy or Lieutenant, or by right of appeal to Guernsey: R. (Barclay) v. Justice Secy. (English C.A.), 2009–10 GLR 297

Seneschals’ judicial role under Sark (Reform) Law 2010 may be questioned under European Convention, art. 6—provision for remuneration out of public funds (to be determined by Chief Pleas) may be seen in small jurisdiction as making vulnerable to pressures in deciding cases: R. (Barclay) v. Justice Secy. (No. 2) (UK Supreme Ct.), 2014 GLR 201

majority verdict

conviction by simple majority of Jurats not breach of right to fair trial under ECHR, art. 6: Jones v. Law Officers (C.A.), 2016 GLR 243

reasons for decision

absence of reasons for Jurats’ decision to convict not breach of right to fair trial under ECHR, art. 6, as sufficient safeguards: Jones v. Law Officers (C.A.), 2016 GLR 243

absence of reasons for Jurats’ decisions inappropriate in planning law appeals and incompatible with Human Rights (Guernsey) Law 2000—before 2000 Law in force, desirable in appeals from Island Development Committee decisions for Jurats to give reasons or counsel to suggest to judge questions of fact to be asked of Jurats leading logically to decisions: Island Dev. Cttee. v. Lainé (C.A.), 2003–04 GLR 385

court to give adequate reasons for decisions (particularly in light of European Convention, art. 6)—adequacy depends on circumstances of case (reasons may be implicit in decision)—losing party must know reasons so as to consider whether to appeal: Bohan v. Bithell (Royal Ct.), 2014 GLR 347

European Convention, art. 6 requires court’s ruling to indicate sufficiently clearly grounds on which decision based—in Magistrate’s Court, if does so, Magistrate need not use elaborate form of words or prepare judgment as such: Allen v. Law Officers (Royal Ct.), 2007–08 GLR N [26]

in light of European Convention, art. 6, general duty on judges, and magistrates in particular, to give reasons for decisions—extent of reasoning required depends on circumstances of case—sufficient that parties and, if necessary, appellate court understands basis on which judge acts: Henry v. Veloso (Royal Ct.), 2003–04 GLR N [31]

right to confront witnesses

no absolute right for accused physically to confront witnesses against him—European Convention, art. 6 merely gives defence proper opportunity to challenge and question witnesses against accused, even if accused not physically present—use of screens in court not per se breach of art. 6: Pinto v. Law Officers (C.A.), 2013 GLR 83

rights of unrepresented accused

at close of prosecution case, court to inform unrepresented accused of right to give evidence, call witnesses, or stay silent—failure to do so may result in quashing conviction unless information correctly given earlier in trial and accused able to take full advantage of opportunity to put case—court always to check fairness against requirements of European Convention, art. 6: Burtenshaw v. Law Officers (Royal Ct.), 2011–12 GLR N [1]

time limits

not arbitrary or disproportionate denial of right to fair hearing of appeal, contrary to European Convention, art. 6, to refuse Utility Appeals Tribunal right to extend 14-day time limit in Regulation of Utilities (Bailiwick of Guernsey) Law 2001, s.15(4), if appellant aware of limit and not onerous for advocates to comply—not inequality of arms merely because appellant has 14 days to appeal and respondent 42 days to reply: Cable & Wireless Guernsey Ltd. v. Office of Utility Regulation (Dir. Gen.) (Royal Ct.), 2007–08 GLR N [7]

trial within reasonable time

for purposes of European Convention, art. 6, time runs from date accused “charged,” whether interpreted as date of arrest, date of official notification of prosecution, or date of opening preliminary investigation with view to prosecution—if choice available, appropriate date that most favourable to accused—opening administrative investigation without power to prosecute (e.g. Environment Department) not appropriate date but rather opening subsequent criminal investigation (police and Law Officers): Bach v. Law Officers (C.A.), 2007–08 GLR 354

in considering reasonableness of time under European Convention, art. 6, to consider especially complexity of case, conduct of defendant and approach of administrative authorities—longer period reasonable if authorities spend time seeking non-criminal resolution before prosecuting: Bach v. Law Officers (C.A.), 2007–08 GLR 354

Right to free elections

margin of appreciation

historical and political factors relating to office-holders in Sark (Seigneur since 1565 and Seneschal since 1675) require exercise of wide margin of appreciation in recognizing their ex officio non-elected membership of Chief Pleas. presidency of Seneschal and Seigneur’s limited right of veto of legislation—special position of Sark permits exercise of wide margin of appreciation in limitation of right to stand for election to Chief Pleas: R. (Barclay) v. Justice Secy. (UK Supreme Ct.), 2009–10 GLR 314

non-elected members of legislature

no requirement in European Convention, First Protocol, art. 3 that all members of unicameral legislature be elected—wide margin of appreciation, dependent on constitutional history and political development, to recognize unelected Seigneur and Seneschal as members of Chief Pleas of Sark, since legislation still enacted through genuinely democratic process, and membership not arbitrary or lacking in proportionality—ex officio membership of non-voting Seigneur and Seneschal, sitting with 28 elected voting members, not breach of art. 3: R. (Barclay) v. Justice Secy. (UK Supreme Ct.), 2009–10 GLR 314

presiding officer

anomaly for non-elected official (appointed by another non-elected official) to be presiding officer of elected assembly—in light of historical and political factors, position of Seneschal as President of Chief Pleas well within margin of appreciation allowed by First European Convention, First Protocol, art. 3—Seneschal’s extensive procedural powers those of any presiding officer and not subject to question under art. 3: R. (Barclay) v. Justice Secy. (UK Supreme Ct.), 2009–10 GLR 314

right to stand for election

rights under European Convention, First Protocol, art. 3 accorded only to citizens—if not separate international entity (e.g. Sark) without defined citizenship, margin of appreciation wide enough to allow equating conditions of right to stand with right to vote—in Sark, right to vote requires 12 months’ residence or registration as possessor of land on Island, and excludes aliens—eligibility to stand for election may be narrower than eligibility to vote, without offending art. 3: R. (Barclay) v. Justice Secy. (UK Supreme Ct.), 2009–10 GLR 314

right to veto legislation

right of individual non-elected member to veto legislation to be viewed in light of realities—Seigneur’s power to veto legislation in Chief Pleas only delaying power, applicable only to minor legislation (ordinances), not exercised for over 80 years, currently willing to relinquish it and willing to use only in narrowly-defined circumstances to ensure wider democratic will respected—no breach of European Convention, First Protocol, art. 3: R. (Barclay) v. Justice Secy. (UK Supreme Ct.), 2009–10 GLR 314

Right to liberty and security

lack of arbitrariness

guarantee of lack of arbitrariness inherent in European Convention, art. 5—discretion of Royal Court in deciding how much time spent in custody to be credited to proposed appellant from Magistrate’s Court under Police Court Appeals Law 1939 to be drawn to appellant’s attention—for appellant to consider risk in appealing inherent in discretion—rule harsh but not arbitrary: Sherry v. R. (P.C.), 2013 GLR 64

lawful detention to prevent spread of infectious diseases

requirement to self-isolate on arrival in Guernsey (under Emergency Powers (Coronavirus) (General Provision) (Bailiwick of Guernsey) (No. 7) Regulations 2021, reg. 5) lawful—not deprivation of liberty under ECHR art. 5, or not disproportionate as art. 5(1)(e) applied (i.e., to prevent spread of infectious disease): Bridgman v. Civil Contingencies Auth. (Royal Ct.), 2021 GLR 316

liability of States

retrospective effect—no action against States under Human Rights (Bailiwick of Guernsey) Law 2000, s.8 for unlawful arrest and detention by police and customs officers contrary to European Convention, art. 5(5), if arrest and detention occur before Law in force: Le Huray v. States (Royal Ct.), 2011–12 GLR 61

unlawful detention

applying M’Naghten Rules as test for responsibility in criminal cases not contrary to prohibition on unlawful detention in European Convention, art. 5(1)(e): Law Officers v. Harvey (Royal Ct.), 2000–02 GLR 189

Right to life

inquest

“procedural aspect” of obligation to protect life (European Convention, art. 2(1)) requires public and independent scrutiny and explanation of circumstances of death while deceased in custody of state (e.g. in prison)—narrative verdict required summarizing coroner’s inquest’s factual conclusions on circumstances bearing causal relationship to death: In re Schofield (Magistrate’s Ct.), 2009–10 GLR 353

Right to respect for private and family life

consensual sexual acts

illegality of consensual heterosexual sodomy under Loi Relative à la Sodomie 1929, s.1 may be in breach of European Convention, art. 8, since consensual homosexual sodomy between adults in private no longer offence under Guernsey law: Afonso v. Law Officers (Royal Ct.), 2000–02 GLR N [17]

removal in law of young girls’ ability to consent to sexual activity permissible as designed to protect health, morals and rights—precise age for consent is policy judgment for legislature, which must be afforded margin of appreciation—choice of specific defence for men of defined age range by Offences against Girls (Availability of Defences) Law 1956, s.2 good example of balanced approach—excluding older men from taking advantage of defence not unfair discrimination against them: Ascolese v. Law Officers (Royal Ct.), 2015 GLR 196

deportation

balance to be struck between need to punish serious crime and deter others; and importance of relationship between offender to be deported and his family—interference with family lives of others also to be considered, such as impact of violent and degrading offences on complainant and her family: Pinto v. Law Officers (C.A.), 2013 GLR 83

balance to be struck between need to punish serious crime and deter others, and importance of relationship between offender to be deported and his family—more serious the offence(s), less likely that recommendation to deport disproportionate: Fernandes v. Law Officers (C.A.), 2014 GLR N [8]

correct approach to European Convention, art. 8 is to ask (a) is there interference with family life? (b) is it in accordance with law and in pursuit of a legitimate aim within art. 8(2)? and (c) if so, is interference proportionate, given balance between various factors?: Pinto v. Law Officers (C.A.), 2013 GLR 83

Fernandes v. Law Officers (C.A.), 2014 GLR N [8]

court itself to investigate potential human rights issues, e.g. disproportionate interference with right to family life under European Convention on Human Rights, art. 8, before making recommendation—fewer investigatory facilities available to Lieutenant-Governor considering recommendation and no right of appeal, as in United Kingdom—reasonable expectation that court’s recommendation will be acted upon with little further investigation: O’Dette v. Law Officers (C.A.), 2007–08 GLR 16

deportation in public interest unless exceptional circumstances—correct approach to ECHR, art. 8(2) is to ask (a) is there interference with family life? (b) is it in accordance with law and in pursuit of a legitimate aim within art. 8(2)? and (c) if so, is interference proportionate, given balance between various factors?: Fernandes v. Lieut. Gov. (Royal Ct.), 2016 GLR 285

proportionality of deportation as sanction not finally decided by court’s recommendation—remains to be considered by Lieutenant Governor when appellant to be released—balance of circumstances may change over years, though child’s best interests always to remain primary consideration: Pinto v. Law Officers (C.A.), 2013 GLR 83

test of proportionality imposed by ECHR, art. 8(2) requires fair balance between public interest and protection of individual’s fundamental rights—more demanding standard of decision-making than Wednesbury reasonableness—if no leave to apply on proportionality, Wednesbury arguments also fail: Fernandes v. Lieut. Gov. (Royal Ct.), 2016 GLR 285

when deportation of family member recommended, family relationship entitled to respect only if dependency present—less weight given to rights of offender and siblings under European Convention, art. 8, unless can show elements of dependence between them—mere presence of siblings in Guernsey insufficient: Fernandes v. Law Officers (C.A.), 2014 GLR N [8]

when deportation of parent recommended, family relationship entitled to respect only if dependency present—less weight given to rights of parent and adult child under European Convention, art. 8, unless they can show additional elements of dependence: de Sousa v. Law Officers (C.A.), 2014 GLR 107

where child affected by deportation, its best interests always of primary importance—court should obtain necessary facts but will exercise inquisitorial functions only rarely—heavy reliance on probation report but offender himself to give court relevant information about domestic circumstances and family life: Pinto v. Law Officers (C.A.), 2013 GLR 83

eviction of tenant

ECHR, art. 8 concerns interference by state with individual’s right to private and family life—not directly invoked when private landlord seeks eviction of tenant—may be consideration whether customary law requires strict interpretation of lease to be ameliorated because eviction unjust as disproportionate: Rogers v. Moerman (Royal Ct.), 2017 GLR 327

“family life”

“family life” in relation to adult siblings only to be given respect under European Convention, art. 8 if offender shows elements of dependence between them—mere presence in Guernsey insufficient: Fernandes v. Law Officers (C.A.), 2014 GLR N [8]

“family life” to be given respect under European Convention, art. 8 if dependent child—less weight given to rights as between parent and adult child unless can show additional elements of dependence: de Sousa v. Law Officers (C.A.), 2014 GLR 107

no “family life” to be given respect under European Convention, art.8 if no contact between unmarried birth father and child for first four years of life—natural fatherhood not itself enough to create family tie of any substance—no right to be treated as “parent” for purposes of giving consent to adoption under Adoption (Guernsey) Law 1960, s.5(1)(a), or automatic right to be joined as party to adoption proceedings: In re Q (A minor) (Royal Ct.), 2009–10 GLR 368

gender reassignment

right under European Convention, art. 8 to rectification of Register of Births to recognize gender reassignment—by Human Rights (Bailiwick of Guernsey) Law 2000, s.2(1), Royal Court to take account of decisions of European Court in adjudicating on issues involving Convention rights—modern approach of European Court that contrary to art. 8 to refuse to recognize change in gender assigned and registered at birth: In re X (Royal Ct.), 2007–08 GLR 161

“home”

European Convention, art. 8(1) requires respect for residence in particular property, rather than whole Island—includes “home from time to time” and art. 8(1) therefore engaged by refusal of housing licence for home to which applicant plans to move: Forrest v. Housing Dept. (Minister) (Royal Ct.), 2013 GLR N [3]

not defined or legal term of art—pragmatically considered place where individual lives, to which returns and which forms centre of individual’s existence: Kinley v. Housing Dept. (Minister) (Royal Ct.), 2009–10 GLR 157

place where individual and family entitled to live in peace free from official interference—important part of human dignity and protected as such, rather than item of property: Thomas v. Housing Dept. (Minister) (Royal Ct.), 2007–08 GLR 251

housing licences

attempt under European Convention, art. 8(2), to justify interference with applicant’s rights under art. 8(1) by reference to economic well-being of Island, not given genuine statistical support by Housing Needs Survey—Survey’s calculation of net shortfall in housing inaccurate because fails to consider construction of new properties and conversions of old properties—if supply of new dwellings from any source exceeds demand, applicant’s claim to licence strengthened: Kinley v. Housing Dept. (Minister) (Royal Ct.), 2009–10 GLR 157

condition specifying with whom non-qualified resident may live, or requiring occupation of own home with locally-qualified resident, is breach of European Convention, art. 8 right to respect for private life and home—disproportionate interference with individual’s Convention right: Thomas v. Housing Dept. (Minister) (Royal Ct.), 2007–08 GLR 251

no engagement of European Convention, art. 8 by applicant’s taking lodger voluntarily, rather than as condition imposed by Housing Department—need to pay extra rent or leave accommodation caused by landlord’s rent policy, not Department’s condition: Boulton v. Housing Dept. (Minister) (Royal Ct.), 2009–10 GLR N [9]

no engagement of European Convention, art. 8 when Housing Department decides whether to consider further application for housing licence under Housing (Control of Occupation) (Guernsey) Law 1994, s.6A, since merely determining whether qualitative changes in applicant’s circumstances: Carr v. Housing Dept. (Minister) (Royal Ct.), 2011–12 GLR N [22]

refusal of housing licence engages European Convention, art. 8(1) if application relates to home to which applicant proposes to move—“home” includes “home from time to time”—refusal therefore causes same interference with respect for proposed home as for existing home: Forrest v. Housing Dept. (Minister) (Royal Ct.), 2013 GLR N [3]

refusal of licence not interference with European Convention, art. 8 rights if not cause of applicant’s need to take lodger to help pay rent or find other accommodation: Boulton v. Housing Dept. (Minister) (Royal Ct.), 2009–10 GLR N [9]

under European Convention, art. 8(2), Board to justify proportionate interference with applicant’s rights under art. 8(1) when rejecting application—required to identify to applicant what pressing need justifies interference, by specific reference to grounds stated in art. 8(2), e.g. economic well-being of Island, protection of rights and freedoms of others, etc.: Kinley v. Housing Dept. (Minister) (Royal Ct.), 2009–10 GLR 157

interference “in accordance with the law”. See Legal basis of interference with Convention rights—interference “provided by law”

margin of appreciation

state has smaller margin of appreciation when threat to individual’s intimate or key rights under art. 8: Thomas v. Housing Dept. (Minister) (Royal Ct.), 2007–08 GLR 251

“private life”

broad concept covering all aspects of physical identity and psychological integrity, right to establish and develop relationships with others and with outside world—personal autonomy and individual’s right to live as chooses underlie Convention guarantees: Thomas v. Housing Dept. (Minister) (Royal Ct.), 2007–08 GLR 251

consensual sexual acts. See Right to respect for private and family life—consensual sexual acts

European Convention, art. 8, protects right to personal development and making personal and working relationships with others—broad concept covering all aspects of personal development, physical identity and orientation, right to establish and develop personal and working relationships with others and with outside world—personal autonomy underlies Convention guarantees: Kinley v. Housing Dept. (Minister) (Royal Ct.), 2009–10 GLR 157

European Convention, art. 8, protects right to personal development and making relations with others and with outside world—breach of right if Department refuses to grant residential status and also declines to give firm commitments on duration of future occupational licences or give guidance on significance of possible changes in applicant’s circumstances—decision introducing unwarranted uncertainty into future position of long-term resident professional person interferes with right to personal autonomy protected by art. 8: Jolly v. Housing Dept. (Minister) (Royal Ct.), 2007–08 GLR 426

social ties established by long residence in Guernsey and presence of sibling and remoter relatives in Island are aspects of “private life” eligible to be given respect under European Convention, art. 8—less weight to be given to them if absence of dependency: de Sousa v. Law Officers (C.A.), 2014 GLR 107

qualified residential status

in exercising discretion under Housing (Control of Occupation) (Guernsey) Law 1994, s.10(2)(j)(iii) to make decision conferring status, Department to consider all circumstances of applicant since commenced residence in Guernsey up to date of decision—includes residence with parents, occupation under employment-related licence and all personal circumstances up to date of exercising discretion—failure to consider age, overall length of residence, commitment to permanent residence in Guernsey, essential nature of professional employment, etc., may be breach of right to respect for private life protected by European Convention, art. 8: Jolly v. Housing Dept. (Minister) (Royal Ct.), 2007–08 GLR 426

television licences

no breach of ECHR, art. 8 by requirement in Communications Act 2003, s.363 (as extended to Guernsey) that installation and use of television receiver requires licence with accompanying liability to pay fee: Elkington v. Law Officers (Royal Ct.), 2015 GLR 227

Right to stand for election. See Right to free elections—right to stand for election

Right to veto legislation. See Right to free elections—right to veto legislation

Security for costs. See Right to fair trial—access to courts

Television licences. See Freedom of expression—television licences. Peaceful enjoyment of possessions—deprivation of property. Right to respect for private and family life—television licences

Trial within reasonable time. See Right to fair trial—trial within reasonable time

Waiver. See Applicability of European Convention on Human Rights—waiver

Waiver of claim to protected right. See Conflict between protected rights—waiver