ECtHR overruled HOL FIGHTING TERMS?

OVERRULING THE HOUSE OF LORDS 'The first two cases that we will examine are examples of the House of Lords being overruled by the ECtHR.

Overruled on broad and arbitrary power decision n R. (Marper) v. C !e" Co#$ta%le o" Sout &or'$ !re the House of Lords determined that there was #o %rea( o" )rt!(le * r!+ t$ when the ,ol!(e reta!#ed DN) and fingerprint evidence a"ter a# a(-u!ttal or d!$(o#t!#ua#(e o" a pro$e(ut!o#. R !HT T" RE#$ECT %"R $R &'TE '() %'* L+ L %E However, in S. v. U#!ted .!#+do/, the ECtHR u#a#!/ou$l0 eld t at t ere ad %ee# a %rea( o" )rt!(le *. "ne of the essential grounds of the argument was that U. la1 1a$ u#(lear o# a #u/%er o" !/porta#t po!#t$ relat!#+ to t e $tora+e and use of such personal information. The ECtHR argued that !t 1a$ 2e$$e#t!al3 that -telephone tapping, secret surveillance and covert intelligence. gathering were de"!#ed %0 2(lear4 deta!led rule$3 t at governed -the scope and application of measures/ and al$o prov!ded 2/!#!/u/ $a"e+uard$3 t at prov!ded 2$u""!(!e#t +uara#tee$ a+a!#$t t e r!$' o" a%u$e a#d ar%!trar!#e$$3.

 n R. (G!lla#) v. Co//!$$!o#er o" ,ol!(e o" t e Metropol!$ House of Lords upheld the le+al!t0 o" $ear( e$ u#der t e ,reve#t!o# o" Terror!$/ )(t 5666 on two individuals who had been stopped near an arms fair in East London. The powers that enabled the $olice to underta0e such searches had been continually renewed since the 'ct entered into force. The appl!(a#t$ ar+ued t at t !$ a/ou#ted to 2a (o#t!#uou$ %a# t rou+ out t e Lo#do# area3. The applicants also asserted that their rights under 'rticles 1 and 2 had been breached by the searches to which they were sub3ected. 1. right to liberty and security

 n G!lla# a#d 7u!#to# v. U#!ted .!#+do/ the ECtHR "ou#d t at t ere ad %ee# a %rea( o" )rt!(le * and was part!(ularl0 (r!t!(al o" t e %road a#d ar%!trar0 #ature of the powers under the 'ct. !iven the evidence of the d!$proport!o#ate u$e o" $u( po1er$ o# %la(' a#d )$!a# -suspects/, the court found that -the r!$'$ o" t e d!$(r!/!#ator0 u$e o" t e po1er$ against such persons is a very real consideration/.

Overruled on torture evidence decision The notorious case of )%u 7atada v. U. saw the ECtHR overrule t e Hou$e o" Lord$ o# a po!#t relat!#+ to )rt!(le 8 a#d torture. 'bu 4atada, an slamic fundamentalist, had been detained under the 5667 'nti.Terrorism, Crime and #ecurity 8ill, and then sub3ect to control orders under $T' 5661. The #ecretary of #tate sought to deport 4atada on the ground of national security to 9ordan. 4atada appealed to the #pecial mmigration 'ppeals Commission :# 'C;. His argument was based on 'rticle <. He had been tried in his absence, and found guilty by the 9ordanian authorities for terrorism related offences. 4atada/s case was that, if he was returned to 9ordan, he would be retried, put at ris0 of being tortured, and evidence obtained by the torture of a third party would be used against him.

 # 'C dismissed his appeal on the grounds that the U. +over#/e#t ad $ou+ t d!plo/at!( a$$ura#(e$ t at torture ev!de#(e 1ould #ot %e u$ed and he would not be mistreated. =e will deal in depth with the argument around 'rticle > in another chapter. Fair to trial #uffice to say for our purposes in this chapter, that whilst the Court of 'ppeal held that the use of torture evidence would amount to a flagrant abuse of 4atada/s 'rticle > rights, but the Hou$e o" Lord$ eld o# t e (o#trar04 t at t e d!plo/at!( a$$ura#(e$ 1ere $u""!(!e#t They further said that there was #o 2rule t at !# t e (o#te9t o" a tr!al in a "ore!+# $tate4 the risk of the use of evidence obtained by torture #e(e$$ar!l0 a/ou#ted to a "la+ra#t de#!al o" :u$t!(e3. The ECtHR agreed with the House of Lords on the 'rticle < point? d!plo/at!( a$$ura#(e$4 !# t e (o#te9t o" t e U.3$ relat!o#$ !p 1!t ;orda#4 were $u""!(!e#t to e#$ure t at 7atada 1ould #ot %e !ll<treated.

 However, t e0 d!$a+reed 1!t t e Hou$e o" Lord$ !# relat!o# to t e u$e o" torture ev!de#(e. Citing the 8elmarsh case, and Lord 8ingham/s strong condemnation of torture evidence, Stra$%our+ a$$erted t at torture ev!de#(e 1a$ !# ere#tl0 u#"a!r. The court also relied on evidence that torture 1a$ 1!de$pread !# ;orda#, and that 7atada3$ (o<a((u$ed ad !#deed %ee# tortured. The ;orda#!a# (ourt ad ta'e# #o a(t!o# o# t e alle+at!o# that torture had been used. This is a controversial ruling, but we will defer any analysis until we have reviewed the other groups of cases that we described above. #o, we now move to the second category of cases? where the SC a$ e9pre$$ed dou%t a%out Stra$%our+3$ !#terpretat!o# of the law, %ut #evert ele$$ "ollo1ed t e ECtHR3$ rul!#+.