2. HUMAN RIGHTS: ARTICLES 3 & 2,5,6 Flashcards
HUMAN RIGHTS
There are three types of ECHR rights that can be violated:
- ABSOLUTE RIGHTS
- – Article 3
- LIMITED RIGHTS
- – Articles 2,5,6.
- QUALIFIED RIGHTS
- – Articles 8 and 10.
HR: ABSOLUTE RIGHTS
Interference with an ABSOLUTE RIGHT will constitute a violation of the ECHR. NO derogation is permitted under Art 15. Art 3 is an absolute convention right.
HR: Absolute Rights: ARTICLE 3
Articles 3: THE PROHIBITION OF TORTURE
- ‘No one shall be subjected to torture or to inhuman treatment or punishment’.
- NO DEROGATION from Art 3 is permitted at all.
- It includes a limited obligation on the state to prevent individuals being subjected to torture and/or inhuman and degrading treatment or punishment (R (Ullah) v Special Adjudicator)
INHUMAN/DEGRADING TREATMENT can be distinguished from TORTURE (Ireland v UK)
HR: Absolute Rights: Art 3 - INHUMAN/DEGRADING TREATMENT
Def of INHUMAN: ill-treatment that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering (Pretty v UK)
Def of DEGRADING: treatment which humiliated or debates an individual showing lack of respect for, or diminishing, their human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance (Pretty v UK)
Whether treatment is IN/DEG will depend on these factors (R(B) v RMO Broadmoor Hospital)
- the length of the treatment/punishment
- its effects
- its circumstances and nature
- its impact on the individual
Cramped prison conditions and failure to provide toilet facilities (Napier v Scottish Ministers) or properly function facilities and ventilation (Peers v Greece) MAY constitute IN/DEG treatment.
Treatment of a prisoner must be COMPLETELY UNACCEPTABLE in order to constitute IN/DEG treatment (R(Spinks) v SoS HD)
Sentences may need to be reviewed to take into account changes in a prisoner’s circumstances and “whole life” sentences may be unacceptable (Vinter, Bamber and Moore v UK cf. R v McLoughlin and Newell)
HR: Absolute Rights: Art 3 - TORTURE
Def: DELIBERATE treatment/punishment which causes VERY SERIOUS AND CRUEL SUFFERING
- Usually involves the infliction of PHYSICAL PAIN (Askoy v Turkey)
- Rape is ALWAYS sufficiently serious (Aydin v Turkey)
- State has a POSITIVE obligation to prevent individuals from being subjected to TORTURE, IN/DEG treatment (R(Q). v SoS HD) where a HIGH PROBABILITY that it will be carried out (SH v UK). This duty is NOT absolute however (R(Bagdanavicius) v SoS HD).
- states may NOT permit extradition where the individual could face torture/IN/DEG treatment abroad (Soering v UK), REGARDLESS of whether the risk is posed by state or non-state factors (Chahal v UK)
HR: LIMITED RIGHTS
Interference with a LIMITED right will be a violation UNLESS it is:
- permitted in the limited circumstances outlined in the article, or
- the authority has the defence of derogation under Art 15 (Art 5 and 6)
There are three relevant limited ECHR rights:
- Art 2: RIGHT TO LIFE
- Art 5: RIGHT TO LIBERTY AND SECURITY
- Art 6: RIGHT TO A FAIR TRIAL
HR: Limited Rights - ARTICLE 2
THE RIGHT TO LIFE
- A person’s right to life must not be infringed unless the infringement occurs as a result of use of force which is ‘NO MORE THAN ABSOLUTELY NECESSARY’ and used in one of the following circumstances (Art 2(2) ECHR):
- – (a) Self-Defence
- – (b) Lawful arrest or prevention of a person escaping from detention
- – (c) quelling a riot or insurrection
State must investigate and has a limited positive obligation.
NO derogation possible.
Described as an absolute right, this is not strictly correct as the state is permitted to take life in certain circumstances laid out in Article 2(2).
HR: Limited Rights - ARTICLE 5: LAWFUL ARREST
No person may be deprived of their liberty except via LAWFUL ARREST (Art 5(1)(a-f)) accordance with PROCEDURE PRESCRIBED BY LAW (Art 5(1))
- Forced psychiatric detention after successful treatment was UNlawful (Johnson v UK)
- Suspicion must always be R, regardless of the circumstances, in order for an arrest to be lawful under Art 5(1)(c) (Fox, Campbell v Hartley v UK)
- Asylum seekers may be detained under Art 5(1)(f) until their entry can be authorised. Provided that detention is not for an EXCESSIVE period and the CONDITIONS they are in are R (R(Saadi) v SoS HD)
- detention on mental patients MAY be lawful where alternative accommodation unavailable (R(W) v Doncaster MBC)
- control orders MAY amount to deprivations of liberty (Guzzardi v Italy; SoS v AP; Re JJ cf. SoS HD v E)
- the police tactic of “settling” will not contravene if its use is PROPORTIONATE to the situation (Austin v Commissioner of Police; R(Moos) v Commissioner of Police)
HR: Limited Rights - Article 5: SPECIAL SITUATIONS
DEROGATION
- the state may derogate form Art 5 in EMERGENCY SITUATIONS, but ONLY to the extent STRICTLY REQUIRED by the situation (Art 15)
- – Indefinite detention without trial is NOT permissible (A and Others v SoS HD)
Police and Criminal Evidence Act 1984 (PACE)
- an arrested person can be for held for 24 HOURS WITHOUT CHARGE (s.41(7) PACE)
- – may be extended to 36 hours if authorised by a superintendent or higher ranking officer (s.42(1))
- – detention beyond 36 hours requires authorisation by warrant from a magistrate’s court (s.43(4))
- MAX: 96 HOURS (s.44(3)(b))
TERRORISM ACT 2000
- a police officer may arrest a person who they ‘R suspects is a terrorist’ (s.41(1) TA 2000)
- – NO REQ that they believe the individual has/will commit an act of terrorism (s.40(1)(b))
- initial period of detention is 48 HOURS (s.41(3))
- – a senior judge may extend this up to 7 days (s.41), can then be extended further in 7 day intervals to a MAX 28 days (Sche 8).
- – Detention beyond the 48 hour period WITHOUT A HEARING will likely constitute a breach (Brogan v UK)
The provision of PACE and TA will likely conform with Art 5(1)(c), provided that an act of terrorism is the basis for the arrest and questioning takes place with regard to a SPECIFIC OFFENCE.
HR: Limited Rights - ARTICLE 6
THE RIGHT TO A FAIR TRIAL
There is a presumption of innocence until proven guilty (Art 6(2))
- This applies to due process (R(Wright and Others) v SoS Health)
The rights entailed here are outlined in Art 6(3):
- The right to LEGAL ADVICE (and FREE legal advice when the individual cannot afford it and justice requires it) (Art 6(3)(c); Airey v Ireland; Benham v UK)
- the right to legal advice may extend to pre-trial situations such as post-arrest questioning (Murray(John) v UK)
- VIOLATION OF THE CONFIDENTIALITY of consultations will breach Art 6(1) (Brennan v UK)
- Individuals have the right to consult a solicitor PRIVATELY at ANY TIME (s.58(1) PACE, Sche 8, para 7 TA) though this can be delayed for up to 36 hours for a good reason (s.58(6) PACE) and 48 hours in terrorist cases (Sche 8, para 8(1) TA).
- Denying exceptional legal aid funding was unlawful (R(Gudanviciene) v Director of Legal Aid) - The right to be given ADEQUATE TIME and FACILITIES to prepare a defence (Article 6(3)(b)).
HR: Limited Rights - Article 6: OTHER FACTORS
ACCESS: individuals must have EFFECTIVE access to the courts and legal representation (Airey v Ireland)
TIMING: individuals are entitled to a fair and public hearing within a R time (Art 6(1))
- a delay of 27 months between charge and trial was unR (HM Advocate v JK)
INDEPENDENCE AND IMPARTIALITY: The court must be independent and impartial (Art 6(1))
- The impartiality requirement will be violated if ANY doubt exists as to the court’s impartiality (McConnell v UK)
- A court need not necessarily be completely independent if the DECISION it reaches it FAIR and R (R(Beeson) v Dorset CC)
- the independence and impartiality req extends to PROSECUTORS (R v Stow)
ADMISSION OF EVIDENCE
- Evidence must be admitted where failure to admit the evidence would affect the FAIRNESS of the trial (R v A(Complainant’s Sexual History) (No. 2))
- Cross-examination of ALL witnesses is NOT required for a trial to be fair (R v Horncastle)
THE RIGHT TO SILENCE
- Art 6(2) includes the right to silence, but it is not an absolute right
- – silence CAN be taken into account where evidence weighs strongly against the individual (R v Murray)
- – Adverse inferences may be drawn from D’s choice to remain silent under initial questioning (s.34-37 Criminal Justice and Public Order Act 1994)
- – Adverse inference CANNOT be drawn from a decision to remain silent due to:
- — a lack of legal representation (Murray v UK)
- — legal advice to remain silent (Condron v UK)
- – an individual cannot be compelled to incriminate themselves (Saunders v UK)
DEPORTATION: Deporting individuals where they face dangerous situations will breach Art 6 (Othman(Abu Quatada) v UK)
HR: Limited Rights - ARTICLE 2: INVESTIGATION
The state must (McCann, Farrell and Savage v UK):
- only kill LAWFULLY. Must ensure that law enforcement trained to use lethal force ONLY WHEN NECESSARY.
- undertake an INVESTIGATION where it has taken a life DIRECTLY. This applies to UK actions both abroad and domestically (Al-Skeini v UK) These investigations must be:
- – proper and effective (Jordan v UK; Kelly and Others v UK)
- – public, independent and involve participation of the victim’s family where necessary (R(Amin) v SoS HD).
HR: Limited Rights - ARTICLE 2: Positive OBLIGATION
The state has a LIMITED positive obligation to safeguard life (Osman v UK)
- May have a duty to safeguard soldiers’ lives in combat by providing proper training/equipment (Smith, Allbutt and Ellis v MoD)
- the state has NO DUTY to prolong a life (NHS Trust A v M; NHS Trust B v H)
- Article 2 does however prohibit euthanasia (Pretty v UK)
HR: Limited Rights - ARTICLE 5: DUE PROCESS
There must be no interference in DUE PROCESS
- An arrested person must be promptly informed, in a suitable language, why they have been arrested and any charges against them (Art 5(2))
- – FULL reasoning need not be provided at point of arrest, so long as provided later on (Fox, Campbell and Hartley v UK)
- An arrested and detained prisoner must be brought before a judge PROMPTLY (Art 5(3))
- – four days and six hours before seeing a judge was TOO LONG (Brogan v UK)
- the arrested individual must be allowed to speedily challenge the lawfulness of their detention in court (Art 5(4)).
- – delays of 21 and 24 months were TOO LONG (Hirst v UK)
- – judiciary must be involved in deciding the victim’s tariff (T and V v UK)
HR: Limited Rights - ARTICLE 5: COMPENSATION
Victims of breaches of Art 5 are entitled to COMPENSATION (Art 5(5)).
