9 - The European Convention on Human Rights Flashcards

Question

What are the key provisions of Article 5(1)(c) of the ECHR regarding arrest and detention?

Answer 1

Article 5(1)(c) allows for the lawful arrest and detention of a person: - On reasonable suspicion of having committed an offence, or - When it is reasonably necessary to prevent the person from committing an offence or fleeing after doing so. The first limb concerns arrest on suspicion of having committed an offence, requiring objective evidence that would satisfy an objective observer, as outlined in Fox, Campbell and Hartley v UK (1990). The second limb permits detention to prevent a person from committing an offence or fleeing, provided the detention is proportionate and necessary.

Answer 2

The ECtHR ruled in Fox, Campbell and Hartley v UK (1990) that reasonable suspicion under Article 5(1)(c) requires evidence of facts or information that would satisfy an objective observer that the person may have committed the offence. **It is not enough to arrest someone based solely on previous convictions or general suspicion.** **Example**: In Fox, Campbell and Hartley, the ECtHR found that the mere fact that two of the suspects had prior terrorism convictions was insufficient to justify their arrest without additional evidence supporting the suspicion.

Answer 3

The second limb allows for arrest and detention when it is reasonably necessary to prevent someone from committing an offence or fleeing after doing so. - The ECtHR in Ostendorf v Germany ruled that this must be for the purpose of bringing the person before a legal authority. - However, the UK Supreme Court in R (Hicks) v Commissioner of Police (2017) disagreed, holding that short-term detention for preventive purposes was permissible even if the person was not immediately brought before a legal authority. - This view was later confirmed by the Grand Chamber of the ECtHR in S, V & A v Denmark (2019), allowing short-term detention outside of criminal proceedings to prevent a concrete and specific offence.

Answer 4

- ‘Kettling’ is a police tactic to confine crowds in a specific area during demonstrations, which may last for several hours. - The Court looks at the type, duration, effects, and manner of implementation of the restriction. **Example** (Austin v UK, 2012): The ECtHR found that containing protesters within a police cordon for several hours did not constitute a deprivation of liberty because the context – maintaining public order during a volatile protest – justified the measure, and attempts were made to disperse the crowd when possible. The Grand Chamber concluded that police duties must not be undermined, and that the cordon was the least intrusive and most effective crowd control measure. The ruling was based on the specific facts of the case.

Answer 5

Article 5(2) requires that everyone who is arrested must be informed promptly of the reasons for their arrest and of any charges against them. The information must be provided in a language the person understands. The case of Fox, Campbell and Hartley v UK (1990) illustrated this principle, where simply telling someone they were arrested on suspicion of being a terrorist was too broad and failed to meet the requirement of providing sufficient detail. However, subsequent questioning in relation to specific offences within a reasonable timeframe provided enough information for the suspects to understand why they had been arrested, meaning there was no ultimate breach of Article 5(2).

Answer 6

Article 5(3) guarantees that anyone arrested and detained under Article 5(1)(c) must be brought promptly before a judge. - The purpose of this safeguard, as described in McKay v UK (2007), is to prevent ill-treatment, abuse of power by law enforcement, and to minimise unjustified interference with individual liberty. - In Brogan v UK (1989), the European Court of Human Rights (ECtHR) interpreted ‘promptly’ strictly, noting the French term ‘aussitôt’ means ‘immediately’. - The court ruled that holding a terrorism suspect for four days and six hours without judicial authorisation was excessive and would undermine the guarantee against arbitrary interference. - However, the case also acknowledged that national authorities dealing with terrorism cases might face special challenges justifying some flexibility in interpreting ‘promptly’.

Answer 7

Article 5(4) guarantees the right for anyone deprived of liberty by arrest or detention to challenge the lawfulness of their detention in a court or judicial body. The review of detention must be conducted speedily, and any unlawful detention should result in the person’s release. In Hirst v UK (2001), the ECtHR ruled that delays of 21 months and 2 years between Parole Board reviews violated Article 5(4). - The court stressed that, where national law mandates automatic periodic review of detention, such reviews must occur regularly and promptly. - Intervals of more than one year between reviews are generally unreasonable, and the delays in Hirst were not justified by the circumstances.

Answer 8

Article 5(5) guarantees the right to an enforceable claim for compensation to anyone who has been the victim of a violation of Article 5 by the state. However, in the UK, compensation for human rights breaches is provided through section 8 of the Human Rights Act (HRA). Therefore, the Article 5(5) right to compensation would only come into play if an individual needed to take their case to the European Court of Human Rights in Strasbourg after exhausting domestic remedies.

Answer 9

Article 6(1) applies to civil cases, but it does not define 'civil rights and obligations.' The European Court of Human Rights (ECtHR) interprets this term broadly, beyond national law definitions. Article 6 is invoked when an individual asserts a substantive legal right recognised in national law. Typical civil cases include: - Enforcement of private law rights in contract, tort, or property (e.g., breach of contract or claims for damages from personal injury). - Employment law cases affecting an individual's ability to pursue their profession. - Administrative decisions by local authorities regarding licenses or planning permissions, where a fair trial is necessary, allowing for judicial review if fairness is compromised.

Answer 10

The definition of a 'criminal charge' is determined by the ECtHR, notably in Engel v The Netherlands. Key criteria for determining if a legal process constitutes a criminal charge include: - Classification by national law as 'criminal' rather than disciplinary or administrative, which triggers Article 6 applicability. - If not classified as criminal, the court assesses if proceedings resemble a criminal trial (e.g., a finding of guilt or innocence is required). - The purpose of the proceedings is also considered; if they aim to impose punishment, they are likely deemed to involve a criminal charge. The ECtHR has found that prison discipline and administrative offences, such as road traffic or environmental matters, also constitute criminal charges under Article 6(1).

Answer 11

Article 6(1) guarantees the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal. It applies to both civil and criminal cases. Key elements include: **Access to court:** - Individuals must have the opportunity to bring their case before a tribunal. **Independent and impartial tribunal**: - The tribunal must be free from external influence and not biased. - In terms of the impartiality of the court, the rules of natural justice remain relevant. If a judge or magistrate has a personal interest in the outcome of a case, they should automatically remove themselves – or be removed – from the case. If not, bias will be presumed. To take an example, a magistrate should not hear a case involving an alleged theft, if the magistrate was the actual victim of the theft. - If a judge or magistrate has an indirect interest in a case, there is no automatic presumption of bias, and any appellate court would need to apply the test in Porter v Magil namely whether a fair- minded and informed observer would conclude there was a real possibility that the court was biased. - This situation might arise, for example, if a magistrate was hearing a case involving an alleged theft from that magistrate’s next door neighbour. **Public trial**: - The trial should generally be open to the public to ensure transparency, though exceptions exist for reasons such as national security, morals, or the protection of juveniles. - Or where there are special circumstances that, in the opinion of the court, would prejudice the interests of justice. **Reasonable time**: - Trials should occur without undue delay. - This may be particularly important for a defendant who has been refused bail by the court, and who is remanded in custody until their trial date. In the United Kingdom, rules that are known as custody time limits ensure that defendants who are remanded in custody have their trials heard within a reasonable time. **Fair trial:** - The proceedings must be conducted fairly, ensuring that both parties can present their case properly.

Answer 12

Public trials are essential to maintaining transparency and public confidence in the justice system, preventing secret trials by the state. However, Article 6(1) allows for the exclusion of the press and public in certain cases: - **Morality, public order, or national security**: Where public presence could harm these interests. - **Protection of juveniles or private life**: In cases involving minors or sensitive personal information. - **Interests of justice**: If publicity might prejudice justice, the court can exclude the public to ensure fairness.

Answer 13

Effective participation requires that a defendant can actively engage in their trial. Basic elements include: - The trial must occur in the defendant’s presence. - The defendant should be able to follow and comprehend the proceedings. This is particularly important when the defendant is a child. In T v United Kingdom (2000), two 11-year-old boys charged with murder faced trial in an adult Crown Court, which attracted significant media attention. Despite measures taken (e.g., advocates removing wigs and gowns), the ECtHR found these were insufficient for ensuring effective participation, highlighting the necessity for appropriate adaptations in trials involving minors.

Answer 14

Article 6(1) does not mandate the exclusion of evidence obtained illegally or improperly; it allows national laws to determine admissibility. The overall fairness of the trial is the key consideration for the ECtHR. In the UK, Section 78 of the Police and Criminal Evidence Act 1984 (PACE) gives courts discretionary power to exclude prosecution evidence if its admission adversely affects trial fairness. **Example:** In Khan v United Kingdom (2000), the ECtHR found that evidence against Khan, obtained through unlawful bugging, violated his right to privacy. However, the Court ruled that there was no violation of his right to a fair trial, as he had sufficient opportunity to contest the evidence's authenticity. UK courts now typically permit the use of improperly obtained evidence if relevant unless it is deemed unreliable. Evidence obtained through torture or inhuman treatment must be excluded, aligning with Article 3 of the Convention, and confessions obtained under oppressive conditions are also excluded under Section 76 PACE.

Answer 15

Article 6(2) enshrines the principle that everyone charged with a criminal offence is presumed innocent until proven guilty. This principle is a core part of both common law and the ECHR, requiring the prosecution to prove guilt without the defendant needing to prove innocence. Strict liability offences (e.g., where no guilty mind is required) are permitted under the ECHR as long as they are reasonable, as in Salabiaku v France. The right to silence is implied in Article 6(2). Defendants are not obliged to answer police questions or give evidence. However, under the Criminal Justice and Public Order Act 1994, courts may draw adverse inferences from a defendant’s silence, but they cannot convict solely based on silence (as affirmed in Murray v UK).

Answer 16

Article 6(3) provides several additional rights to anyone charged with a criminal offence, which are part of the overall right to a fair trial in Article 6(1). Key rights include: **Right to be Informed**: Defendants must be promptly informed of the nature and cause of the accusation in a language they understand. This includes details about the offence and the evidence against them. **Right to Adequate Time and Facilities**: Defendants must have sufficient time and resources to prepare their defence, such as contacting witnesses or obtaining relevant documents. **Right to Defend Themselves or Have Legal Representation**: Defendants can represent themselves or have legal assistance. If they cannot afford it, legal representation must be provided free of charge when necessary for justice. **Right to Call and Cross-Examine Witnesses**: Defendants have the right to examine witnesses against them and call witnesses in their defence. If a witness cannot be cross-examined due to death or being overseas, their written statement may be read, with caution advised by the judge regarding its reliability. **Right to Free Assistance of an Interpreter**: If a defendant does not understand the court language, an interpreter must be provided to ensure effective participation in the proceedings.

Answer 17

Article 7 prohibits charging individuals with a criminal offence for conduct that was not a crime at the time it was committed. The state must clearly define criminal offences to ensure individuals know when they are breaking the law. It is also a violation of Article 7 for courts to impose a heavier penalty than was applicable at the time of the offence. **Example**: In SW v United Kingdom; CR v United Kingdom (1995), the ECtHR ruled that the gradual clarification of criminal liability does not breach Article 7 as long as it can be reasonably foreseen. **Exception**: - Article 7(2) ECHR contains an exception, which is that people can still be prosecuted retrospectively for conduct that was ‘criminal according to the general principles of law recognised by civilised nations’, even if the conduct was not criminal at the time it was carried out. This was included to ensure that after World War II Article 7(1) did not prevent individuals from being prosecuted for war crimes that did not constitute criminal offences in Nazi Germany and other relevant states at the time of their commission

Answer 18

Qualified rights under the ECHR are those that have specific limitations and can be interfered with under certain conditions. A government can only lawfully interfere with a qualified right if: - The interference is prescribed by law. - It has a legitimate aim. - It is necessary in a democratic society. The ‘**proportionality test**’ is applied by courts to determine if the interference is necessary.

Answer 19

The ‘**proportionality test**’ is applied to see if a restriction is necessary in a democratic society, and ensures a fair balance between pursuing a legitimate aim and protecting Convention rights. Initially set out in R (on the application of Daly) v Secretary of State for the Home Department and built upon in Huang v Secretary of State for the Home Department, the test was combined in Bank Mellat v HM Treasury (No 2). The four-part test includes: 1. Whether the objective of the measure is sufficiently important to justify the limitation of a fundamental right. 2. Whether the measure is rationally connected to the objective. 3. Whether a less intrusive measure could have been used. 4. Whether a fair balance has been struck between the rights of the individual and the interests of the community.

Answer 20

Article 8 is a qualified right. Article 8 guarantees respect for four key aspects: - A person’s private life: See below. - Family life: Which covers one's relation with one's close family, and includes a man and a woman who are not married but who live in a stable relationship. - Home: This means the right to respect for one's home and where one currently lives. - Correspondence: This includes phone calls, letters, and e-mails. Issues encompassed within a person’s private life include: - Bodily integrity (e.g., being forced to have medical treatment) - Personal autonomy (the right to make decisions about one’s life) - Sexuality - Personal information (its holding, use, or disclosure) A relevant case is Peck v United Kingdom (2003), where CCTV footage of an attempted suicide led to a finding of serious interference with the individual’s right to respect for private life due to disproportionate disclosure when this footage was included in an advertisement.

Answer 21

Article 8(1) declares that the state must respect each person's private and family life, their home and correspondence. These four very broad protected interests are distinct ideas, although they overlap in various situations. These freedoms can be restricted, however, as article 8 is a ‘qualified’ right. In accordance with paragraph 8(2), the state is able to interfere with these rights but only where the interference is ‘in accordance with the law’, is pursuant to one of the legitimate aims set out in 8(2), and is ‘necessary in a democratic society’.

Answer 22

Article 8 also covers the retention of personal data, as demonstrated in S and Marper v the United Kingdom (2008), where the ECtHR held that the indefinite retention of fingerprints and DNA samples, even for those acquitted or where proceedings were discontinued, breached the applicants’ rights. The court found this retention constituted a disproportionate interference with the right to respect for private life, which is not necessary in a democratic society. In response, Parliament enacted the Protection of Freedoms Act 2012, mandating the deletion of certain DNA profiles from the database.

Answer 23

Family life covers relationships with close family members, including unmarried couples in stable relationships. Article 8 has significant implications in deportation, removal, or extradition cases, where individuals argue that these actions disproportionately harm family ties. For instance, in R (Razgar) v Secretary of State for the Home Department (2004), the House of Lords recognised that Article 8 could be engaged concerning the mental or physical health of an individual upon removal. The European Court of Human Rights in Uner v The Netherlands (2007) identified factors such as the length of stay in the country, the seriousness of offences, family circumstances, children’s interests, and ties with both countries to assess the proportionality of deportation.

Answer 24

In Uner v The Netherlands, the ECtHR found that deportation could engage Article 8 rights and required a fair balance between public safety and family life. The Court evaluated factors like: - The length of time in the country - Seriousness of offences - Particular family circumstances (e.g., children’s ages) - Potential difficulties faced by the family in the receiving country - Nature of ties with both the expelling and receiving countries In this case, while Uner had strong ties to the Netherlands, the Court determined that the balance was justifiably struck in favour of the Netherlands, given the serious nature of his offences.

Answer 25

Article 8 is significant in climate change litigation, as evidenced in Verein KlimaSeniorinnen Schweiz v Switzerland (2024), where the applicants claimed inadequate measures by Swiss authorities violated their rights under the Convention. While individual complaints were deemed inadmissible, the ECtHR acknowledged that the association had standing to represent those affected by climate change. The Court held that Article 8 includes the right to effective protection from serious adverse effects of climate change on life, health, well-being, and quality of life. The ECtHR found that the Swiss authorities breached their obligations by failing to establish a regulatory framework for greenhouse gas emissions and missing emission reduction targets.

Answer 26

Article 8 of the ECHR protects the right to respect for private life. In Khan v UK (2001), police installed a hidden listening device in a hotel to record a conversation about a drugs deal. At the time, there was no UK legislation governing the use of such devices. The ECtHR held that state surveillance must be 'in accordance with the law' under Article 8(2), meaning a clear statutory framework must exist. Since this was absent, the surveillance was an unlawful interference with the applicant's right to privacy. The Regulation of Investigatory Powers Act 2000 (RIPA) now provides a legal framework governing state surveillance. In R (Wood) v Commissioner of Police of the Metropolis (2009), the retention of photographs of a peaceful demonstrator engaged Article 8. Keeping the photos after it became clear the individual had committed no crime was found to be disproportionate, breaching his Article 8 rights.

Answer 27

- Article 8 protects individuals from interference with their private life, which may include searches of the person. - In R (Gillan) v Commissioner of Police of the Metropolis (2006), the House of Lords held that stop-and-search powers under the Terrorism Act 2000 did not violate Article 8 if they involved superficial searches like bag checks. - However, the ECtHR in Gillan and Quinton v UK (2009) held that Article 8 was engaged as the domestic legislation lacked sufficient safeguards to prevent arbitrary interference with privacy, making the powers not ‘in accordance with the law’.

Answer 28

Article 8 protects family life, including the right to marriage and family reunification. In Quila v Secretary of State for the Home Department (2011), the Supreme Court found that the ban on marriage visas for individuals under 21 breached Article 8. The rule, aimed at preventing forced marriages, disproportionately affected unforced marriages, thus failing the test of necessity in a democratic society.

Answer 29

The definition of 'family' under Article 8 extends beyond traditional marriage-based relationships. In Kroon v Netherlands (1995), the ECtHR ruled that 'family life' includes de facto family ties, such as in cases where partners live together outside of marriage, recognising that the concept of family is not confined to legal marriages.

Answer 30

Article 8, in conjunction with Article 14 (non-discrimination), protects against discriminatory restrictions on family life. In Steinfeld & Keidan v Secretary of State for Education (2018), the Supreme Court held that prohibiting civil partnerships for opposite-sex couples under the Civil Partnership Act 2004 was an unjustified interference with their Article 8 rights, leading to a declaration of incompatibility with the ECHR.

Answer 31

Article 8 protects individuals from interference with their home, ensuring respect for home life. However, it does not guarantee a right to be provided with a home. The principle focuses on protecting the home from intrusion, but also includes maintaining the situation to which a person has become accustomed. **Example**: In R (Coughlan) v N and E Devon Health Authority, a paraplegic claimant was accustomed to living in a specially adapted residence. The enforced move by the health authority was found to violate Article 8 due to the emotional and therapeutic impact

Answer 32

Police visits for monitoring registered sex offenders can engage Article 8 rights, as they may interfere with private life and home life. In R (M) v Hampshire Constabulary, the court held that such interference was justified to protect vulnerable individuals, as long as visits were proportionate, not overly frequent, and did not disclose private information. The ability of police to seek a warrant under s. 325 of the Criminal Justice Act 2003 was not seen as vitiating consent when access was denied, provided that the warrant was not automatically granted.

Answer 33

Article 8 extends protection to the quality of home life, including protection from nuisances like noise, smells, or leaking waste. The state has a positive obligation to manage such issues to prevent them from affecting home life. **Example**: In Hatton v UK, the ECtHR scrutinised the UK’s efforts to reduce noise levels around Heathrow Airport. While the UK’s margin of appreciation was acknowledged, the state’s obligation to manage environmental impacts affecting quality of life was emphasised.

Answer 34

Initially focused on letters, Article 8’s protection of correspondence has extended to emails, text messages, and other modern forms of communication. **Example**: In Malone v UK, police interception of postal and telephone communications violated Article 8 due to lack of clear legal regulation. Similarly, in Copland v UK, monitoring of emails and internet usage by a public employer was found to engage Article 8.

Answer 35

States can lawfully interfere with Article 8 rights for national security purposes, but such claims are subject to scrutiny. **Example**: In Secretary of State for the Home Department v AP, a control order imposing a 16-hour curfew and requiring the appellant to live far from his family was found to violate his right to family life, as the restrictions were disproportionate.

Answer 36

States may interfere with Article 8 rights to protect economic well-being, but must balance this against individual rights. **Example**: In Da Silva v Netherlands, the ECtHR found that a refusal to grant residency to the applicant violated Article 8, as preserving family ties outweighed the economic interest of the state, despite the applicant’s illegal work.

Answer 37

Interference with Article 8 rights can be justified to protect health and morals, but such interference must be proportionate. **Example**: In Wainwright v UK, intimate body searches of prison visitors were found to violate Article 8, as the manner in which they were conducted was disproportionate to the aim of preventing crime and protecting prisoner health.

Answer 38

Article 9(1) provides that everyone has the right to: - Freedom of thought, conscience, and religion - Freedom to change one’s religion or belief - Freedom to manifest religion or belief, alone or in community, and in public or private, through worship, teaching, practice, and observance. While freedom of thought, conscience, and religion is an absolute right, the right to manifest religion or belief is a qualified right and can be restricted if: - Restrictions are prescribed by law - A legitimate aim is pursued - The restrictions are proportionate.

Answer 39

Recent issues include the extent to which individuals may be prevented from manifesting their religious beliefs through: - Prohibitions on wearing specific clothing items - Requirements to perform certain tasks at work Such restrictions have been evaluated in workplace and school contexts. **Examples**: In Eweida and others v United Kingdom the Court found that the balance between Eweida's right to manifest her belief (wearing a cross) and British Airways’ corporate image was not fair. The domestic courts failed to protect Eweida’s rights, violating Article 9. In R (Begum) v Governors of Denbigh High School (2006) the House of Lords found no violation of Shabina Begum’s rights under Article 9 after she was excluded for not complying with the dress code. The Lords noted: - The circumstances surrounding the interference, including the school’s dress policy aimed at inclusivity - Begum’s family had chosen a school outside their catchment area, and she had previously worn a shalwar kameez without objection - The school’s uniform policy respected Muslim beliefs while contributing to harmony and success, leading to the conclusion that the school acted proportionately without unlawful interference with Begum’s rights.

Answer 40

Article 10(1) of the ECHR gives an individual the right to freedom of expression, which includes: - The freedom to hold opinions. - The freedom to receive and impart information and ideas without interference by public authority. This right is qualified and may be subject to restrictions that are prescribed by law, in pursuit of a legitimate aim, and are proportionate to that aim.

Answer 41

Freedom of expression may take various forms, such as: - Artistic expression, exemplified by the publication of a book that contains graphic sexual content. - Media stories regarding the private life of a celebrity. - Commercial information (see Colman v UK (1993) ECHR 30, concerning restrictions on advertising by private medical practices). - Most significantly, the expression of political views, as the state suppressing political views it objects to would be a restriction on a fundamental right. It is notable that one of the hallmarks of a dictatorial or oppressive state is the crushing of any political dissent. In practice, the courts often give stronger protection to political and journalistic expression than to the other forms of expression. The ECtHR is more likely to supervise the states’ enforcement of article 10 in cases involving journalistic freedom and political forms of expression.

Answer 42

The ECtHR has repeatedly emphasised the importance of protecting political free speech; however, there are circumstances where a state may lawfully interfere with this right, particularly in matters concerning national security. **Example**: In Observer and The Guardian v United Kingdom (1992), various newspapers complained that interim injunctions restraining them from publishing extracts from “Spycatcher,” a book written by a former member of the security services, contravened their right to freedom of expression. The Court found that: - The interim injunctions were lawful and pursued the legitimate aim of national security. - The injunctions were proportionate as they were only obtained on an interim basis, pending a final hearing to determine whether publication of the book should be allowed.

Answer 43

The ban on broadcast political advertising in the UK, as set out in the Communications Act 2003, was considered by the ECtHR in Animal Defenders v United Kingdom [2013]. Animal Defenders, which campaigned against the use of animals in commerce, science, and leisure, wished to broadcast a television advertisement, but the relevant UK broadcasting authority refused clearance for it because its objectives were political as defined in the Communications Act. The House of Lords determined that: - The prohibition was an interference with Animal Defenders' Article 10 rights but pursued the legitimate aim of preserving the impartiality of broadcasting, thereby protecting the democratic process. - The issue revolved around the measure's proportionality. The House of Lords found that the ban had resulted from extensive parliamentary consideration, supported by all political parties, and that alternative media were available for Animal Defenders to disseminate their views. - The ECtHR concluded that the ban was a proportionate means of ensuring that facts regarding perceived animal exploitation were not distorted, and thus did not violate Article 10.

Answer 44

The ECtHR grants a high degree of protection to political free speech, and free speech that is offensive, shocking, or disturbing is also protected by Article 10 and should not be restricted by the state. However: - Speech that expresses racial or religious intolerance is not protected. For instance, in Jersild v Denmark (1995), the Court ruled that the expression of outright racist views would not be protected by Article 10 as these views went beyond what was considered offensive, shocking, or disturbing. - In the UK, the Public Order Act of 1986 creates several criminal offences connected to racial, religious, and sexual hatred but allows for criticism of religions to a certain extent due to wider ethical and moral considerations. - Norwood v United Kingdom affirmed that hate speech, even when frame as political expression, is not protected under Article 10.

Answer 45

In Percy v DPP [2001], Percy, a protester against American military policy, appealed her conviction for an offence under the Public Order Act after defacing an American flag. The judge initially ruled that the restrictions on her freedom of expression were necessary and proportionate. However, the Divisional Court found: Her conviction was not compatible with her right to freedom of expression. Relevant considerations included: - Whether her behaviour exceeded legitimate protest. - If her actions constituted an open expression of a public interest issue but were disproportionate and unreasonable. - Whether she could have expressed her views in another way - Her awareness of the likely effect on witnesses. - Whether the use of the flag was gratuitous and calculated as an insult.

Answer 46

Article 10 can protect the right to receive information, but it does not create a general right to 'freedom of information.' In Open Door Counselling and Dublin Well Woman Centre Ltd v Ireland (1992), the ECtHR ruled that an injunction prohibiting dissemination of information on abortion services in the UK violated Article 10, as it disproportionately interfered with the clinics' freedom. In R v Secretary of State for Health, ex parte Wagstaff (2001), the High Court found that holding the inquiry into Dr Harold Shipman in private contravened Article 10, as it interfered with the public's right to receive information. However, Kennedy v The Charity Commission (2014) reinforced that Article 10 does not impose a general duty of disclosure on public authorities, as seen when a journalist's attempt to obtain information under the Freedom of Information Act 2000 was rejected.

Answer 47

The protection of reputation is one of the most common countervailing interests arising from case law. - In Lingens v Austria (1986) 4 EHRR 373, the ECtHR found a journalist's conviction for defamation of the former Austrian Chancellor to be a disproportionate response to the aim of protecting reputation under Article 10(2). - This criminalised statements of opinion and imposed an impossible burden on the author to justify them. The ECtHR explained that limits of acceptable criticism are wider for politicians than for ordinary citizens, requiring politicians to display a greater degree of tolerance of criticism.

Answer 48

The phrase 'rights of others' relates to several legitimate reasons for interference with Article 10 rights, including morality and blasphemy. In Prolife Alliance v BBC [2003] UKHL 23, the BBC refused to broadcast a party political broadcast on grounds of taste and decency. - The majority of the House of Lords found that Parliament imposed an obligation on broadcasters to comply with taste and decency standards. - The BBC's decision was consistent with such principles, indicating that Article 10 can protect not only the substance of ideas but also the tone or manner in which they are conveyed. - The use of a graphic video of abortions was deemed subject to a proportionate restriction rather than the underlying political or ethical message. Lord Nicholls stated: ‘Freedom of political speech is a freedom of the very highest importance in any country which lays claim to be a democracy. Restrictions on this freedom need to be examined rigorously by all concerned, not least the courts.’

Answer 49

The Strasbourg court generally allows a wide margin of appreciation concerning blasphemy, upholding national laws that protect against religious offence as compatible with Article 10. In Otto-Preminger-Institut v Austria (1994) 19 EHRR 34, the applicant association advertised the screening of a film covering controversial and allegedly blasphemous themes. - Following a public prosecutor's application, the regional court ordered the permanent forfeiture of the film. - The ECtHR held that this seizure pursued the legitimate aim of protecting the rights of others in relation to the right to freedom of religion under Article 9 of the ECHR. The court acknowledged that there is no uniform conception across Europe regarding the significance of religion, thus a margin of appreciation must be left to national authorities.

Answer 50

Breach of confidence can prevent disclosure of confidential information, particularly relevant to national security, as seen in the Spycatcher case. In Goodwin v UK (1996), the ECtHR reinforced the necessity of protecting journalistic sources, highlighting that forcing disclosure undermines press freedom unless justified by a compelling public interest. The same reasoning applied in Financial Times v UK (2010), where the court ruled that interference with journalistic sources was not proportionate.

Answer 51

Maintaining the authority and impartiality of the judiciary is an important legitimate aim, essential for upholding the role of the judiciary but potentially conflicting with open justice. In Sunday Times v UK (1979-80) 2 EHRR 245, the case concerned an article on the Thalidomide drug and legal conflict with its manufacturers. - The UK courts imposed a preventive injunction restricting publication, finding that the article prejudged legal issues. - The ECtHR found this measure restricted freedom of expression under Article 10 but affirmed that it fell within the aim of ‘maintaining the authority ... of the judiciary.' - However, the court held that the interference was not ‘necessary in a democratic society’, leading to amendments in UK law through the Contempt of Court Act 1981.

Answer 52

Prior restraints, such as injunctions, on freedom of expression demand a very high level of justification due to their restrictive nature. The term 'super-injunction' refers to orders that restrain not only the publication of material but also information about the injunction itself. In Mosley v UK [2011] ECHR 774, the applicant argued for a legal measure requiring media organisations to notify individuals before publishing information interfering with their private lives. The ECtHR rejected this argument, holding that such a measure would unduly restrict the media's freedom of expression under Article 10.

Answer 53

Article 11 of the ECHR guarantees the right to peaceful assembly and the separate right to freedom of association. These rights are crucial for: - The effective exercise of free expression. - The protection of groups with social, cultural, political, and economic aims. Conduct falls within the scope of Article 11 if it constitutes ‘peaceful assembly,’ which includes private meetings, public gatherings, and processions. Importantly, Article 11 does not protect violent behaviour.

Answer 54

Article 11 creates a positive right to freedom of assembly, implying state protection for lawful meetings. The ECtHR has stated that states must take positive measures to protect peaceful assembly from interference. However, the state may restrict protests if they provoke violent responses. In Tabernacle v Secretary of State for Defence [2009], a byelaw preventing peaceful camping near a nuclear facility violated rights under Articles 10 and 11, demonstrating the interconnected nature of freedom of expression and assembly.

Answer 55

Article 11 includes the right to freedom of association, meaning: - Individuals have the right to organise with others for a common aim, encompassing various bodies such as pressure groups, political parties, and religious organisations. - Without this right, states could ban groups they oppose, including political parties. - The right is qualified, allowing for lawful limitations if prescribed by law, aimed at a legitimate goal, and proportionate to that aim. **Examples**: - Cases like United Communist Party of Turkey v Turkey (1998) illustrate that bans on political parties must demonstrate legitimate aims and proportionality. The Court found the dissolution of the party to be disproportionate and a violation of Article 11. - Conversely, in Refah Partisi v Turkey (2003), the Court upheld the dissolution of a political party advocating for sharia law, viewing it as a necessary measure to protect democratic principles, indicating the balance between freedom of association and state security.

Answer 56

Article 12 protects: - The right of men and women of marriageable age to marry and start a family. - The ECtHR ruled in Goodwin v United Kingdom (2002) that this right extends to transsexual individuals. - However, it does not require the state to recognise same-sex marriages, as established in Chapin and Charpentier v France (2016). - The right to marry is subject to national laws, including prohibitions on marriage between certain types of individuals, such as close relatives. - Any restrictions imposed by the Government must not be arbitrary and should not interfere with the essential principle of the right. - For instance, in B v United Kingdom (2004), prohibiting the marriage of a father-in-law to a daughter-in-law was deemed a violation of Article 12, leading to an amendment of the Marriage Act 1949.

Answer 57

Article 13 provides: - The right to an effective remedy before national authorities for violations of rights under the Convention. - This right ensures that individuals have access to judicial recourse if their rights as outlined in the ECHR are infringed, thereby promoting accountability and protection of rights.

Answer 58

Article 14 requires: - That all rights and freedoms set out in the ECHR must be protected and applied without discrimination on grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, or other status. - The protection against discrimination is not ‘free-standing’; a victim must show that the discrimination has affected their enjoyment of one or more rights in the Convention. Article 14 covers both direct and indirect discrimination, ensuring comprehensive protection against unequal treatment.

Answer 59

Article 1 guarantees: - The right to peaceful enjoyment of possessions, covering both land (realty) and personal property. - 'Peaceful enjoyment' suggests a wide range of situations, but only interferences that affect the financial value of property will engage this right. For example, noise nuisance will interfere with peaceful enjoyment only if it reduces property value. - Public authorities can deprive individuals of property or restrict usage only if they can show that their actions are lawful and necessary for public interest. - Deprivation will not be considered in the public interest unless compensation is provided to the owner. - A fair balance must be struck between the interests of property owners and society. For instance, in cases of compulsory purchase for public purposes, authorities must ensure compensation reflects the property’s value. - This right does not prevent public authorities from enforcing taxes or fines.

Answer 60

The right to education, ensuring no person shall be denied this right. The state must respect parents' rights to ensure education aligns with their religious and philosophical convictions. The ECtHR in Belgian Linguistic (1968) identified the rights under this Article as: - The right to access existing educational institutions without requiring the government to provide any specific type of education. - The right to official recognition of completed studies. Schools may use objective and reasonable admission policies. While parents have rights regarding their children's education, this is not absolute; states can determine school curricula as long as they respect objectivity and pluralism. Exclusions of pupils for disruptive behaviour have been challenged under this right, but the ECtHR in Ali v United Kingdom (2011) confirmed that disciplinary measures, including expulsion, are lawful if they are foreseeable, pursue a legitimate aim, and are proportionate. States must ensure alternative education for permanently excluded pupils of school-going age.

Answer 61

Article 3 requires: - States to hold free elections at reasonable intervals via secret ballot. - The right to free elections is absolute and cannot be restricted, though governments have a margin of appreciation in determining the electoral system (e.g., 'first past the post' or proportional representation). - In the UK, prisoners serving custodial sentences do not have the right to vote. The ECtHR ruled in Hirst v UK (No 2) (2005) that a blanket ban on all serving prisoners violated this Article. - The UK Government later agreed to allow prisoners released on temporary licence or home detention curfew to vote, which the Council of Europe accepted as sufficient compliance with the ECtHR’s judgment.

Answer 62

Article 1 provides: - The death penalty shall be abolished, including for crimes committed during war or when the threat of war is imminent. - The UK ratified this Protocol in 2002, thereby committing to the abolition of capital punishment in all circumstances.

Answer 63

**Absolute rights** are rights that cannot be limited or interfered with under any circumstances, even if strong public interest arguments were to exist. Article 2, the right to life, is an absolute right. However, there are exceptions that define its scope and if one of the exceptions exists, then there is no interference with this right. For example, if the police kill an armed person to prevent the murder of innocent people, then Article 2 is not engaged provided the police have used no more force than absolutely necessary. **Limited rights** can be restricted in certain circumstances as specified in the relevant Article of the ECHR. For example, Article 5, the right to liberty and security of the person, can be limited if a person is convicted and sentenced to prison. They are similar to absolute rights in the sense that, unlike qualified rights, they cannot be ‘balanced’ against the rights of other individuals or the public interest. **Qualified rights** may be interfered with in order to protect the rights of another or the wider public interest, eg Article 8, the right to private and family life. For example the state can interfere with a person’s private life on grounds of national security provided the interference is prescribed by law, necessary in a democratic society and proportionate. UK courts use the text in the Bank Mellat case to evaluate proportionality