Human Rights and Damages - Washburn University School of Law

Human Rights and Damages

Professor J.A. Weirt

The changes in English law over the past few decades have been nothing short of revolutionary. They derive not only from external influences, principally those resulting from the nation's wholly unprecedented delegation of supreme legislative and judicial power to foreign bodies in Brussels, Luxembourg and Strasbourg, but also from internal developments whose effect, if not their underlying intention, has been to bring our law closer to that of our geographical neighbours of a different legal persuasion, and further from that of our historical allies and linguistic cousins, who shared our law or something like it. One of these changes is the introduction of a Bill of Rights into English law, with the requirement for our courts to have regard to what is decided elsewhere. It may be of some interest to attempt even a superficial comparison of the present position in England and Europe with that in the United States, especially as the Atlantic seems to have been a barrier to such comparisons. Europe is very parochial, of course/ but even so, it is surprising that those concerned with creating or opposing a United States of Europe have paid so little attention to the American experience, or that, for example, the body dealing with the problem of policing crimes involving the criminal laws and procedures of several states should sedulously ignore the precedent of the Federal Bureau of Investigation. 2

Physically speaking, the British Isles used to be one with continental Europe, that is, the peninsula at the western end of the

t Fellow of Trinity College, University of Cambridge, England. Presenter at Fall 2000 Ahrens Chair in Tort Law, Advanced Torts Seminar, October 23-28, 2000, Washburn Law School, Topeka, Kansas.

1. See, e.g., Friedrich Karl von Savigny, who should have known better, once wrote to a Briton that he had long been pained that "your country in all other branches of knowledge actively communicating with the rest of the world, should, in jurisprudence alone, have remained divided from the rest of the world, as if by a Chinese wall." PETER STEIN, LEGAL EVOLUTION 69 (1980); see also A. HAYWARD & HENRY E. CARLISLE, A SELECfION FROM THE CORRESPONDENCE OF ABRAHAM HAYWARD, Q.c., FROM 1834 TO 1884: WITH AN ACCOUNT OF HIS EARLY LiFE 15 (1886). The "rest of the world" from which English law was allegedly divided included at the time the United States, Canada, Australia, New Zealand, India, etc. Today's Europeans seem to think their comer the very navel of the world, the mesomphalos ges, much as the ancient Greeks thought of Delphi, where the oracle was. The very name chosen for the (nearly) common currency smacks of parochialism: other currencies do not have topographical names.

2. See J.R. Spencer, The Corpus Juris Project-Has it a Future?, 2 CAMBRIDGE YEARBOOK OF EUROPEAN STUDIES 355 (2000).

414 Washburn Law Journal [Vol. 40

continent of Asia. Then came the sea, the English Channel, which the Germans call the canal and the French the sleeve, and separated us from our neighbours. Vergil, from the leg of Italy, called us "toto divisos orbe Britannos," Britons separated from the whole world,3 although shortly thereafter England, unlike Germany, became part of the Roman Empire, and so remained for over 300 years. That left some mark on our road systems (straight and narrow) but none on our national consciousness (neither the one nor the other), and even less on our law, though Roman law had infiltrated Germany by the sixteenth century and France, at any rate in the South, retained it until 1804, when it was formally abrogated but substantially retained. To invaders from Normandy in 1066, the Channel, Canal or Sleeve proved no more an obstacle than the North Sea had done somewhat earlier to their fellow Northmen, the Danes and Vikings, whose mark on the map of England (as well as the calendar) is clear for all to see.4 In more recent times, however, it served as a welcome impediment to the military visitations envisaged by the French under Napoleon and the Germans under Hitler. Nowadays, invaders, in the form of rabid wildlife or illegal immigrants, can come dryfoot and hotfoot along the thirty-one miles of the Channel Tunnel, constructed by the not entirely amicable cooperation of French and English engineers, with funds provided by not entirely delighted investors. Cultural intrusion requires no physical carrier.

Shortly after the French victory over the Austrian army at Austerlitz a few days before Christmas 1805, and only a couple of months after the British defeat of the French navy at Trafalgar, Pitt the Younger, on seeing a map of Europe, could say: "Roll up that map; it will not be wanted these ten years,"s but the map has often been unrolled since then, with little flags marking the battle-lines and obeluses indicating the graves of the victims: those who speak respectively German, French and English have been at each other's throats on many occasions. But wiser counsels prevail; human nature changes for the better; scholars and civil servants have been arduously at work; pious and hortatory declarations have been indefatigably pronounced by politicians, generally ignorant of history and familiar with the geography only of airports, backed by the irrebuttable argument that we will all be richer if only we are nicer; and the question now is whether Europe, until recently only a geographical term, should become an economic, political and cultural unit, and above all, a legal one.

3. VIRGIL, ECLOGUE I 67 (1937). 4. Thurgarton in Nottinghamshire and Norfolk, Wednesday in the week. 5. 4 EARL PHILLIP STANHOPE, LIFE OF THE RIGHT HONORABLE WILLIAM PITT 369 (2nd ed.

1862).

2001] Human Rights and Damages 415

I. THE EUROPEAN UNION

Economics came first, and after the success of the Coal and Steel Communities, the European Economic Community was founded by the Treaty of Rome in 1957. There were six original members, France, Germany, Italy and the three smaller Benelux countries (Belgium, the Netherlands and Luxembourg). In 1973, Britain, Ireland and Denmark joined what was then really just an unobjectionable customs union. In 1986, however, the Single European Treaty, signed at Madrid, spoke in its Preamble (continentally drafted documents always have a long overture before the fat lady sings) of "ever closer union," and the European Union, of which the European Community (no longer purely economic) is the main pillar, was formed by the Treaty of Maastricht in 1991, in force 1993. This treaty was not warmly welcomed by the people in the various nations: the French referendum just squeaked through; it was accepted in the United Kingdom Parliament by a single vote, and Denmark rejected it, only to be told to go back and decide properly, as they meekly did.6 Some indication of the strength of feeling raised by the proposed union may be inferred from something the writer experienced in Amsterdam some fifteen years ago. On many walls there could be seen the remains of posters, which had been torn down from the hoardings. The original, when reconstructed, was a picture of Hitler with the text "A Unified Europe? That was my idea!" The question arises: who were the liberals, the opponents of Union who stuck the posters up or the opponents of free speech who tore them down?

Well, the Union is here, and the Treaty of Nice envisages its enlargement from its present 15 members (with a population of over 372 million) so as to include some or all of Poland, Hungary, the Czech Republic, Estonia, Slovenia, Cyprus, Malta, Romania, Bulgaria, Slovakia, Lithuania, Latvia, most of which have just escaped from another multilingual empire, though of a different economic creed. That European history is interesting-or at least has been so hitherto-seems beyond dispute.

Although it has diplomatic representation and power to conclude treaties, the European Union is not quite a state. It has, however, many of the features of a state. It has a legislature, indeed two. The powers of the unicameral Parliament with its 626 members7 are no longer negligible-it used to be no more than a talking-shop and gravy train, but the effective legislature is the Council of Ministers. It acts increasingly by qualified majority rather than unanimity, the member states having given up their veto on most matters, but it can legislate

6. No referendum can be held in Germany. 7. The ceiling of 700 fixed by the Treaty of Amsterdam has already been increased to 732 by

the Treaty of Nice.


only on the proposal of the Commission, the civil service and executive, consisting of twenty Commissioners, most of whom have been invalided out of political life in their own country.

II. THE LUXEMBOURG COURT

The real motor for integration, however, has been the Court of Justice of the European Communities. It has relentlessly insisted on the supremacy of Community law over the law of the member states. If "political" means "driven by policy," it would not be unfair to say that this Court is the most political court since the demise of the Supreme Court of the old Soviet Union. Here is one example of its fluid way with the text of the Treaty it is supposed to interpret in a juridical manner. A Briton visiting a relative in Paris was assaulted in the Metro and claimed compensation from the French equivalent of the Criminal Injuries Compensation Board. His claim was rejected on the ground that in order to qualify for an award one had to be either French or a citizen of a state with which France had a reciprocal arrangement. He went to Strasbourg to complain of this discrimination. Discrimination was indeed forbidden between citizens of member states, but only within the area of competence of the Community organs under the Treaty. The only arguably relevant area of competence was the freedom to provide and use "services,"s but this did not deter the Court, which held that governmental schemes for the compensation of victims of violent crimes fell within this description. 9

It is not only in the area of interpretation of texts that the Court has been dramatically creative. It requires the states, which in principle control procedural matters, to protect Community rights by providing remedies which are effective and equivalent to those for analogous rights under national law: if there are no such remedies, they must be invented. Thus, the English courts which never even contemplated issuing an injunction to prevent Ministers from implementing Parliamentary enactments were required to invent such a remedy whenever there was a plausible allegation that the enactment was incompatible with Community law. to The Court has created the novel tort of failure to legislate, by laying down that a state is liable in damages to persons hurt by legislation in breach of Community law. Likewise for failure to legislate, if it does not incorporate into national law the rights provided for in Directives,l1 the Court has power to

8. Now articles 49 and 50 EC. 9. See (Case 186/87) Cowan v. Le Tresor Public, [1989] E.C.R. 195.

10. See R. v. Sec'y of State for Transport, ex p. Factortame, (No.5) [2000] 1 A.C. 524 (H.L. 1999), applying Brasserie du Pecheur S.A. v. Federal Republic of Germany, [1996] Q.B. 404 (E.C.J. 1994).

11. Directives, unlike Regulations, are not self-executing, though public bodies are bound by


punish states for breach of Community law:12 it was only under the threat of swingeing daily fines that France finally incorporated the 1985 Directive on Product Liability13 (and is now being sued by the Commission for doing it wrong). At least the Community itself accepts the liability it so readily imposes: if a Community organ acts unlawfully, private parties directly affected have access to the Court, and may be

14 awarded damages. Thanks to the efforts of the Court, the reach of Community law is very great.

The speed of the development is all the more remarkable when one considers that the 1957 coalition was of independent states with a distinguished history as nations, if not as states,15 internally bonded and externally divided by distinct and mutually uncomprehended languages, and riven by major religious differences between the Protestant North and the Catholic South. By contrast, the states which in the late eighteenth century combined in the United States all spoke the same language, were not greatly divided by religious differences, and far from having been at war with each other had indeed been united in war with England. Most important of all, they had the same law. I give only two indications of the extent to which integration has occurred in Europe. First, although the law of product liability is not unified in the United States, which originated it, in Europe it has been integrated (up to a point) by the Directive of 1985.16 Secondly, no state in Europe can charge "out-of-state" tuition fees for college education: differentially high tuition fees in England are charged to those brought up in the language of instruction, such as Americans, Canadians and A 1· 17 . ustra lans.

III. EFFECT ON ENGLISH LAW

Community law has had a more far-reaching effect in Britain than in other member states, simply because the common law was more different, and the Community institutions and ethos were formed by nations impressed by civil law in one form or another. To give just one

them even if not incorporated. Liability for non-implementation was laid down in (Case C-6/90) Francovich v. Italian Republic, (1993)2 C.M.L.R. 66, (1995)1.C.R. 722.

12. See 1992 0.1. (C224) 61. 13. See Council Directive 85/374/EEC of 25 luly 1985 on the Approximation of the Laws,

Regulations and Administrative Provisions of the Member States Concerning Liability for Defective Products, 1995 0.1. (L21O) [hereinafter Products Liability Directive).

14. See 1992 0.1. (C224) 78, 1997 0.1. (C340) 294. The rules of standing to sue are very stringent. See ALBERTINA ALBORS-LLORENS, PRIVATE PARTIES IN EUROPEAN COMMUNITY LAW (1996).

15. Germany as a political unit dates only from 1871, Italy from 1860, Belgium from 1830, Luxembourg from 1890.

16. See Products Liability Directive, supra note 13. 17. Amusingly enough, Scotland may charge higher out-of-state tuition to the English, but not

to the Germans or Portuguese, for example. That is because neither England nor Scotland is a Member State-only the United Kingdom is a member state.


example, England had to revise its whole system of personal jurisdiction and adopt the Brussels Convention as drafted by our European allies: the age-old system that if you could catch the alleged debtor in England you could sue him here had to be abandoned in favour of the continental view that the debtor is in principle entitled to be sued only in his own jurisdiction. 18

But it is in the constitutional field that the changes have been most dramatic. The lynchpin of our unwritten constitution used to be the "sovereignty of Parliament," meaning not only that we make our own

19 law, but also that the courts must apply duly enacted measures regardless of their merits or content. In brief, there was no judicial review of legislation. Now we have it in full form.20 As stated above, if an Act of Parliament is incompatible with Community law as laid down by the court in Luxembourg, not only must the courts not enforce it, but they must enjoin the Minister from implementing it, and in certa in cases make the government pay for infringing the Community rights of citizens of any of the member states. Very considerable sums have consequently had to be paid to French turkey-farmers and Spanish fishermen.21

A. Self-inflicted Wounds

In addition to direct effects from Europe, there have been other effects which have ostensibly been self-generated, though they are doubtless reactive. There are numerous instances.22 For example, the English approach to statutory interpretation used to be very literal. This was justifiable on the basis that since Parliament could do whatever it wanted, it must, if it wanted to do something unwelcome, say so with

18. See Civil Jurisdiction and Judgments Act, 1982, c. 27 (Eng.), whose Schedule contains the Convention.

19. Sir John Davies, Attorney-General of Ireland perhaps went a little far in 1615 when he wrote that English law was:

[S]o framed and fitted to the nature and disposition of this people, as we may properly say it is connatural to the Nation, so as it cannot possibly be ruled by any other Law. This Law therefore doth demonstrate the strength of wit and reason and self-sufficiency which hath been always in the People of this Land, which have made their own laws out of their wisdome and experience (like a silk-worm that formeth all her web out of her own self onely), not begging or borrowing a form of Commonweal, either from Rome or from Greece, as all other Nations of Europe have done ....

J.G.A. POCOCK, THE ANCIENT CONSTITUTION AND THE FEUDAL LAW 33-34 (1957). 20. See, e.g., H.W.R. Wade, What has Happened to the Sovereignty of Parliament?, 107 L.O.

REV. 1 (1991). 21. Respectively after the cases of Bourgoin S.A. v. Ministry of Agriculture, [1986] O.B. 716

(Eng. CA.), doubted in Kirklees Metropolitan Borough Council v. Wickes Building Supplies [1993] A.C 227 (H.L. 1992) (Sunday trading), and R. v. Sec'y of State for Tran sport, ex. p. Factortame, (No. 5) [2000]1 A.C 524 (H.L. 1999).

22. The most recent is a new method of citation of judicial decisions, mandatory in court. In [4.1] (now the proper way to cite paragraphs of a text) we read "[t]he changes described in this practice direction follow what is becoming accepted international practice." Here "international" means "European." Practice Direction (Judgments: Form and Citation) of 16 Jan. 2001, THE TIMES Jan. 16 2001.


unmistakable clarity. As one judge put it, quoting another, "[t]he courts are not so much concerned with what the legislature aims at as with what it fairly and squarely hits.,,23 Such an attitude was naturally anathema to continental jurists who believe or profess to believe that the only true law is law laid down and that the courts should loyally cooperate with the lawmaker (as they did in Germany in the 1930s). Their approach is less logical and more teleological, their construction purposive rather than literal, helping the incoherent legislator out of his self-made difficulties. This approach has now been adopted in England,24 along with the cognate practice, previously not domestically known, of reading Hansard, the equivalent of the Congressional Record.25 Other changes not overtly designed to bring us into synch with our colleagues across the Channel have the same effect. Our new Civil Procedure Rules themselves effect changes which are little short of revolutionary, seeking to replace the contestative and in-your-face nature of civil litigation with general helpfulness between the parties, subject to much greater "case management" by the judges.26 No longer is the judge simply an umpire only occasionally calling "foul" while the parties led in their witnesses to lie on their behalf. Now he can refuse permission for witnesses to be heard, and strikingly, can himself determine who the single expert witness will be, if the expert witnesses chosen by the parties cannot agree a joint report. None of this was openly designed to bring us into line with practice elsewhere, but that is so manifestly its effect that one can infer the underlying purpose.27

B. Rights and Duties

Enough has been said to show that English law has already been fundamentally altered by our participation in Europe. Nothing else could have been expected to result from the unprecedented transfer of supreme legislative and judicial power to bodies composed largely of persons not only not trained in our law but antipathetic to it as so different from their own. One of the differences is that continental systems were more overtly committed to rights than the common law of England, which never accepted the right to strike, for example. In

23. Race Relations Bd. v. Charter [1972]1 All E.R. 556, 562 (C.A. 1971) (Stephenson L.JJ.). 24. Litster v. Forth Dry Dock and Eng'g Co. Ltd., [1990] 1 A.c. 546 (H.L. 1989). Member

states must, if at all possible, construe their legislation so as to be compatible with Community law. See Marieasing v. La Commercial Internacional de Alimentacion SA, [1990] E.C.R. 1-4135.

25. See Pepper v. Hart, [1993] A.C. 593 (H.L. 1992). 26. Civil Procedure Rules (1998) S.l. 1998/3132, issued under Civil Procedure Act 1997, and

very frequently amended, often to take account of the Human Rights Convention, especially Art. 6 (fair trial).

27. What seem to be unnecessary changes in terminology ("disclosure" for "discovery", "claimant" for "plaintiff') admittedly bring us no nearer to Europe but certainly distance us from fellow common-lawyers. Paradoxically enough, this is true also of the discountenancing of legal Latin.


Germany, for example, the basic tort article of the Civil Code provides for liability if the defendant has wrongfully, intentionally or by negligence, caused damage by invading the claimant's "life, body, health, liberty, ownership or other right;" and the two "other rights" which the Courts have included are, unwisely, the right to an established and operative business (Recht am eingerichteten und ausgeiibten Gewerbebetrieb) and, very importantly, the "ieneral right of human personality" (allgemeines Personlichkeitsrecht).2 There has been endless discussion for over thirty years of the impact on the private law of tort of the fundamental rights listed in the Basic Law of 1949 (Drittwirkung),29 and one commentator has observed that "[t]ort law in Europe today is increasingly seen as a kind of concretisation of the fundamental rights enshrined in constitutional law. In France, the situation is more complex, for while the Code civil now provides in Article Nine that "[e]veryone has the right to respect for his private life" and invasions of that right are regularly sanctioned in damages,30 the courts have rejected the idea that tort liability in general depends on the invasion of a right, or even of a legitimate interest.31 As against this, France, which has an entirely separate system for dealing with complaints against public officials (they go to the Conseil d'Etat rather than the Cour de Cassation), initiated the human rights movement with its famous "Declaration des droits de l'homme et du citoyen" of 1789, the year of the Revolution, not itself famous for respecting rights. The Declaration ceased to have force after Napoleon and the Restoration, but it was resuscitated in the Preamble to the Constitution of 1946 and given constitutional force by the Conseil Constitutionnel on 16 July 1971.32

It has not been easy for English law to accommodate Community rights, especially when claims for damages are brought for their invasion. Infringing the rights of others is not as such a tort in English law, although the tort of trespass, as we shall see, covertly has this effect in respect of a very limited number of rights, none of them economic, as Community rights tend to be. The courts, therefore, have to struggle to categorise a liability whose existence they cannot deny, and the best

28. See Basil Markesinis, The Law of Torts: A Comparative Introduction in 2 THE GERMAN LAW OF OBLIGATIONS 61-66 (3rd ed. 1997).

29. See Basil Markesinis, Privacy, Freedom of Expression and the Human Rights Bill: Lessons from Germany, 115 L.Q. REV. 47 (1999); Basil Markesinis & S. Enchelmaier, The Applicability of Human Rights as between Individuals under German Constitutional Law, in 4 CLIFFORD CHANCE LECTURES 191 (Basil Markesinis ed., 1999); C. VON BAR, THE COMMON EUROPEAN LAW OF TORTS 569-620 (1998).

30. Characteristically for the protection of rights, the French courts require proof neither of fault nor of damage for a claim for invasion ofthe right granted by CODE CIVIL [CO CIv.) art. 9 (Fr.).

31. See The Dangereux case, Court of Cassation, Chambre Mixte, Feb. 27, 1970, J.C .Po 1970, II, 163050

320 See Jo Gicquel, L'applicabilite Directe de la Norme Constitutionnelle, in Mo DELMAS-MARTY & CoL. DE LEYSSAC, LIBERTES ET DROITS FONDAMENT AUX 238-49 (1996)0


they can do is to say that the liability is for "breach of statutory duty," even if it is cumbersome to formulate a right in terms of the duty to

. 33 respect It.

The difference in approach can be seen in recent litigation. 34 Claims were brought against the Bank of England by depositors in a bank, now hopelessly insolvent and wound up, on the ground that the defendant should have exercised its power to close it before the deposits were made. One issue was whether the depositors were beneficiaries of rights under the First Council Banking Directive from Brussels;35 the other was whether the defendant Bank was in breach of its duty of care at common law (certainly not!) or guilty of the tort of misfeasance in public office, which requires conscious wrongdoing and awareness of the consequences.

IV. THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND THE STRASBOURG COURT

Just as judicial review of legislation is not the only constitutional novelty of recent years, Community rights are not the only new rights that English law has had to accommodate. We now have a Bill of Rights, although we have no written constitution (apart from the Treaty of Rome and subsequent treaties) to which to append it.36 Our present Bill of Rights comes to us not from Luxembourg, but from Strasbourg.37 The European Court of Human Rights in Strasbourg is not a manifestation of the European Community or Union, as it now is, but of the Council of Europe, a body with many more members (forty-three at present!) but nothing like so many powers. It can initiate treaties, but has no

33. Bourgoin S.A. v. Ministry of Agriculture, [1986) Q.B. 716 (C.A. 1985), doubted in Kirklees M.B.C. v. Wickes Building Supplies, [1993) A.C. 227 (H.L. 1992); if breach of statutory duty is not very apt to deal with the vindication of Community rights, much less is the tort of misfeasance in public office, whose requirements are much too stringent.

34. See Three Rivers Dist. Council v. Bank of England, (No.3) [2000)3 All E.R. 1 (H.L.). 35. See Council Directive 771780/EEC of 12 December 1977 on the Coordination of the Laws,

Regulations, and Administrative Provisions Relating to the Taking up and Pursuit of the Business of Credit Institutions, 1977 O.J. (L322), purportedly implemented by Banking Acts 1979 and 1987. If the implementation was inadequate, the Bank would be bound by the Directive, since the Bank is a public authority. In order for direct effect to apply, the right conferred must be quite precise. See Gibson v. East Riding of Yorkshire Council, [2000)3 C.M.L.R. 329 (C.A.). In the United States also, there is much case law on the question when a statute creates a right specific enough to attract constitutional protection under §1983. See Harris v. lames, 127 F.3d 993 (11th Cir. 1997); Blessing v. Freestone, 520 U.S. 329 (1997).

36. The Bill of Rights of 1689 has had very little judicial significance, whatever its historical and political role. But in the Petition of Right (1628) we find the fateful words "due process of law" and "by colour thereof." Petition of Right, 1628, c.1, s. 4, 9 (Eng.).

37. Under Community law at present, Community institutions, but not member states, are required to respect fundamental rights, as guaranteed by the European Convention .... " 19970.1. (C340) 145 (previously Art. F). The Community was prevented by a decision of the Luxembourg Court from itself acceding to the Human Rights Convention, Opinion 2/94, Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms, [1996) ECR 1-1759 (March 28), but is proposing to adopt an even more extensive Bill of Rights, to whose incorporation as law Britain is, probably ineffectually, opposed. This was discussed at the meeting to draft the Treaty of Nice, December 2000.


legislative functions: its most important feature by far is the Court, whose remit is to ensure that member states respect the rights conferred on citizens by the European Convention for the Protection of Human Rights and Fundamental Freedoms. Unlike the Treaty of Rome, Britain was in the forefront of the drafting of this Convention, and in 1951 was the first to ratify it, but the Convention was not carried into national law until the Human Rights Act 1998, in force 1 October 2000. Prior to that, the United Kingdom had frequently been held to be in breach of the Convention at the instance of individuals, who were allowed to bring suit after 1966. The oddity in England was that the national courts could not apply the Convention, since it was no part of English law, but if they applied national law, as they were bound to, in a manner which infringed the convention rights of a litigant, the United Kingdom would be held liable in Strasbourg.38 Of course Strasbourg is not a court of appeal from the English courts, it reviews the compatability of the conduct of public authorities with the obligations of the Member States to respect the Convention rights of individuals; in principle, indeed, one must exhaust one's rights of appeal before seeking a decision of the Strasbourg Court. The Court is, however, empowered to award damages to a successful claimant, though, as we shall see, this is done in a less than very generous manner.

Although our concern in this piece is not with judicial review of legislation allegedly at variance with protected rights, but rather with the question whether an individual whose rights have been invaded may claim damages, and if so, from whom, it must be noted that Community rights and Convention rights, that is, rights from Luxembourg and Strasbourg respectively, operate in quite different ways in English courts. Community rights are automatically enforceable even in the teeth of an English statute while Convention rights yield to an English statute, and indeed yielded to English common law until the enactment of the Human Rights Act 1998. In both cases, the courts are required, if at all possible, to interpret Acts of Parliament in a manner consistent with respect for Community law or Convention rights, as the case may be.

In fact, our courts were influenced by the Convention of Human Rights even before it was enacted, not only with regard to statutes, which they sought to construe in a manner compatible with the state's international undertakings, but also as regards the common law. Take

38. Between 1966 and 1995 the United Kingdom was held in breach on thirty-seven occasions, fifteen of such cases leading to primary legislation, such as the Interception of Communications Act 1985, pursuant to the Malone v. U.K., case on telephone tapping, [1979] Ch. 344, [1984]7 Eur. H.R. Rep. 14. See also Conor Gearty, The United Kingdom, in CA. GEARTY, EUROPEAN CIVIL LIBERTIES AND THE EUROPEAN CONVENTION ON HUMAN RIGHTS: A COMPARATIVE STUDY 100-01 (1997).


free speech, for example. Readers who recall that the English law of defamation was held fundamentally incompatible with the First Amendmene9 may even so be astonished to learn that in England, until recently, units of government themselves were held entitled to sue as if they were private parties: indeed one abject municipality got a citizen enjoined from further criticism and bankrupted him. 40 When overruling this decision twenty years later, the Court of Appeal alluded to the Convention, not yet in force in England, but the House of Lords felt able to hold that their decision could be justified as common law, regardless of the Convention. 41 Likewise, on the controversial matter of the right of privacy, the Court of Appeal's recent holding that liability for breach of confidence might attach to material not confided but otherwise obtained-42 has explicitly brought the developing common law into line with the Convention.

The enactment of the Human Rights Act 1998 has been the cause of febrile excitement unexampled in Britain since the death of Princess Diana, when upper lips, traditionally stiff even in private, publicly trembled in a deplorably lachrymose manner. In order to explore or exploit its ramifications, dedicated chambers of barristers have been set up, judges have been sent on special training courses, legal aid has been made available for lawsuits involving serious allegations of infringements, and there has been a Deucalian flood of publications and articles.43 One expects, and already begins to see, a "torrent of litigation,,44 such as was provoked under 42 U.S.c.A. Section 1983

39. See New York Times v. Sullivan, 376 U.S. 254 (1964); see also Telnikoff v. Matusevich, 702 A2d 230 (Md. 1997), rightly refusing to enforce a House of Lords judgment in a defamation case. English common law has now increased the qualified privilege of the press, but not gone so far as New York Times or the Australian courts. See Reynolds v. Times Newspapers, [1999]4 All E.R. 609 (H.L.). The New Zealand courts have found Reynolds too restrictive, and refuse to follow it. See Lange v. Atkinson, [2000]8 B.H.R.C. 500 (C.A.).

40. See Bognor Regis Urban Dist. Council v. Campion, [1972] 2 Q.B. 169, criticised by J.A Weir, Local Authority v. Critical Ratepayer-A Suit in Defamation, [1972] CAMBRIDGE L.J. 238.

41. Derbyshire County Council v. Times Newspapers, [1993] AC. 534 (H.L. 1992), on appeal from [1992]2 Q.B. 770. Note, however, that the individual councillors themselves remained entitled to sue, subject now to the increased qualified privilege of the press, as laid down in Reynolds v. Times Newspapers [1999]4 All E.R. 609 (H.L.).

42. See Douglas v. Hello!, [2001] E.M.L.R. 9. 43. The Home Office has issued Guidance for Departments, at

http://www.homeoffice.gov.uk/hractlguidance.htm. 44. HARPER JAMES & GRAY, 5 THE LAW OF TORT 742 §29.15A (1986). The Digest of cases

under §1983 occupies nearly 1,100 pages of U.S.C.A. (1994)! Since the Human Rights Act 1998 only came into force on 2 October 2000 (to give people time to absorb its probable impact), there have not yet been very many cases; but already 129 judges in Scotland have been removed from the office of temporary sheriff, though they did a quarter of that court's work, on the ground that their "independence" was suspect, since their renewal in office depended on the Lord Advocate, who appointed them. See Starrs v. Procurator Fiscal, Linlithgow, [1999] 8 B.H.R.C. 1 (Court of Session); Clancy v. Caird, [2000] H.R.L.R. 557. The legislation about appeals on planning decisions has been brought into question. See R. v. Sec'y of State for the Env't, [2000] All E.R. 2264 (D); County Properties v. Scottish Ministers, (Court of Session) [2000] H.R.L.R. 677; and Art. 6 may even have an effect on the multiple roles of the Lord Chancellor Uudge, Speaker of the House of Lords, member of the Cabinet). Very surprisingly, the first English case in which a declaration of incompatibility was considered appropriate involved a provision ofthe Consumer Credit Act 1974, which barred th e right


(hereafter simply Section 1983) when it was plugged in by Monroe v. Pape in 1961.4 It will be well to give a sober description of the Act.

The Act sets out in a Schedule most of the articles of the Convention and calls the rights contained therein "Convention Rights." Central is section 6 of the Act: "[i]t is unlawful for a public authority to act in a way which is incompatible with a Convention right." "Public authority" includes "a court or tribunal." The Act does not permit the courts to invalidate Parliamentary legislation incompatible with the Convention, in the way they can and must if the legislation is incompatible with Community law. They must first of all, "[s]o far as it is possible to do so," read and give effect to legislation in a way which is compatible with the Convention rights (section 3(1»; if it is not possible, they must apply the law and may make a "declaration of incompatibility" (section 4), following which the relevant Minister has special powers to make the law compliant (section 10). Delegated legislation and administrative decisions may, of course, be treated as void if incompatible with Convention rights.

A question that has been more than fully ventilated, without agreement being reached, is whether it is unlawful for an individual to act in a manner that infringes another individual's Convention rights. The argument goes that if a court held that such conduct was not unlawful, the court itself, as a public authority, would be acting in a manner incompatible with the party's convention rights, and this would be true whether the court made a positive order or not, since a failure to act is specifically equated with an act (section 6(6».46 As against this, it is said that the rights are inherently good only against public authorities, since only states can be held liable under the Convention.47 It is true that actions against the press (not public authorities) is envisaged by section ten of the Act, but that section simply warns courts not to interfere with the right of freedom of expression, so although the Convention may well be invoked in litigation between private parties, it is not shown that it can serve as a ground of action. The trans-Atlantic analogues of Shelley v. Kramer48 and New York Times v. Sullivan 49 seem to have had but little in the way of successors.

of a lender to enforce rights embodied in a formally defective document; this might be disproportionate under art. 6 (right to a fair trial) and contrary to Protocol 1, Art. 1 (peaceful enjoyment of property). Odd that the Human Rights Act should so benefit a pawn-broking firm? See Wilson v. First County Trust, [2001]2 W.L.R. 302 (C.A. 2000).

45. 365 U.S. 167 (1961). 46. See H.W.R. Wade, Horizons of Horizontality, 116 L.Q. REV. 217 (2000). 47. See R. Buxton, The Human Rights Act and Private Law, 116 L.Q. REV. 48 (2000); Anthony

Lester & David Pannick, The Impact of the Human Rights Act on Private Law: The Knight's Move, 116 L.Q. REV. 380 (2000); Nicholas Bamforth, The Application of the Human Rights Act 1998 to Public Authorities and Private Bodies, [1999] CAMBRIDGE L.J. 159.

48. 343 U.S. 1 (1948). 49. 376 U.S. 254 (1964).


A. Pre-Existing Law

At quite an early stage, the Strasbourg Court observed that the "machinery of protection established by the Convention is subsidiary to national systems of safeguarding human rights.,,50 To see the rights protected by pre-existing law one must focus on the law of trespass. There we see that the protected rights are liberty of movement, corporeal integrity and property in one's possession. These rights were very well protected: the victim had only to allege an invasion directly due to a positive act of the defendant. It is true that invasion by inaction, actionable in principle under the Act, was not redressible in trespass law, but damages were payable even if the claimant could not prove that he suffered any actual harm from the invasion of his right. Nor was there any general justification that what the defendant did was reasonable: in order to avoid being held liable in damages, the defendant must establish some legal right or privilege to do the impugned act. This indeed pre-echoes the draftsmanship of the Convention, which first states the right and then lays down the circumstances in which an invasion is permissible. The restricted range of the rights protected by the law of trespass must be noted. In particular, there is no protection for procedural rights or economic rights or the right of free expression, or indeed for privacy unless physical space is invaded, and no protection if the invasion is indirect. 51 Nevertheless, perhaps in contrast with the law in the United States, the tort of trespass retained its use as a powerful means of protecting several "constitutional" rights, especially corporeal integrity and freedom from arrest, so much so that in 1998, the Court of Appeal felt moved to cap the damages, payable from public funds, which juries were in the habit of awarding against the police. 52

Although trespass originated in private law, it was held in one of the most important decisions of the common law that a suit for trespass lay as well against a Minister as a private citizen. 53 Officials are, of course, often equipped by law with powers not conferred on the citizen, and provided that they respect the limits and purposes of their powers, police constables may arrest, stop, search and enter premises where the private citizen may not. But what about the government itself? Here, English law drew a distinction between local and central government.

50. Handyside v. U.K., [1976]1 Eur. H.R. Rep. 737, 753. 51. Liability in negligence may well exist, but there are major problems with claims against

public authorities, especially where they are charged with failure to exercise their powers. As was said by Auld LJ., "[t]he law is on the move and much is uncertain." Phelps v. Hillingdon L.B.C., [2000]4 All E.R. 504, 509 (H.L.).

52. Thompson v. Comm'r of Police, [1998] Q.B. 498. (C.A. 1995). It has previously done likewise with regard to awards in defamation cases, the only other important situation where English practice retains a civil jury. See John v. MGN Ltd., [1997] Q.B. 586 (C.A. 1995).

53. See Entick v. Carrington, 95 Eng. Rep. 807 (1765).


Central government was immune from suits in tort until the Crown Proceedings Act 1947, whereas local governmental units became fully liable as soon as the courts in the mid-nineteenth century abandoned their briefly held view that vicarious liability did not attach to non profit-making bodies.54 The normal rules of vicarious liability attach to government servants, even for the growing tort of "misfeasance in public office.,,55 Unlike the Federal Tort Claims Act and many state statutes following on it, which excluded state liability for specific torts56

(actually those most likely to result in invasions of constitutional rights), the British Crown Proceedings Act of 1947 contains no such exclusions. It is to be noted, however, that until 1964,57 when public money was made available, no one was answerable for the wrongs committed by policemen except the policemen themselves; they were said to be servants of the public and not employed by anyone.

B. Human Rights and Tort

The rights introduced by the Human Rights Act are much more extensive than those protected by the common law of trespass.58

Trespass protects physical invasions of a person's home and correspondence, for example, but the Convention right to respect for private and family life, home and correspondence can be invaded without any physical act, as was discovered in the telephone-tapping case where English law had to be changed after an adverse decision in Strasbourg.59 The right contained in the First Protocol, namely the "peaceful enjoyment of possessions," seems on its face to mirror the property right protected by trespass law, but it is understood to include

54. Mersey Docks and Harbour Bd. v. Gibbs, L.R. 1 H.L. 93 (1866). In 1893, indeed, the Public Bodies Protection Act was passed to protect public bodies from lawsuits, by shortening the time-bar and laying down a punitive rule as to costs.

55. Racz v. Home Office, [1994]2 A.c. 45 (H.L. 1993). 56. Assault, battery, false imprisonment and false arrest, malicious prosecution, abuse of

process, libel and slander, misrepresentation and deceit, and inte rference with contractual rights. See 28 U.S.C.A. §2680 (1994 & Supp. 2000). Liability for assault, battery, false imprisonment, false arrest, abuse of process and malicious prosecution was accepted in 1974 in cases where the gUilty party is an "investigative or law enforcement" officer of the United States Government. See 28 U.S.c.A. §2680(h) (1994 & Supp. 2000). There is, thus, vicarious liability for breaches of the Fourth Amendment by such officers. See Norton v. U.S., 581 F.2d 390 (4th Cir. 1978).

57. See Police Act, 1964, s. 48 (Eng.), now Police Act 1996, s. 88 (Eng.). 58. On trespass and human rights, see Lord Bingham, Tort and Human Rights, in PETER CANE

ET AL., THE LAW OF OBLIGATIONS 1-12 (1998); Sir Anthony Mason, Human Rights and the Law of Torts, in id. at 13-34. Lord Woolf has observed that "[i]t is possible to view what is happening as the creation for this country of a new code of torts: 'Human Rights Torts .... '" Preface to ANTHONY PAUL LESTER ET AL., HUMAN LAW RIGHTS AND PRACTICE (1999). The Supreme Court of the United States has made it clear that the reach of section 1983 is greater than that of the common law of torts. See Kalina v. Fletcher, 522 U.s. 118 (1997).

59. See Malone v. Metropolitan Police Comm'r, [1979] Ch. 344; Malone v. U.K., [1984] 7 Eur. H.R. Rep. 14; Interception of Communications Act, 1985 (Eng.). Since then, a breach was found where an employer listened in to telephone conversations in the office. See Halford v. U.K., [1997]3 B.H.R.C. 31.


financial interests not concretised in physical form. 60 Quite importantly, whereas trespass requires a positive act, Convention rights may be infringed by a failure to act when action is required. On the other hand, a claim for invasion of Convention rights lies only against a public authority, at any rate until the debate on horizontal effect is concluded.61

It is with regard to defences rather than the claimant's cause of action that the Act will have its major effect in trespass litigation. While it is true that statutory provisions cannot be invalidated by the courts even if they empower an official to invade a protected right, such legislative privileges must now be very restrictively interpreted so as to comply with the Convention, if possible. This is not entirely unprecedented. As early as 1863, trespass liability was imposed on a local authority which had statutory power to knock down any building of whose erection it had not been given notice and did in fact knock down such a building without itself giving notice that it was about to do SO.62 Although it has been traditional to construe statutory powers narrowly when they invade important rights, there are many situations where it is a defence that the defendant behaved reasonably in all the circumstances, but even where the defence of reasonable conduct is accepted by the English court or jury, Strasbourg may not be happy with it, preferring a test of proportionality, which is not quite the same.

The right most frequently involved in litigation in Strasbourg is Article Six, which gives the right to a fair tria1.63 The connection with tort law is not evident, especially as our Act makes special provision for claims against a court (section 9), but its application by the Strasbourg Court has caused consternation to tort lawyers and a major alteration in our civil procedure. In the Osman case, a school-teacher who nourished an unhealthy interest in a pupil began to harass and threaten the boy's family. They went to the police. Though the police were aware of the identity of both the culprit and his target, they did nothing effective, and the teacher shot the father fatally and wounded the boy. When suit was brought against the police, the Court of Appeal held that the claim was properly struck out, in the light of a House of Lords decision that it was against public policy to hold that the police owed any duty to take care as regards their criminal investigations. The Strasbourg Court held that the claimants had been denied a fair trial (notwithstanding that the

60. Pressos Compania Naviera S.A. v. Belgium. [1996] 21 Eur. H.R. Rep. 301,302; WALTER VAN GERVEN ET AL., CASES, MATERIALS AND TEXT ON NATIONAL, SUPRANATIONAL AND INTERNATIONAL TORT LAW 936 (2000).

61. See Human Rights Act, 1998, s. 6 (Eng.); supra text to note 45. 62. See Cooper v. Wandsworth Bd. of Works, 143 Eng. Rep. 414 (1863). 63. This article has occasioned the removal of a large number of judges in Scotland, the

invalidation of the courts' martial system, see Hood v. U.K., [2000] 29 Eur. H.R. Rep. 365, and aspects of the planning legislation. A prime candidate for a declaration of incompatibility is Social Security Administration Act 1992, section 1l0ZA, which permits the Inland Revenue to enter and search any business premises without a warrant or reasonable suspicion of wrongdoing.


Court of Appeal had applied the law on the assumption that everything the claimants asserted was true), and awarded them damages for the loss of the chance that they might have succeeded if there had been a trial with witnesses and the full facts had emerged.64 A minority of the court also held that the United Kingdom was in breach of Article Two, which confirms the right to life, thereby indicating that the right may be infringed by inaction. The government has since accepted the incompatibility with Article Six of an important decision in which the House of Lords struck out claims for unreasonable use or failure to use local governmental powers to prevent child abuse or provide educational facilities,6S and the House of Lords has, therefore, virtually abandoned its useful practice of striking out claims on the pleadings. In consequence, there will now be more futile and wasteful trials on the facts, which, in the case of public authorities, distract them from attending to their public activities.66 Quite apart from the procedural consequences, it may be noted that a text ostensibly concerned with process was given substantive effect, as is evident in subsequent decisions of the House in the areas of child abuse and educational malpractice.

V. THE UNITED STATES

Let us now turn to the United States, which, like England had always had the common law of trespass but was two centuries in advance of it in having a Bill of Rights, even if it was not until 1961 that invasions of those rights became commonly actionable in damages as such. Again, we shall leave aside the effect of constitutional rights in invalidating legislation and concern ourselves with tort analogues,67 where damages may be claimed by the victim of unconstitutional action, especially under Section 1983.

It appears that the constitutional use of trespass claims was less effective in the United States than in England. The explanation is not obvious, and cannot be that claims against the municipality were barred by government immunity, because in England also, though for a different reason, there was no vicarious liability for the actions of the police; nor can it be that victims were reluctant to sue the individual officer, for that is now done daily under Section 1983. What is true,

64. See Osman v. U.K .• [2000]29 Eur. H.R. Rep. 245. [1998] 5 B.H.R.C. 293, [1999]1 F.L.R. 193.

65. See X v. Bedfordshire County Council, [1995]2 A.C. 633 (H.L. 1994). K.L. v. U.K. [2000] F.C.R. 274.

66. See, e.g., Barrett v. Enfield London Borough Council. [1999]3 W.L.R. 79 (H.L.); Phelps v. London Borough of Hillingdon, [2000]4 All E.R. 504 (H.L.).

67. Thus, failure to give a Miranda warning will lead to the exclusion of the evidence. but not to a claim under §1983. See Neighbour v. Covert 68 F.3d 1508 (2nd Cir. 1995). cert. denied 516 U.S. 1267 (1996).


however, is that governmental immunity was much more widespread in the United States, for it applied not only to the federal government and state governments, but also to municipalities, whereas in England it applied only to the Crown, that is, the central government, and not to local authorities.

When the immunity of the federal government was lifted in 1946, immunity was retained in respect of several nominate torts,68 but many of these are now included if committed by federal law enforcement officers. More recent changes have had the result that it is only in respect of constitutional violations that the government employee remains personally liable for conduct for which the government would be vicariously liable.69 In England, by contrast, central government has no relevant immunity in tort, vicarious liability attaches even where the employee is guilty of misfeasance in public office, and the employee remains personally liable. Before the Strasbourg Court, the state itself is the sole possible defendant, and it alone can be sued for the tort of failure to legislate so as to confer on citizens the rights envisaged by a Community Directive.70 As to lower organs of government in the United States, if one can so describe the several states (and one can certainly so describe the member states of the European Union), they tend to have an immunity mirroring that of central government, whereas in England local governmental units have never enjoyed such immunity.

VI. CONVENTION AND CONSTITUTIONAL RIGHTS

The rights accorded by the European Convention naturally differ in their terms from those entrenched in the Bill of Rights in the U.S. Constitution, but there is a substantive overlap. The rights under the First Amendment are broken up: religious freedom is protected by Article Nine, freedom of expression by Article Ten, and freedom of assembly by Article Twelve. The Fourth Amendment's "right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures" is protected by Article Five (liberty and security of person) and Article One of the First Protocol (peaceful enjoyment of one's possessions), as well as Article Eight (respect for private and family life). The Convention does not contain any specific right to avoid self-incrimination analogous to that of the Fifth Amendment, but the Court has held that it is implicit in Article Six,71

68. See Racz v. Home Office, [1994]2 A.c. 45 (H.L. 1993). It is possible to get around this. In Sheridan v. U.S., 108 S.Ct. 2449 (1988), a claim lay where a drunk off -duty sailor shot people in a car, on the basis that the Navy had undertaken not to allow its personnel to have guns.

69. The Westfall Act, 28 U.S.c.A. §2679(b)(2)(A) (1994). 70. Failure to legislate is actionable only under Community law. The Human Rights Act, 1998,

c. 42, s. 6(6) (Eng.), excludes such liability (s. 6(6)), though Strasbourg may find existing law incompatible; there can of course be no such liability in the United States.

71. See Saunders v. U.K., [1996]23 Eur. H.R. Rep. 313; on entrapment, see Teixeira de Castro


which accords the right to a fair trial, not just in criminal prosecutions (as under the Sixth Amendment) but in civil matters as well.72 Likewise that article has been held relevant to the question whether evidence illegally obtained may be admitted at trial, though no firm exclusionary rule has been adopted. 73 As for the cruel and unusual punishments in the Eighth Amendment, Article Three of the Convention prohibits inhuman and degrading treatment, breaches of which have been found in a case where a nine-year old was beaten by his step-father in a manner which the jury found reasonable,74 and in a case where the United Kingdom was proposing to extradite a murder suspect to the United States, where he faced a period on death row.75 There is no potentially open-ended category of the "privileges or immunities" of the Fourteenth Amendment, restricted though it has been by the Supreme Court.76 Nor does the Convention contain any general requirement of "equal protection," though Article Fourteen prohibits discrimination in connection with Convention rights,77 and a law which operates in a discriminatory manner cannot constitute a defence to a shown invasion of a specific right.78 Recently, however, the Council of Europe has proposed a Protocol Twelve that prohibits discrimination as regards all

v. Portugal [1999]28 Eur. H.R. Rep. 101, where the Court said: "that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court's task under the Convention is ... to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair."

72. A vast number of successful complaints (mainly from Italy) relate to delay in hearing and terminating lawsuits and prosecutions: delay in deciding on the order for costs of litigation in England was held wrongful in (Case no. 118/1996/737/936) Robins v. U.K., [1998] Eur. H.R. Rep. 527. In the United States, the Sixth Amendment, requires a speedy criminal trial. See Klopfer v. North Carolina, 386 U.S. 213 (1967).

73. See (Case 35394/97) Khan v. U.K., [2000] 8 B.H.R.C. 310 (covert listening device: admission of evidence no breach of Art. 6, but use was breach of Art. 8, not justified because law imprecise, and breach of Art. 14 (no adequate remedy». At common law, cogent evidence was admissible though illegally obtained. Now the court has discretion to refuse to admit it. See Police and Criminal Evidence Act, 1984, s. 78 (Eng.).

74. See A v. U.K., [1998] 5 B.H.R.C. 137, [1999] 27 Eur. H.R. Rep. 611 (£10,000 for nonpecuniary damage).

75. See Soering v. U.K., [1989]11 Eur. H.R. Rep. 611. The death penalty itself is abolished by Protocol no. 6.

76. Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (Rehnquist C.l.). [W]e have held that, in addition to the specific freedoms protected by the Bill of Rights, the "liberty" specially protected by the Due Process Clause includes the rights to marry, to have children, to direct the education and upbringing of one's children, to marital privacy, to use contraception, to bodily integrity, and to abortion .... But we have always been reluctant to expand the concept of substantive due process because guideposts for responsible decision-making in this uncharted area are scarce and open-ended.

[d. (quoting numerous cases). 77. This is generously interpreted, for in Salgueiro da Silva Mouta v. Portugal, 21 December

1999, (Case 33290/96) unreported, the Court held that the specific grounds were not exhaustive, and that though "sex" did not include "sexual orientation," the latter was covered by analogy.

78. See Abdulaziz v. U.K., [1985] 7 Eur. H.R. Rep. 471. Although it was within the United Kingdom's margin of appreciation under Art. 8 (respect for family life) to restrict the right of wives to have their husbands join them, it was impermissible to do so when it was easier for husbands to obtain entry for their wives. One can perhaps compare Balisteri v. Pacifica Police Dep't, 901 F.2d 696 (9th Cir. 1988): though the police might owe no due process duty to protect battered wives, they might be liable if their conduct was discriminatory against them.


legal rights, whether or not protected by the Convention. Britain is I . 79

apparent y not eager to sIgn. The reason for the discerption of rights in the Convention which

are amalgamated in the American Bill of Rights is doubtless that after enunciating each right the Convention proceeds to lay down justifications for its invasion. In this, it is rather like the common law of trespass, save that the Convention rights are much more numerous and extensive. For example, where the Fourth Amendment prohibits unreasonable searches and seizures, the Convention and the law of trespass prohibit all searches and seizures, subject to specific justifications. Both in the Convention and the law of trespass, these justifications differ depending on the right infringed. Thus, an invasion of the right of free expression is limited: since its exercise "carries with it duties and responsibilities," it:

[M]ay be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in conYodence, or for maintaining the authority and impartiality of the judiciary.

The protection of freedom of expression is significantly less extensive than in the United States, and the relevant Article does not specifically mention "the press." Thus, it was held within the defence of "protection of morals" for Britain to convict the author of the "Little Red School-book," which offered youngsters advice about sex;81 Switzerland was entitled to confiscate sexually exglicit pictures,82 and Britain could ban offensive pictures of Jesus Christ. 3 Britain's contempt of court jurisdiction has been held "according to law," but an injunction against the Sunday Times was held disproportionate and not responsive to a "pressing social need. ,,84 Austria's law requiring the defendant in a

79. No signature is required, however, for the European Community Directive 2000/43/EC, which member states must incorporate into internal law by July 2003; it prohibits discrimination on racial grounds in employment and specific other areas. See Council Directive 2000/43IEC of 29 June 2000 Implementing the Principle Equal Treatment between Persons Irrespective of Racial or Ethnic Origin, 2000 O.J. (U80) 22.

80. Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 10,1950 WL 36092 (Trty).

81. See Handyside v. U.K., [1979-80]1 Eur. H.R. Rep. 737. 82. See Mueller v. Switzerland, [1988]13 Eur. H.R. Rep. 212. 83. See Wingrove v. U.K., [1997]24 Eur. H.R. Rep. 1. 84. Sunday Times v. U.K., [1979] 2 Eur. H.R. Rep. 245. In Goodwin v. U.K., [1996] 22

E.H.R.R. 123, a journalist obtained damages when he was threatened with contempt sanctions for failure to disclose his source, but in Ashworth Security Hospital v. MGN Ltd., [2001] E.M.L.R. 11 (CA. 2000), the Court of Appeal was deterred from ordering disclosure neither by Strasbourg jurisprudence nor by s. 10 of the Contempt of Court Act 1981.


defamation suit brought by a public figure to prove the truth of his opinions has been held unlawful,85 and there are some other more promising signs.86 The English Act has a special provision (section twelve) designed to restrain courts from issuing orders that might affect the Convention right.

VII. INVASIONS

Can a protected right be invaded by an omission? The answer in trespass law is that it cannot: a positive act is required. "Not doing is no trespass" as our predecessors used tersely to say.87 In claims under section 1983 too, there is at least reluctance to hold that mere abstention from intervention when it is known that a private party is harming the complainant can constitute a constitutional wrong. The Supreme Court so held in DeShaney v. Winnebago County Department of Social Services, where a department of social services ignored information that the plaintiff child was being abused at home by his father. 88 It is different where the injured party is already in the control of the state, as are prisoners.89 This distinction was adopted by the House of Lords when it first held that there was no liability in tortious negligence on DeShaney facts, and then held differently when the abuse took place after the social services defoartment had taken the child into care and placed him in a foster home. 0 But the first decision of the House of Lords has been

85. See Lingens v. Austria, [1986] 8 Eur. H.R. Rep. 407 (defamation of Chancellor Kreisky) (the press is given special protection in paragraph 41).

86. For example, "[d]ue to the nature of the press in a democratic society, there were no issues of proportionality in protecting the rights and reputations of others and preventing confidential information from being disclosed so there had been a breach of Art. 10 as press freedom was only to be restricted on public interest grounds." Fressoz v. France, [1998] 5 B.H.R.C. 654 Uournalist convicted for publishing a corporate chairman's tax returns). In Tolstoy Miloslavsky v. U.K., [1995] 20 Eur. H.R. Rep. 442, the Court found the level of damages awarded by a jury (£1.5 m.) an impermissible constraint on freedom of expression.

87. The French jurist Antoine Loysel said the opposite, with equal terseness, in LES INSTITUTIONS COUTUMIERES (M. Dupin et al eds., 1608). "Qui peut et n'empesche, peche" (A person does wrong who fails to prevent harm when he has power to do so). See H. ROLAND AND L. BOYER, ADAGES DU DROIT FRANCAIS 736-41 (4th ed. 1999).

88. "Nothing in the language of the Due Process Clause itself requires the state to protect the life, liberty and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security." DeShaney, 489 U.S. at 195. Thus, not every state tort was turned into a constitutional violation. See id. Contrast the Strasbourg Court: "although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the state top abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private or family life." Guerra v. Italy, [1998] 26 Eur. H.R. Rep. 357, 383 (para. 58) (failure to provide information about dangerous pollution).

89. See Farmer v. Brennan, 511 U.S. 825 (1994). See DAN DOBBS, THE LAW OF TORTS 888 ff. §327 (2000). In Davis v. Brady, 143 F.3d 1021 (6th Cir. 1998), police officers drove an arrested drunk beyond the city limits and abandoned him on a busy highway; the fact that Davis had been in custody and that the officers were indifferent to his safety meant that summary judgment for the officers was inappropriate.

90. Contrast X v. Bedfordshire County Council, [1995]2 A.c. 633 (H.L. 1994), with Barrett v. Enfield London Borough Council [1999] 3 W.L.R. 79 (H.L.). The same distinction explains the difference between Tony L. v. Childers, 71 F.3d 1182 (6th Cir. 1995) and Meador v. Cabinet for


admitted by the government to be unsustainable under the Convention, for the Strasbourg Court is quite generous in holding that respect for Convention rights may well require positive action on the part of the state. Thus, in the Osman case,91 the Court was ready to hold that a breach of Article Two (right to life) was constituted by the failure of the police to intervene when there was reason to believe that a person at large was likely to cause serious harm to the plaintiffs, also at large, and it was a breach of Article Eight when the authorities failed to enforce a term whereby a concessionaire of a beach resort was required to provide facilities for handicapped persons.92 There are many further instances, the Court having said that "[l]ike Article 8, Article 11 [freedom of assembly and association] sometimes requires positive measures to be taken, even in the sphere of relations between individuals." 93 It appears that in cases of breach by omission, the Court will be particularly generous with the defence of "margin of appreciation," on which more immediately.

VIII. DEFENCES

After laying down in Article 8(1) that "[e]veryone has the right to respect for his private and family life, his home and his correspondence," the Convention provides in Article Eight, section two that "[t]here shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." The right is generously construed, the defence narrowly interpreted, but the defendant state is allowed a "margin of appreciation" depending on the circumstances.94 This "margin of appreciation" is a grudging admission that societies may quite reasonably have different views on certain

Human Res., 902 F.2d 474 (6th Cir. 1990). 91. See supra note 63. 92. See Botha v. Italy, [1998]4 B.H.R.C. 81. 93. Plattform 'Aerzte fUr das Leben' v. Austria, [1991] 13 Eur. H.R. Rep. 204, 210. The

Luxembourg Court has also begun to require states to take positive action to prevent private parties affecting the Community freedoms of others. See Commission v. France (ECJ, Case C-265195, 9 Dec. 1997) (French farmers blocking transit of Spanish strawberries and Belgian tomatoes). Article 10 EC (ex-Article 5) provides that "[m]ember states shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty ...... The Court said that "Article 30 [free movement of goods] requires the Member States not merely themselves to abstain from adopting measures or engaging in conduct liable to constitute an obstacle to trade, but also, when read with Article 5 of the treaty, to take all necessary and appropriate measures to ensure that that fundamental freedom is respected on their territory." What measure are appropriate is subject to the State's "margin of discretion." [d.

94. Thus, in Powell v. U.K., [1990]12 Eur. H.R. Rep. 355, aircraft noise was held to invade the claimant's right to family life under Art. 8, but the regulation which permitted it was within the state's margin of appreciation.


matters.95 Thus, the Court has stopped short of castigating legislative inhibitions on abortion,96 a matter on which views notoriously differ. Likewise it does not require states to permit transsexuals to marry, though they have the right to have their new gender entered on their identity cards.97 Inquiry into a person's sexual orientation, however, is an unjustifiable interference with the right to respect under Article Eight, even within the armed forces. 98

Any interference must not be "disproportionate," that is, the invasion must not be more severe than is called for by the actual exigency.99 An example may help. A single policeman peaceably entered the claimant's home in her absence when her husband was in the house for the purpose of removing his own property. Such a trespass could be justified at common law on the ground tha t the constable was seeking to stop or prevent an apprehended breach of the peace, and the English Court of Appeal, finding the ~oliceman's apprehension quite reasonable, dismissed the complaint. i The Strasbourg Court, however, held his action was "disproportionate" and consequently found the United Kingdom in breach of Article Eight. lOi Thus, trespass law and Convention law alike found an invasion, but whereas it was justifiable under the former it was not under the latter. In the United States, it seems likely that the search would not be held unreasonable, thus no invasion, but if it were, the official would certainly have the defence of immunity, since he would not be conscious of doing anything improper.

Although the interference must be in accordance wi th the law, that

95. Thus, states have a wide margin of appreciation regarding decisions to take a child into care; but they must ensure proper procedural safeguards for the parents. See McMichael v. U.K., [1995]20 Eur. H.R. Rep. 205. But the margin of appreciation is much narrower than the test applied by British courts to administrative decisions, which must be "irrational" ("Wednesbury unreasonable") in order to be objectionable. Smith v. U.K., [1999]7 B.H.R.C. 65.

96. In Open Door and Dublin Well Woman v. Ireland, [1992] 15 Eur. H.R. Rep. 244, the Strasbourg Court declined to state its view "whether a right to abortion is guaranteed under the Convention or whether the foetus is encompassed by the right to life as contained in Article 2," id. at 264, but held that the legislative restriction on the dissemination by a student group of information about the availability of abortion services in England was unlawful under Art. 10. As a matter of Community law, by contrast, Ireland could prevent its citizens being informed about abortion services in England, since the information came from a student group without economic motivation. See Society for the Protection of Unborn Children Ireland v. Stephen Grogan, [1991] 3 C.M.L.R. 849.

97. See B v. France, [1992]16 Eur. H.R. Rep. 1, withdrawing, in part because attitudes have changed, in part because identity documents are more important in France than in Britain, from Cossey v. U.K., [1990]13 Eur. H.R. Rep. 622. After the Strasbourg decision, the Court of Cassation altered its previous view. See Assemblee Pleniere, Dec. 11, 1992, J.c.P. 1993, II, 21991.

98. See Lustig-Prean v. U.K., [1999] 7 B.H.R.C. 65. The Community law prohibition of discrimination on grounds of gender in employment (Article 119 EC, now Article 141) does not apply to sexual orientation. See Grant v. South West Trains, Ltd., [1998] All E.R. 193 (EC). But a Directive is in draft which would outlaw discrimination in employment in a much wider area.

99. The German concept of proportionality (Verhiiltnismiissigkeit) is rooted in folk-wisdom: you shouldn't use a sledge-hammer to crack a nut, or burn down the house to roast the pig.

100. See McLeod v. Comm'r of Police ofthe Metropolis, [1994]4 All E.R. 553 (C.A.). 101. See McLeod v. U.K., [1999] 27 Eur. H.R. Rep. 493, 5 B.H.R.C. 364. The Court of Human

Rights did not award any damages, but required the state to pay £15,000 in respect of the costs and expenses which this wretched complainant so unnecessarily incurred.


in itself is not enough: the local law must be sufficiently certain and ascertainable, a point on which the common law is likely to be more vulnerable (at any rate in the minds of civil lawyers) than systems of written law. Thus, English provision for "binding over to keep the peace or to be of good behaviour" has been held insufficiently clear to be "prescribed by law.,,102

Officials sued under Section 1983 are allowed a very generous defence. Once the invasion of the claimant's right has been established, the official will have a defence if he can show that the right was not very clearly established in law, or that what he did was not clearly an invasion of it; this virtually amounts to a defence of "not at fault," for the official will almost always have this qualified immunity unless he should have known that what he was doing was unconstitutional.103 There is no analogue in English law, but there are some difficult decisions.104 In one case the claimant was arrested (on many occasions) for breach of a byelaw; had the bye-law been valid, the arrest would have been justified, but the bye-law was (rather surprisingly) held void in subsequent judicial proceedings. The plaintiff's claim for damages for wrongful arrest was dismissed. l05 In a later case, a prison governor was sued for detaining a convict for longer than was permitted by the statute, as subsequently construed, though no longer than was permitted on the then current interpretation of the statute.106 The prison governor was held liable. The arrest case has been decided the same way under Section 1983,107 but it seems very doubtful under the Human Rights Act, which mandates the award of damages to "[ e ]veryone who has been the victim of arrest or detention in contravention of the provisions of this Article" (section 5(5».108

The fact that the defence allowed to officials personally when sued under Section 1983 is not available to the employing municipality is less significant in that the municipality is never vicariously liable under that

102. Hashman v. U.K., [2000]30 Eur. H.R. Rep. 241, 260 (quoting Chorherr v. Austria, [1994]17 Eur. H.R. Rep. 358) (breach of Art. 10(2»; see also Steel v. U.K., [1999]28 Eur. H.R. Rep. 603.

103. H[G]overnment officials performing discretionary functions generally are granted a qualified immunity and are 'shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Wilson v. Layne, 526 U.s. 603, 609 (1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982». This may extend to the use of deadly force. See Reynolds v. County of San Diego, 858 F. Supp. 1064 (9th Cir. 1994).

104. There has, however, been a worrying trend to import into trespass law considerations relevant to negligence liability, and to suggest that if the invader has behaved reasonably, he ought not to be held liable in damages. See T. Weir, The Staggering March of Negligence, in CANE ET AL., supra note 58, at 108-13; Chic Fashions (West Wales) Ltd. v. Jones, [1968]2 Q.B. 299 (CA. 1967).

105. See Percy v. Hall, [1997] Q.B. 924 (CA.). 106. See R. v. Governor of Brockhill Prison, ex p. Evans, [2000]4 All E.R. 15 (H.L.). 107. See Pierson v. Ray, 386 U.S. 547 (1967). 108. Unless the courts are ready to hold that the arrest is justified as having been effected Hon

reasonable suspicion of having committed an offence, (s. 5(1»" which, despite an unfortunate decision of the House of Lords, Wills v. Bowley, [1983] 1 A.C 57 (H.L. 1982), is not the same as a reasonable suspicion that the plaintiff has done someth ing which is not an offence at all.


section: it is liable only if institutionally at fault through the decision or improper tolerance of its high-level officers.109 At common law, by contrast, the governmental employer, unless protected by a special immunity, is always vicariously liable if its trespassing subordinate has no defence, and not if he has.

IX. DAMAGES

Damages are an invariable consequence of an actionable trespass, and this is true even if no harm is proved, only the invasion of the protected right. This is not so in the case of conduct incompatible with a Convention right, for the Human Rights Act provides in section eight that "no award of damages is to be made unless ... the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made" and requires the courts to "take into account the principles applied by the European Court of Human Rights". 110 The English Law Commission was asked to report on this question and did so .111While noting that the Strasbourg Court sometimes awards damages for intangible harms not yet fully recognised by the common law, it concludes that "in most areas the approach of the Strasbourg Court is not significantly different to [sic] the rules currently applied" by English courts. ll2 This is characteristically sanguine, and it can be expected that claimants successful on the merits of their claim will often be sadly disappointed by the monetary results. The one situation where the Convention requires states to award damages is where the complainant has been unlawfully detained or imprisoned (Article 5(5)).

One major difference as to damages is that the Strasbourg Court never awards punitive damages. This difference is, however, becoming less major, for this is another area in which English law is approximating itself to the law on the Continent, where punitive damages are anathema. It used to be the common law that punitive damages might be awarded by the jury whenever the defendant was guilty of an intentional and outrageous tort, as where a colonel had a soldier flogged

109. See Monell v. New York City Dep't of Social Services, 436 U.S. 658 (1978); criticised by Breyer J. in Bryan County Comm'rs v. Brown, 520 U.S. 397 (1997). Britons will recall the phrase "institutional racism" which figured prominently in the report of Sir William Macpherson of Cluny on the police reaction to the murder of a young black man in London. See The Stephen Lawrence Inquiry (Cm 4262·1,1999) Ch.6.

110. "A further difficulty in 'taking into account' the [Court's] 'principles' of damage awards is that these are almost impossible to discern." 1. Leigh and L. Lustgarten, Making Rights Real: The Courts, Remedies, and the Human Rights Act, [1999] CAMBRIDGE L.J. 509, 529. Thus, in Smith and Grady v. U.K., [1999] 29 Eur. H.R. Rep. 493, where the applicants had been dismissed from the armed services by reason of sexual orientation, the Court said "the question to be decided is the level of just satisfaction, in respect of both past and future pecuniary loss, ... the matter to be determined by the Court at its discretion, having regard to what is equitable" (para. 19).

111. See DAMAGES UNDER THE HUMAN RIGHTS ACT, 1998, Cm. 4853, iii. 112. [d.


just to annoy a colleague.1l3 In 1964, however, in an industrial dispute between workmen, the House of Lords unexpectedly held that punitive damages should thenceforth be awarded only when the defendant had either abused a public position or had sought to make a profit from his wrongdoing. 114 Despite unprecedented opposition from the Court of Appeal on the ground that it was un-English to distinguish between officials and private parties,115 the House of Lords reasserted its view a few years later.116 Since then, the Court of Appeal has remarkably held that even within these parameters no punitive damages may be awarded unless the particular tort in question is one in which such damages had been awarded before 1964.117 Since, unlike claims in trespass, such damages were not awarded for invasion of Convention rights, there being no such tort until the year 2000, English courts could not award such damages under the Act even if they had not been instructed to follow Strasbourg principles, if any.

It is worth noting that other jurisdictions in the old Commonwealth have flatly refused to follow the English example regarding punitive damages,118 yet another example of Britain dissociating itself from other English-speaking peoples in order to associate more closely with geographical neighbours. The matter is still controversial, as the English Law Commission discovered when it blandly proposed that punitive damages be further restricted, only to find that very many of those they consulted were of a different opinion. They consequently produced a revised Report to the effect that such damages be more widely available, but no longer be awarded by the jury, which of course never exists in civil cases on the Continent. 119 Note also, as has been mentioned, that the Court of Appeal has now capped the punitive damages which may be awarded against the police for unlawful conduct, whether false arrest or malicious prosecution, the former being a strict liability trespass claim, the latter being much more difficult to establish.120 But if punitive damages are available in malicious prosecution cases, they are not to be awarded in claims for the growing tort of misfeasance in public office, which also has important constitutionalovertones.121

113. See Benson v. Frederick, 97 Eng. Rep. 1130 (1766). 114. See Rookes v. Barnard, [1964] A.C 1129 (H.L. 1963). 115. See Broome v. Cassell & Co. Ltd., [1971]2 Q.B. 354 (CA. 1971). 116. See Cassell & Co. Ltd. v. Broome, [1972] A.C 1027 (H.L. 1971). 117. See A.B. v. South West Water Servs. Ltd., [1993] Q.B. 507 (CA. 1992). 118. Australia's refusal to adhere was upheld by the Privy Council in Australian Consolidated

Press Ltd. Applicants v. Uren, [1969]1 A.C 590; New Zealand likewise, Taylor v. Beere, [1982]1 N.Z.L.R. 81, and Canada, Vorvis v. Ins. Corp., [1989] 58 D.L.R.4'h 193, 208. Ireland allows punitive damages where there is a direct deprivation of a constitutional right. See Conway v. Irish Nat'l Teachers' Ass'n, [1991] I.L.R.M. 497.

119. See Aggravated, EXEMPLARY AND RESTITUTIONARYDAMAGES, 1997, Law Com. No. 247. 120. See Thompson v. Metro. Police Comm'r, [1998] Q.B. 498 (CA. 1996). 121. See Racz v. Home Office, [1994]2 A.C 45 (H.L. 1993). In Factortame, (No.5) [2000]1 A.C


No punitive damages are available against either the United States, sued under the Federal Tort Claims Act, nor against municipalities sued under Section 1983 for institutional fault, but they are readily available against individual officials, against whom actual malice need not be proved, recklessness being sufficient.122 The municipality is unlikely to undertake to indemnify the official in respect of such damages.123

What is the position under Section 1983 if an invasion is established, but no actual damage can be proved? The Supreme Court held in Carey v. Phipus124 that damages must not be awarded (as they are in trespass cases) simply because the right has been invaded, but this is not really much of an obstacle since distress can easily be proved and its proof is sufficient.125

X. EXHAUSTION OF REMEDIES

Strasbourg requires that local remedies, unless manifestly futile, be exhausted before an application is made. Thus, when the brother of Princess Diana sought a remedy for press invasion of his privacy in connection with his divorce in South Africa, the Commission stated that he might well have a remedy in England on the basis of breach of confidence,126 a slightly surprising statement, subsequently vindicated by a decision of the Court of Appeal, with reference to the Convention, that there might be liability for disseminating information acquired otherwise than confidentially. 127

The Human Rights Act provides that the rights conferred are in addition to any other remedies, so no exhaustion is required, save where the authority alleged to be in breach is a court, when the remedy must be by way of appeal. (section 9(1».

In a claim under Section 1983, it is not required that state remedies

524 (H.L. 1999), where damages were claimed under the Francovich principle of failure to enact Community law, the claim for punitive damages was not pursued in the House of Lords.

122. See Smith v. Wade, 461 U.S. 30 (1983). The damages may be high: $500,000 reduced to $200,000. See Mathie v. Fries, 121 F.3d 808 (2d Cir. 1997).

123. Kansas, for example, precludes the indemnification of an official in respect of punitive damages. See KAN. STAT. ANN. § 75-6109 (1997). But otherwise, indemnification from public funds is widely available to officials held liable under Section 1983. See the list in the opinion of Justice Breyer in Bryan County Comm'rs v. Brown, 520 U.S. 397 (1997). In the light of this, the formal immunity of states under the Eleventh Amendment is less effective in practice than one might think. See J. Jeffries Jr., In Praise a/the Eleventh Amendment and Section 1983, 84 VA. L. REV. 47 (1998). "[T]here is a dearth of scholarly attention to the question of who actually pays §1983 claims." Id. at 50 n.14. In England, the municipality can validly insure against vicarious liability for punitive damages. See Lancashire CC v. Municipal Mutual, [1996]3 All E.R. 545 (CA.).

124. See Carey v. Piphus, 435 U.S. 247 (1978); Memphis Cmty. Sch. v. Stachura, 477 U.S. 299 (1986).

125. The distress need not be acute. See Chatman v. Slagle, 107 F.3d 380 (6th Cir. 1997). 126. See Pauger v. Austria, [1998] 25 Eur. H.R. Rep. 105 (CD.), a decision of the Commission

which until 1998 filtered claims before the Court of Human Rights. See R. Singh, Privacy and Media: the Human Rights Bill, in PROTECTING PRIVACY 169, 172 (Basil Markensinis ed., 1999).

127. See Douglas v. Hello!, [2001] E.M.L.R. 9.


have been exhausted,128 but the existence of state remedies is far from irrelevant.129

A. The Claimant

Under the Convention (Article Thirty-Four) and the specific terms of the Human Rights Act (section seven), the claimant must be the "victim" of the unlawful act. This may make it hard for representative bodies to mount actions, probably harder than in cases of judicial review of administrative action.130 There is little problem with trespass law when the trespass is to the person: it will be clear who was assaulted, battered or imprisoned. Problems may arise with trespass to goods and land, since different parties may have concurrent interests, and the courts of England seem incapable of distinguishing actual possession, which entitles one to sue in trespass, from the right to possession, which should not. l3l Under the Convention, the First Protocol protects "the peaceful enjoyment of possessions," but the word "possessions" can hardly be given a technical meaning, since it has been applied to a chose in action, naturally insusceptible of actual possession.

The main problem arises when the primary victim dies, whether or not as a result of the unlawful act. At common law, no one could claim, since the victim's own claim did not survive his death, and no survivor could claim that his death gave him a cause of action. Both common law rules have been changed by legislation, but the terms of the statutes differ widely. The Supreme Court, indeed, had created a common law wrongful death claim in admiralty, but this has hardly been a great success, since courts really need to be told who can sue and for what.132

Given the variety of state rules, claims under Section 1983 have proved problematic if death is involved, but it can perhaps be said that the state rules will be applied unless their application would be inconsistent with the purpose of Section 1983.133 Where the primary victim dies prior to

128. See Patsy v. Florida Bd. of Regents, 457 U.S. 496 (1982); but Heck v. Humphrey, 512 U.S. 477 (1994), prevents the use of Section 1983 where a state conviction remains in force.

129. A violation may remain uncompensated under Section 1983 if the state offers adequate remedies. See Parratt v. Taylor, 451 U.S. 527 (1981).

130. See J. Miles, Standing under the Human Rights Act 1998: Theories of Rights Enforcement and the Nature of Public Law Adjudication, [2000] CAMBRIDGE L.J. 133. There are proposals afoot for the introduction in England of something approaching "class actions;" for the Lord Chancellor's Consultation Paper (1 Feb. 2001) see http://www.open.gov.uk/lcd/consult/general/repclaims.htm. The "victim" test is still less stringent than the rules of locus standi for private parties trying to sue European Community bodies for unlawful acts or omissions. See ALBERTINA ALBORS-LLORENS, PRIVATE PARTIES IN EUROPEAN COMMUNITY LAW (1996).

131. Most recently the Court of Appeal has astonishingly held that a mere contractual licensee had title to evict squatters. See Manchester Airport v. Dutton, [1999]2 All E.R. 675 (C.A.).

132. See Moragne v. States Marine Lines, 398 U.S. 375 (1970); Miles v. Apex Marine Corp., 498 U.S. 19 (1990). The decisions have "engendered heavy seas in what previously were calm waters." Bodden v. Am. Offshore Inc., 681 F.2d 319, 321 (5th Cir. 1982).

133. See Robertson v. Wegman, 436 U.S. 584 (1978). The California survivorship statute which provided that no claim for damages for pain and suffering survived the death of the victim was inconsistent with the aim of §1983. See Williams v. City of Oakland, 915 F.Supp. 1074 (N.D. Cal.


filing suit, state survival provisions may restrict the right of relatives to sue, but where it is the constitutional violation itself which proves fatal, it would be inconsistent with the ethos of Section 1983 to hold that no claim can be brought by survivors, and state statutes may therefore be

134 bypassed. The Strasbourg Court, which allows claims only to the "victim," has

held that, in the case where the primary victim has died, the family may claim, but the executor cannot.135 However, the right to respect for family life contained in Article Eight entails that relatives may themselves be primary victims where an invasion causes the loss of a close member of the family, whereas in the United States it is generally held that family members have no independent "liberty" interest in their relative's constitutional rights.

B. The Defendant

Under the Convention the only possible defendant is the state signatory of the Convention. Under the Human Rights Act, where the state provides the court, only public authorities, including courts and tribunals, are directly subject to the duty to respect the Convention rights. "Public authorities" are rather broadly defined as "any person certain of whose functions are functions of a public nature," (section 6(3)(b» but they are not bound if the particular act impugned is "private" (section 6(5». It seems, therefore, that individual officials are suable under the Act, their employer being vicariously liable, but not private individuals. Since under Section 1983 the defendant must be "acting under color of state law," officials are suable, but private persons are not, unless they are in cahoots with officials.136 Where the conduct is inconsistent with federal law, the Bivens doctrine invented by the Supreme Court may be invoked.137 It has met with more favour in New Zealand than in Australia.138 As to the liability of public bodies for the constitutional excesses of their subordinates, the rule that the employer of an official liable under Section 1983 is not vicariously liable (though directly liable for an institutional fault of policy or practice) is apt to perplex observers on the Eastern side of the Atlantic, and some on the other side as well.139

1996). 134. See, e.g., Rhyme v. Henderson County, 973 F.2d 386 (5th Cir. 1992). 135. See Scherer v. Switzerland, [1994]18 Eur. H.R. Rep. 276. 136. Dennis v. Sparks, 449 U.S. 24, 29 (1980). 137. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). 138. (New Zealand) Simpson v. Attorney-General (Baigent's case), [1994]3 N.Z.L.R. 667, 702,

705; (Australia) Kruger v. Commonwealth, (1997) 149 AL.R. 126,222. 139. This rule has been much criticised. See Peter Schuck, Municipal Liability Under Section

1983: Some Lessons from Tort Law and Organization Theory, 77 GEO. L.J. 1753 (1989).


C. Mode o/trial

While tort claims against the United States are heard without a jury, a jury is appropriate in claims under Section 1983, seeing that it is classified as a tort action.140 In England, trial by jury is possible only in claims for false imprisonment and malicious prosecution,141 the House of Lords having significantly held that there should be no jury in claims for misfeasance in public office.142

D. Time-Bar

Unlike Section 1983, both the Convention and the Human Rights Act provide for a time-bar. Under the former it is six months from the decision impugned (Article Thirty-Five)), under the latter one year, equitably extensible. (section 7(5)). The United States has had difficulties arising from the absence of a specific period of limitation, and seems to have opted for the period appropriate for the most analogous tort claim under state law, unless that would be substantially inconsistent with the ethos of the action.143

E. Facilitating Suit

United States legislation facilitates the bringing of claims for constitutional torts by granting a prevailing claimant his reasonable attorney's fees. 144 In England, too, it is somewhat easier to bring a claim for breach of human rights than a suit for a traditional tort, for while legal aid has been very severely restricted in most claims for damages, 145 the Lord Chancellor has provided that legal aid may be available in claims for invasion of human rights.146 This is not because of any Convention requirements, though the Strasbourg Court did once hold that in order to avoid liability under Article Eight, a state must offer legal aid in certain circumstances.147

140. See City of Monterey v. Del Monte Dunes 526 U.S. 687 (1999). 141. See Supreme Court Act, 1981, s. 69 (Eng.); see also in claims for fraud and defamation

(where summary judgment is now possible) Defamation Act,1996, s. 8(5) (Eng.). 142. See Racz v. Home Office, [1994]2 A.C. 45 (H.L. 1993). 143. See Bd. of Regents v. Tomanio, 446 U.S. 478 (1980). 144. See Civil Rights Attorney's Fees Awards Act 1976, 42 U.S.c.A. §1988(2) (1994 & Supp.

2000). 145. Restricted in favour of conditional fee arrangements, where the successful lawyer can

double his fee, payable by the losing party, but not take a percentage of the award. See Courts and Legal Services Act, 1990, s. 58 and 58A (Eng.), as substituted by Access to Justice Act, 1999, s. 27 (Eng.).

146. By direction under Access to Justice Act, 1999, s. 6(8) (Eng.), the Lord Chancellor authorises the Legal Services Commission to fund "proceedings againt pu blic authorities ... alleging serious wrongdoing, abuse of position or power, or significant breach of human rights." The Funding Code (June 2000) may be found at http;lIwww.legalservices.gov.uk.

147. Ireland was held in breach of Art. 6 for failing to provide legal aid to an impecunious person seeking divorce. See Airey v. Ireland, [1979]2 Eur. H.R. Rep. 305. But the Commission has said that "article 6(1) does not guarantee, as such, a right to free Legal Aid in civil cases. However, the refusal of such aid may in certain circumstances raise the question of a right to a fair hearing." J .H. Munroe


XI. Final Remarks

While it would be absurd to try to draw any firm conclusions on a range of matters as broad as those alluded to herein, some final observations may perhaps be made. If it were just a matter of comparing rules applied in similar situations, it might be possible to suggest sensible preferences, but as every comparatist knows, the situations in which even similar rules are applied in different systems may themselves be barely comparable: the litigational context in which decisions are made is critical to any proper appraisal, as indeed is the social setting. Let us therefore look briefly at the litigational context of civil rights claims for damages in Europe and the United States.

The European Court of Human Rights in Strasbourg is highly specialised: it does nothing but rule on claims by individuals that their Convention rights have been infringed by a state. Such specialisation is not without its dangers. The saying boni iudicis est ampliare jurisdictionem , (a proposition already doubtful in view of the risk of societies being over-run by judges) is certainly questionable when the jurisdiction is very special and not general. It is true that specialist courts are much more common on the Continent than in common law countries: the Sixth Civil Senate of the Bundesgerichtshof, for example, hears nothing but tort cases, and in France all claims against the government or its employees (apart from motor accidents) go to the litigation branch of the Conseil d'Etat and not to the regular courts. It is arguable that specialists tend to get things out of balance-people of one book tend to the fanatical. Certainly no one could accuse the Strasbourg Court, or indeed the Court in Luxembourg, of any hesitancy in carrying out its remit. A general court, such as the House of Lords or the Supreme Court of the United States, might be thought to be more likely to take a wider range of considerations into account.

The Strasbourg Court itself is composed of forty judges, one nominated by each of the members of the Council of Europe. Given the temptation of weak governments to reward a supporter or remove an opponent, not all nominees are likely to be very competent jurists. Stronger governments are apt to nominate lawyers who have made their name in the garticular field, and thereby accentuate the inherent specialisation.! A distinctive feature of the Strasbourg Court is that its judges may issue separate and dissenting opinions, a practice very rare on the Continent, not known in France or Luxembourg, and present in Germany only in the case of the Constitutional Court (Bundesverfassungsgericht). Dissent may go too far, however, and the

v. U.K., [1987]52 D.R. 158. 148. As regards the Luxembourg Court, governments, only fifteen of them at present, are likely

to be more careful with their nominations, since their economic interests are more clearly at stake.


astonishing frequency of deep division in the Supreme Court of the United States where there is quite often no majority opinion at all must make life difficult not only for lower courts but also for litigants. As against this, the style of judgments in the Supreme Court is entirely familiar to those effected, whereas the opinions of the Strasbourg Court (and to a greater extent, the Luxembourg Court) are drafted in an impersonal manner which English-speaking courts and litigants may have difficulty in handling. Translation is partly to blame for the alienating character of the judgments of these courts, but the different styles of judicial draftmanship also rest on cultural differences.

Both the Supreme Court and the Strasbourg Court have to assess the validity of legislation at the instance of those apt to be affected by it. In the United States, this rarely arises in claims under Section 1983, for even if the defendant's conduct was lawful by state law this is no defence, and there can be no liability in damages for failure to legislate properly. In Strasbourg, the conduct impugned must be "in accordance with law" in order to be justifiable, but it is not enough that the conduct be "in accordance with law" in the view of the state being sued, for its law may be invalidated on the grounds of lack of clarity or ascertainability. In this, one fears, civilian considerations, with their preference for written law, feature rather too strongly. 149

It is always a delicate matter when a court has to pass on the validity of legislation, given the range of considerations that a representative legislator may properly take into account. It seems that as between the Supreme Court of the United States and the Strasbourg Court, the former is rather more tender to local divergence. Strasbourg is not at all concerned with federalism, and is spared the need to reconcile Congressional and state law. While the Strasbourg Court does allow member states a "margin of appreciation", whose width depends on the right in question, it could hardly do otherwise in view of its extremely generous construction of the rights themselves. The American lawyer would probably be surprised by the decision of the Strasbourg Court in A v. U.K., where a child of nine complained that his step-father, who had physically disciplined him for misconduct, had been acquitted by a jury, and the Court held the jury was properly instructed by the judge that reasonable chastisement was a defence to a criminal charge of assault. The Court held that the United Kingdom had not given the child sufficient protection from "degrading treatment" and was therefore in breach of Article Three.15o

The question is vexed whether the individual aggrieved at the

149. Apparent legality is only one of the requirements of a successful justification, for in addition the conduct must be proportionate and not discriminatory.

150. See A v. U.K., [1998]5 B.H.R.C. 137, [1999]27 Eur. H.R. Rep. 611.


infringement of his rights should look to the individual official who infringed them or the public body itself. It is, after all, the public nature of the function being abused which makes the difference between a constitutional wrong and a private law tort. Suit under the Convention lies only against member states, and under the Human Rights Act 1988 only against public authorities; there appears to be no individual liability for constitutional improprieties not sanctioned by the common law of tort, though the expansion in England of the tort of misfeasance in public office may well go some way to filling this gap. The United States seems to have got it right, both in accepting governmental liability for the assaults and other trespasses committed by its law enforcement officers, and in retaining the personal liability of those guilty of constitutional violations in the course of their governmental employment. But while it is, in principle, desirable that the individual official take responsibility for his conduct, the danger is that the fear of making him personally liable may cause the system to grant him an overextensive immunity. It is arguable that the American rule that the official must have realised that what he was doing was impermissible means that many invasions of rights remain unsanctioned unless some high-level fault can be brought home to the public employer, which does not have this defence. It is important, too, that the successful claimant actually receive what the court believes is appropriate by way of damages. In this respect, it makes sense for liability, vicarious as well as institutional, to attach to the public employer, at any rate for compensatory damages, including damages for distress (in the United States) and aggravated damages in England.151 On the other hand, the deterrent effect on the individual officer may be reduced if the public employer is answerable for punitive damages, as happens in England, but not in the United States nor, of course, in Strasbourg.

What if the complainant has suffered no actual harm? Should damages be awarded for the mere invasion of the right? The United States Supreme Court has held not, but English trespass law will provide damages (now capped), while the Strasbourg Court is quite ready to deny damages in cases where it finds that recognition of the bien-fonde of the grievance is sufficient satisfaction to the party aggrieved. However, the fact that the Strasbourg Court readily awards attorney's fees and costs to the successful applicant who fails to receive any substantial damages does lead to cases being brought which are really trivial. The outstanding case, already mentioned, is McLeod,152 where a

151. The observation in R. v. Secretary of State, ex parte Factortarne, (No.6) [2001]145 S.J.L.B. 19, that aggravated damages could "only be awarded in respect of torts committed by private persons or by government officials acting in circumstances where the claimant could recover damages if the act was done by a private person" (Judge Toulmin, QC) seems to be quite unjustified.

152. [1999]27 Eur. H.R. Rep. 493, 5 B.H.R.C. 364.


woman caught up in a difficult divorce sued a policeman who peacefully entered her house, in her absence, to ensure that no trouble arose from her husband's collecting his belongings. She had manifestly suffered no harm, and the decision in her favour (because the policeman's entry, held reasonable in the Court of Appeal, was found "disproportionate" in Strasbourg) reflects no credit on her, her attorneys or the Court of Human Rights; the decision can be of no assistance to her or to anyone else. Indeed, it may be opined that the freedom to refuse damages induces the Court to find an unjustifiable breach in very marginal cases. The rule that attorney's fees may be awarded in claims under Section 1983 is sensibly contained by the rule that the claimant must have substantially prevailed in the litigation, which approximates to the English rule regarding costs (including attorney's fees) in all cases; England prioritises human rights claims by providing legal aid, not generally available, even if success is less than probable.

One very important question is the extent to which the courts will impose on public authorities a positive duty of protection against the acts of third parties. Here the Strasbourg Court has been interventionist whereas the Supreme Court of the United States has been reluctant to force states and municipalities to exercise their powers. One justification for such reluctance is that the exercise of powers may come expensive.J53

One final point concerns the relationship of the damages sanction to the other sanction for invasions of human rights, namely annulment of the infringing measure, be it administrative or legislative. It is not obvious that a holding that one has a constitutional right to be immune from adverse administrative or legislative measures necessarily entails that one should be entitled to compensation for their effects, but there an inevitable tendency to hold that if conduct involves an invasion of a right and damages are available for invasions of rights, then damages must be available in all such cases. The United States Supreme Court has been alert to this: the exclusionary rule does not quite match with the rule of Section 1983,154 and of course neither the states nor the central government can be made liable for the way it legislates, unlike the situation in both Strasbourg and Luxembourg. English law has been much more willing to annul administrative decisions than to compensate their victims, that is, to apply the sanction of nullity rather than that of damages, but this may now no longer be the case after the coming into force of the Human Rights Act, despite its provision that damages are payable only according to the principles adopted by the Strasbourg Court. It may be suggested that the tendency to turn all rights into

153. The various justifications for not imposing liability for failure to act were well considered in Stovin v. Wise, [1996] A.C. 923 (H.L). They do not all apply to public bodies if, as is often the case, they alone have power to act in the given circumstances.

154. See Neighbour v. Covert, 68 F.3d 1508 (2d Cir. 1995).


constitutional rights runs in parallel with the widespread feeling that victims of moral wrongs should be able to claim that their legal rights have been infringed: the recent development of the law of tort is eloquent testimony to the strength of this view. Lord Atkin was surely right to say, "acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief.,,155 In the field of human rights in Europe we seem to be moving some way away from a practical world, and it would be satisfactory if we paid more attention to the longer and richer experience of the United States.

155. [1932] A.c. 562, 580.

Human Rights and Damages - Washburn University School of Law

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