Date: Mon, 16 Oct 2006 13:03:29 +0100

From: Robert Stevens

Subject: Horizontal effect argument

In Wainwright BOTH the prison officers AND, crucially, the state (through both the prison and the judicial systems) are infringing Article 8

I do not agree with that reading of the case. I can only offer as proof the decision itself.

It is available in full here, or in summary in The Times here.

The important paragraphs are [38]-[49] on article 8 and [50]-[56] on article 13. I cannot myself see how it is even arguable from what is said by the European Court of Human Rights that the decision in Wainwright itself constituted a violation of art 8, although the state of domestic law was at that time a violation of art 13. All of the discussion of article 8 is, rightly, concerned with the prison officer's conduct. If that is right the effect of the HRA is to reduce, not increase, the importance of the ECHR in relation to domestic law.

Robert Stevens
Barrister
University of Oxford

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