6 - Human Rights Law Flashcards
Describe and explain Art 5
Art 5 (1) - Everyone has the right to liberty and security of person.
A state can justifiably deprive someone of their liberty if:
s5(1)(a) - after conviction by a competent court.
s5(1)(b) - after non-compliance with a court order
s5(1)(c) - if they are committing or is about to commit an offence.
Conditions:
Art 5 (2) - inform asap of their arrest, with a reason and in language they understand
Art 5 (3) - must be brought to trial asap and must be bailed or be released within a reasonable period.
Art 5 (4) - entitled to a swift trial to decided their innocence or guilt
Art 5 (5) - if any Art 5 rights are infringed the person is entitled to compensation.
Describe and explain stop and search
Powers set out under s1-s2 of PACE 1986.
Police can stop and search any individual or vehicle on the street.
They must have reasonable grounds they will find prohibited items - it should not be based on appearance, clothing or previous convictions.
The person must be given the reason.
The officer must give their number and station.
It can only include removal of outer clothing, vehicles, bags.
s3 - the officer must provide a written record of the search and the suspect is under now no obligation to answer any questions prior to arrest (Rice V Connelly).
s60 Criminal Justice and Public Order Act 1994 - Police can carry out blanket stop and searches in a particular area without needing reasonable grounds if there is a fear that serious violence may occur and permission is given by inspector or above for a 24 hour period.
s47A Terrorism Act 2000 - senior police officer can give permission to blanket stop and searches in a reasonable are for a reasonable period of time to prevent terrorism - created after Gillan.
Describe and explain arrest.
Set out in s24 Pace 1984 and Code G of the Police Codes.
O Hara gives a 2 part test
1) There must be reasonable grounds. Suspect has committed an offence, is in the course of committing an offence or is about to commit an offence.
2) It must be necessary
because suspect refuses to give name, to stop them from disappearing, to preserve evidence, for the safety of the suspect or others.
An officer must inform suspect that they are under arrest, using language that they will understand (Christie V Leichinsksy). There are no particular words that have to be said (Taylor).
Suspect must be given a caution and advised of their right to remain silent.
They must be taken to the police station as soon as possible.
s58 PACE - right to consult a solicitor
s56 PACE - right to inform someone of their arrest - R v Samuel
s34 Criminal Justice and Public Order Act - an adverse inference can be inferred from silence.
Describe and explain detention at the police station.
s58 PACE - right to consult a solicitor
s56 PACE - right to inform someone of their arrest - R v Samuel
Custody officer must check the suspect in, they are then checked after 6 hours and then every 9 hours.
The detainee has a right to see the Codes of Practice.
Can only be detained without charge for 24 hours, can be extended to 36 hours with permission. With permission from a magistrate can be extended to 96 hours.
Right to a warm, well-ventilated cel; and 8 hours of continuous rest in a 24 hour period.
Right to food and drink.
Interviewing - s60 PACE - must be recorded, suspect has right to be seated and to have regular breaks.
Right to a solicitor.
Suspect must know they can remain silent but this can cause and adverse inference in court.
Describe and explain samples and searches.
s55 PACE - suspect in searched on arrival at the police station.
Strip searches must be performed of a same sex officer, suspect must always have half their clothing on (top/bottom).
A mouth search is not intimate, other orifices are and should be done by a medic.
Non-intimate samples are fingerprints, hair, nail clippings,
Intimate samples are blood, semen and saliva - consent must be given
DNA samples can be taken and retained - they cannot be kept indefinitely if their is no charge (Marper V UK). LASPO 2012 - DNA evidence can only be retained if a person is convicted of an indictable offence.
Describe and explain Art 8.
Art 8(1) - Everyone has the right to respect for his private and family life, his home and his correspondence.
Everyone - includes citizens (Klass V Germany) and business life (Niemietz V Germany)
Respect - state must not interfere and try to protect (Sheffield & Horsham V UK)
Private Life - Pretty V UK - includes physical and psychological integrity, sex life and gender, personal data, reputation, names, photographs, surveillance. - isn’t exhaustive (Peck)
Family Life - right to enjoy relationships without state interference includes care, children, family break ups caused by immigration. Family is on close family ties (Lebbink V Netherlands), covers any ongoing ties after divorce (Berreheb V Netherlands), is biological and social responsibility (Kroon V Netherlands). Child centred approach
Home: allowing people access to the homes without state interference and be peaceful and free from pollution (not a right to a home) Right not to be evicted (Connors V UK), no horizontal effect (McDonald V McDonald)
Correspondence - includes all forms of communication (Kennedy V UK), right can be reduced at work but not removed (Barbulesco V Romania)
Art 8(2) - any limitation must be in accordance with the law, necessary and proportionate in a democratic society for one of the legitimate reasons:
-National security
-public safety and economic wellbeing
-prevention of disorder or crime
-protection of health or morals
-protection of the rights and freedoms of others.
ECtHR recognises that the state is sometimes in a better decision to decide the most appropriate measure. Especially about public morals (Handyside V UK)
Describe and explain Art 6
Art 6 (1) - In the determination of his civil rights or obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing, within a reasonable time, by an independent and impartial tribunal established by law.
FAIR & PUBLIC:
Equality of arms - Steel & Morris v UK
Presumption of innocence - Woolmington
Privilege of self-incrimination - Mrs Brown’s Case.
Children can’t be tried in an adult court - T & V v UK
Art 6 (1) - public can be excluded from certain trials if in the interest of public morals and order, protection of juveniles, in the interests of national security or if it would prejudice the interests of justice.
INDEPENDENT & IMPARTIAL TRIBUNAL
Achieved by independent judiciary - random jury, judges must be independent (Re Pinochet).
Art 6 (2) - Innocent until proven guilty
-Right not to self-incriminate.
-Right to free legal advice.
-Burden of proof on prosecution.
Art 6 (3) - Minimum rights
a) told promptly and in understandable language of the charge.
b) to have adequate time and facilities to prepare a defence
c) defend himself in person or through legal assistance, when he cannot afford this it is provided when in the interests of justice
d) to examine witnesses - R v Davis
e) to have a free interpreter if needed.
In terrorism cases the police can deny legal advice for longer - Ibrahim v UK
Describe and explain Breach of Confidentiality.
Old common law offence
D has communicated information which they were given by the claimant under an obligation of confidence and the information had a confidential quality to it.
E1) Information was given in a way that raises a duty - covers relationships like marriage (Duchess of Argyll v Duke of Argyll)
E2) Has a confidential quality
E3) Can arise from employment
E4) D must use it in an unauthorised way
Defences: Already in public domain, info wasn’t confidential, info is of the public interest (Mosley v News Group Newspapers) - what may interest the public is not necessarily of public interest (AG V Guardian Newspaper)
Describe & explain interception of communication.
Interception of Communication Act 1985 passed after Malone v UK. Replaced by Regulation of Investigatory Powers Act 2000, amended by Investigatory Powers Act 2016 (IPA).
RIPA
s1 - unlawful to intercept communication without consent or a warrant. Warrants are 3 months and given by Home Secretary if necessary & proportionate.
s1(1) - criminal offence for any person without consent or warrant to intercept any communication in the UK (postal, electronic etc.)
s5 - interception is lawful if a warrant is issued by the secretary of state.
s6 - only people that can apply for an interception warrant are listed in s6(2) (e.g. Director General of the Security Forces).
Describe and explain Art 10.
Art 10 (1) - Everyone has the right to freedom of expression. Hold opinions and to receive and impart information and ideas without interference from public authority and regardless of frontiers.
Art 10 (2) - Limitations.
-Must be prescribed by law and be necessary in a democratic society
-Interests of national security (Observe & Guardian v UK)
-Territorial security
-Public safety
-Prevention of disorder and crime (Brind v UK)
-Protection of health and morals (Otto-Preminger Institut v Austria)
-Prevention of disclosure of information received in confidence (Stoll v Switzerland)
-Maintaining authority and impartiality of the judiciary (Sunday Times v UK
HOLDING OPINIONS
-people are allowed to hold their own opinions if it doesn’t effect others (Vogt v Germany)
-state cannot indoctrinate people or produce one sided, unbalanced information to the public.
FREEDOM OF THE PRESS
-Free press allows free expression and debate.
-journalists must be able to protect their sources (Goodwin v UK)
-Problems balancing it with Art 8
POLITICAL EXPRESSION
-High value so margin of appreciation is very narrow.
-Governments should be scrutinised by the press.
ARTISTIC EXPRESSION
-Wide margin of appreciation as state often know best about what is acceptable in that culture. (Otto-Preminger Institut v Austria)
PUBLIC INTEREST
-Matters which raise important debate and concern.
-Sunday Times v UK - government wanted an injunction on a story about thalidomide victims.
States can rarely intervene if in public interest (Monnat v Switzerland)
INCITING HATRED
-Any expression which is hate speech is not covered.
-It can sometimes covered by Art 10 (Jersild v Denmark - racist comments were banned from being aired, this breached Art 10 for some reason)
FREEDOM TO RECEIVE INFORMATION
-right to gather and seek information legally
-does not extended to demanding information from the state (Guerra v Italy)
Describe and explain defamation.
Common law tort. altered by Defamation At 2013.
2 Types: Libel (written) financial loss presumed, slander (verbal) financial loss must be proven.
E1) D makes defamatory statement.
-Tendency to have an adverse effect on C’s reputation (Sim v Stretch)
-Even when no one believes it (Hought v London Express)
-Not just damage to pride (John v Guardian)
-Court views the statement as a whole, in context (Charleston v News Group)
-Includes innuendos (Cassidy)
E2) Must be untrue
E3) Published
-to a third party other than D’s spouse.
-doesn’t have to be intentional (Huth v Huth)
-internet service providers aren’t publishers (MIS v Google)
E4) Refers to C
-doesn’t have to be explicit (Morgan v Oldham’s Press Ltd.)
-doesn’t have to be intentional (Hulton v Jones)
E5) s1(1) - must be likely to cause serious harm to C’s reputation.
s1(2) - for companies it must be financial loss.
Decided by impact of statement not the words themselves (Lachaux)
Defences: s2 - Truth, s3 - honest opinion (Butt v Home Secretary), s4 - public interest.
Describe and explain obscenity.
Obscene Publications Acts 1959 & 1964
s1(1) - obscene means is likely to deprave or corrupt people who read, hear, or see the material
Deprave means make morally bad
corrupt means make to destroy moral purity or chastity.
s1(2) covers articles, sound recording, film, pictures.
s4 excludes materials for the public good. (literature, science, educational)
Describe and explain Art 11.
Art 11 (1) - Right to freedom of assembly and association.
Includes trade unions (Wilson & Palmer v UK), political parties (Aslef v UK - a union can refuse membership if their beleifs conflict with the views of the union).
Covers unlawful peaceful assembly (Cisse v France).
Doesn’t cover protest on private land (Appleby v UK)
Doesn’t include purely social or sporting assemblies.
Right not to be forced to join an association.
It is more than simply socialising (McFeely v UK)
Doesn’t apply to professional bodies (Le Compte v Belgium)
State can intervene if it is in accordance with the law, necessary in a democratic society, proportionate and for one of the reasons given in Art 11 (2)
-Interests of national security
-Prevention of crime or disorder
-Protection of health and morals
-protection of the rights and freedoms of others.
