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Constitutional & Admin Law – Academic > Articles 2, 3, 5 and 6 > Flashcards

Articles 2, 3, 5 and 6 Flashcards

1
Q

What does Art 2 give the right to?

A

Life

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2
Q

What obligations does Article 2 contain on the state?

A
  1. Prohibits state from taking a life; and
  2. Places the state a positive duty to protect life
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3
Q

Is the death penalty allowed under Art 2?

A

Yes - has provision for the execution of a sentence of a court following conviction for crim for which execution is provided by law

But all signatory states have abolished

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4
Q

Is derogation allowed from Article 2?

A

Only in respect to deaths resulting from lawful acts of war

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5
Q

When will deprivation of life not be in contravention of Art 2?

A

If it results from the use of force which is no more than absolutely necessary:

  1. In defence of person from unlawful violence
  2. In order to effect a lawful arrest/prevent escape of lawfully detained person
  3. In action taken lawfully for purpose of quelling a riot or insurrection
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6
Q

Is Art 2 an absolute right?

(Rights that cannot be legitimately interfered with by the state)

A

No! Art 2 includes limits on the right to life (life can be taken for exceptional law enforcement purposes)

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7
Q

What must the state demonstrate if it takes a life?

A

That the use of force was no more than absolutely necessary; was proportionate

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8
Q

What is meant by ‘investigative duty’ re Art 2?

A

Art 2 also imposes on a state the duty to investigate all situations in which the state directly takes a life
* If proper investigation carried out = no need to invoke the article

Rationale: is primarily responsibility of state to investigate and remedy HR breaches

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9
Q

What developments have been made to the investigative duty by further case law?

A
  • Investigation/inquest must be fair to not violate Art 6 (right to fair legal process)
  • Extends extra-territorially (investigate deaths of Iraqi civillians by British soldiers where UK military had sufficient control at time of deaths)
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10
Q

Is an investigation does not lead to the prosecution of an individual, does that mean the investigative duty has not been fulfilled?

A

No - can still be a thorough investigation without a prosecution

Whether because of insufficient evidence re liability

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11
Q

Does the investigative duty apply in situations where a death is caused by a third party rather than by state agents?

A

Yes

Owing to state’s duty to protect life (esp those in custody!)

R (Amin) - state agent had placed inmate in a cell with a known violent racist who killed the inmate - investigation still had to happen (despite refusal of Home Office)

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12
Q

What does it mean for Art 2 to impose a positive obligation on the state to protect/preserve life?

A
  • Criminal justice systems that punish and deter homicide
  • Operational obligation to take preventative measures to protect individuals when life at risk from other individuals or from suicide
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13
Q

When will the operational obligation to take preventative measures apply?

A

Only if state authorities knew, or ought to have known, that there was a real and immediate risk to life but failed to take appropriate measures

Not very broad

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14
Q

Does the right to life apply re withdrawal of treatment?

I.e. does the withdrawal of treatment constitute a breach of Art 2?

A

No - state not considered to be under obligation to prolong life where the prognosis is so poor

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15
Q

What must courts balance in cases of assisted suicide re their positive obligation?

A
  1. The wishes of the person not to have to die in ‘inhuman/degrading’ circumstances and
  2. State’s obligation to do what is reasonable to preserve life
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16
Q

Is a blanket ban on assisted suicide proportionate to Article 8

A

Yes

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17
Q

Is the NHS in breach of Art 2 for negligent treatment leading to the death of a patient - specifically the suicide of someone released from psychiatric hospital?

Rabone

A

Yes - if the trust assumes responsibility and control over patient and there is a real risk they would take their life when allowed home

= failure to take reasonable steps to prevent real risk of suicide

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18
Q

What is position of embryos/feotuses wrt Art 2?

A

Article 2 does not protect embryos when one party withdraws his/her consent to implantation

Essentially embryos and feotuses have no right to life

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19
Q

Is Art 3 - the prohibition of torture - an absolute right?

A

Yes - no derogation permitted

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20
Q

What is the negative duty under Art 3?

A

No one shall be subject to torture or to inhuman or degrading treatment or punishment

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21
Q

What is the threshold for ‘inhuman and degrading treatment’?

A

High level - only serious ill-treatment and neglect falls within the scope

Depends on circumstances of the case

Relevant factors = nature and context of treatment, manner of execution, duration, physical and mental effects

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22
Q

How have torture and inhuman or degrading treatment been defined?

Ireland v UK

A
  1. Torture = deliberate inhuman treatment causing serious and cruel suffering
  2. Inhuman treatement = treatment or punishment likely to cause actual bodily injury or intense physical and mental suffering
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23
Q

Is the threshold for ‘torture’ higher than inhuman or degrading treatment?

A

Yes

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24
Q

Will psychological techniques classify as ‘torture’?

Ireland v UK - wall-standing, sleep deprivation, intense noise, hooding, withholding food

A

Will more likely classify as inhuman or degrading treatment (Ireland v UK)

Want to preserve the stigma of torture

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25
Q

Will physical abuse classify as torture?

Aksoy v Turkey - stripped naked, arms tied, electrodes attached to genitals, beaten at 2.5 hour intervals for 4 days

A

Yes

I.e. inhuman or degrading treatment is ‘lesser’ than torture

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26
Q

Can bad prison conditions amount to inhuman or degrading treatment?

E.g. Napier - detained applicant complained about lack of toilet facilities and small size of cell which exacerbated his facial eczema

A

Conditions of detention and effect on physical health can amount to degrading treatment and thus a brech of Art 3 (even on individual basis)

Napire - was impractical to move him and other prisoners endured similar conditions, but entitled for removal on individual basis (for eczema)

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27
Q

Will a state not giving compassionate leave to a cancer patient (to the effect of intefering with attendance for chemotherapy) amount to a breach of Art 3?

R (Spinks)

A

No - conduct on part of state must be of a serious and wholly unacceptable kind

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28
Q

Does the state have an obligation to ensure non-state actors (parents/guardians) do not punish children to a level where Art 3 will be invoked?

A

Yes

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29
Q

What is the positive obligation under Art 3?

A

To prevent individuals being subjected to torture and/or inhuman and degrading treatment/punishment at the hands of others

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30
Q

Is the positive duty under Art 3 absolute?

A

No - authorities must have known or ought to have known particular circumstances likely to expose individual to Art 3 ill-treatment

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31
Q

Does deportation conflict with Art 3?

A

No. Governments can deport people who are lawfully in the UK but not citizens if:
1. They’ve been convicted of a serious offence or
2. Their presence in UK is not conducive to public good

32
Q

Can the extradition of someone to a place where there is a real risk that they may be killed, tortured or mistreated be a violation of Art 2/3?

Soering

I.e. state sending individual to jurisdiction where there is a real risk they will suffer treatment contrary to the convention

A

Yes – of BOTH article 2 and 3

Soering – committed 2 murders in US and extradition to US would be in breach of Art 3 as he would spend time on death row awaiting execution, causing intense psychological suffering

33
Q

What if deportation would not result in death, but may lead to suffering of other forms of ill-treatment?

Eg: Chahal who was tortured by Punjabi police for his involvement in Sikh rights campaigns.

A

Would be unlawful under Art 3

34
Q

Does the positive duty under Art 3 extend to non-state actors?

I.e. must the state also prevent those who are not the state inflicting relevant kind of treatment on an individual

A

Yes

Even extra-territorially

E.g. Chahal - activist in UK custody showed that despite no sanction against him from Indian GOV, there was real risk of mistreatment from the Punjab Police (which the GOV would not intervene to protect him from)

35
Q

Is there also an investigative duty under Art 3, as with Art 2? Especially considering how a common law duty to investigate is not imposed on the police, for example

A

Yes - with police there is an operational duty to conduct a proper investigation

36
Q

What does Art 5 protect?

A

Right to liberty and security

37
Q

What is the difference between Art 5(1) and Art 5(2-5)

A
  • Art 5(1) = the basic, substantive right to liberty and circumstances in which state can lawfully deprive persons of their liberty
  • Art 5(2-5) = additional due process rights to which a detainee is entitled
38
Q

What are the 4 main ways in which individual’s right to liberty may be lawfully interfered with?

A
  1. Arrest and detention by the police
  2. Imprisonment after conviction
  3. Detention of the mentally ill in hospitals
  4. Detention of foreigners for asylum or deportation
39
Q

What does Art 5 require in relation to arrest and detention?

Arrest & detention = one of the lawful ways in which Art 5 can be breached

A
  1. Breach, or reasonably suspicion of breach, of a known law
  2. The giving of reasons for arrest and charge
  3. A prompt and fair trial
  4. Availability of JR and legality of detention
  5. Right to compensation for breach of Art 5
40
Q

What two conditions must be satisfied for a deprivation of liberty to not constitute a breach/violation of Art 5(1)?

A
  1. Deprivation must have been prescribed by law - Art 5(1)
  2. Must be justified by one of the limitations in Art 5(1)(a-f)

A sufficiently clear legal basis for deprivation

41
Q

Is Art 5 engaged when someone’s liberty is restricted?

A

No - only when someone is deprived of their liberty

42
Q

What is the difference between deprivation and restriction of liberty?

A

Difference is one of degree or intensity rather than nature or substance

Deprivation = detention in prison, strict arrest etc.

43
Q

Is kettling - confining a crowd to a specific area - a deprivation of liberty?

A

Not if measures are proportionate and not imposed arbitrarily

Police should be able to maintain order and protect public

44
Q

What does it mean for the deprivation of liberty to have to have been ‘prescribed by law’?

A

State must be able to point to a specific legal rule/regime which authorises conduct i.e. legislative provision or case law

I.e. does not have to be contained in statute!

45
Q

What certain qualities must the identified legal basis (prescribed law) have?

A
  • Adeqautely accessible
  • Formulated with sufficient precision to enable citizen to regulate his conduct
  • Must be able to foresee to a reasonable degree the consequences which a given action may entail

The Sunday Times test

I.e. need not be in statute

46
Q

Does the legal basis have to be absolutely clear and precise? Do the consequences have to be foreseeable with absolute certainty?

A

No - certainty is highly desirable but would require excessive rigidity

47
Q

How must the prescribed law afford protection against arbitrary interferences by public authorities?

How is unfettered power avoided?

A

The law must indicate with sufficient clarity the scope of any discretion conferred on competent authorities

E.g. Gillan and Quinton - stop and search powers that ultimately gave police the power to search people on the basis of a hunch (‘connection with terrorism’ were held to be accompanied by inadequate safeguards against arbitrary interference with rights

48
Q

Will discretionary stop and searches always be in contravention of HRA?

A

No - if combined with requirements of associated safeguards/law

E.g. Roberts - stop and search for 24 hours where reasonable belief of incidents of serious violence - combination of PACE with Equality Act ensured stronger safeguards

49
Q

What are the 2 limbs of Art 5(1)(c) - lawful deprivation of liberty where that person is being lawfully arrested and detained?

A
  1. Arrest and detention on reasonable suspicion of having committed an offence
  2. Arrest and detention when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so
50
Q

Will an arrest be contrary to Art 5(1) where it is carried out with suspicion of an offence on part of the police?

A

No - s5(1)(c) requires reasonable suspicion

51
Q

What is required for reasonable suspicion under Art 5(1)(c)?

A

Must be evidence of ‘facts or information’ which would satisfy an objective observer

Fox - not enough that two suspects had previous convictions for terrorism; no further material had been provided upon which a suspicion could be founded

52
Q

Is just suspicion okay for the second limb of Art 5(1)(c) (the prevention)?

A

No - also requires reasonable suspicion

53
Q

For the second limb of Art 5(1)(c) - the prevention of an offence - is short-term detention for the prevention of an offence permitted?

As opposed to being brought before a competent legal authority

A

Yes - short-term detention of a person is allowed for preventing a concrete and specific offence

Proportionate detention for preventative purpose before early release

E.g. Hicks - several people detained for 5 hours to prevent them causing a breach of peace by disrupting royal wedding

54
Q

Under Art 5(2), how should a person who is arrested be informed and what about?

A

Informed promptly in a language they understand of the reasons for their arrest and charge against them

55
Q

Does ‘informed promptly’ for reasons of their arrest mean specifically at time of being arrested?

A

Not necessarily - if subsequent questioning provides enough detail for arrested to understand their arrest, this would be in a reasonable timeframe

Fox - was told at time of arrest on suspicion of being a terrorist, but later in questioning more detail given - ok!

56
Q

Under s5(3), when must a person arrested and detained be brought before a judge?

A

Promptly

Keeps any unjustified interference w individual liberty to a minimum

57
Q

What does ‘promptly’ under Art 5(3) generally mean?

A

Hours rather than days (especially in absence of exceptional circumstances preventing authorities from bringing arrested in front of a judge sooner)

Longer time has been held incompatible w Art 5(3) in case law - even if tried to be justified on grounds of complex cases like terrorism

58
Q

What right has Art 5(4) - the lawfulness
of on-going detention - been held to give a detained person?

A

The right to review of the person’s ongoing detention

59
Q

What does the right of review mean for automatic periodic review?

A

Where automati periodic review is required by law - those decisions must follow at regular intervals

Intervals of more than 1 year are generally not reasonable

Maximum period in between reviews can be determined in light of the circumstances of each case

60
Q

When would Art 5(5) - the right of a victim of an Art 5 breach to compensation - come into play?

A

If an applicant needed ultimately to take their case to ECtHR

S8 HRA provides remedy in human rights cases determined in UK

61
Q

What are the three paragraphs for Art 6 - the right to a fair trial?

A
  • 6(1) - basic overarching right to a fair and pubic hearing within a reasonable time by independent/impartial tribunal (access to justice, impartiality of courts etc.)
  • 6(2) - the presumption of innocence
  • 6(3) - minimum rights owed to everyone charged with a criminal offence inc legal representation
62
Q

Why is it important that Art 6(1) only refers to a ‘hearing’?

A

It may not involve a ‘trial’ - the process in question must involve determination by an ‘independent and impartial tribunal established by law’

63
Q

Does effective access to the courts under Art 6(1) provide a general right to free legal aid?

A

No - what constituted effective access to courts depends on facts of each case. May sometimes be appropriate for applicants to represent themselves

May be a case of a simplified legal procedure/reduce complexity + cost

64
Q

What is more likely to constitute a denial of access to justice where there is no legal aid?

A

Where the severity of the penalty at stake is high and the case is complex (law hard to understand)

Benham - applicant imprisoned for non-payment of poll tax; could not afford legal rep, had no legal aid, and magistrates declined to use discretion to appoint solicitor

65
Q

What is meant by both ‘independent’ and ‘impartial’ re the courts under Art 6(1)?

A
  • Independence - regard had to manner of appointment, their term, guarantees against outside pressure
  • Impartiality - 1) subjectively free of personal prejudice/bias and 2) impartial from an objective viewpoint

McGonnell - judge in planning appeal also presided over adoption of the development plan in legislature

66
Q

What 3 factors will be considered in determining the appropriate standard for a ‘fair and public hearing within a reasonable time’ under Art 6(1)?

A
  1. Complexity of case
  2. Conduct of D
  3. Manner in which case dealt with by authorities

  • 20 months between police officers charged with perjury and trial = not exxessive (thorough investigation)
  • 27 months between teen boy being charged with sexual offences and trial = excessive (boy was young)
67
Q

Does the right to a fair legal process under Art 6(1) and 6(3) concern only the fairness of a trial?

A

No - can also apply to the preliminary investigation conducted by police

E.g. denied access to a lawyer = adverse inferences drawn from interview = unfair trial

68
Q

Does Art 6(3) - right to a fair trial - mean legal advice should never be restricted?

A

No - can where there is good reason for doing so

69
Q

What does Art 6 include but not expressly refer to?

A

Right to remain silent and right to not incriminate oneself

70
Q

Is the right to silence absolute?

A

No - adverse inferences can be drawn which will not violate ECHR

71
Q

When will Art 6 have extra-territorial application?

A

Where a person risks suffering a flagrant denial of a fair trial (in a state they will be extradited to)

72
Q

What does Article 4 prohibit?

A

Slavery and forced labour

73
Q

What types of work do not fall within the definition of Art 4?

A
  1. Work done by convicted prisoners as part of their sentence
  2. Compulsory military service
  3. Wrok required in emergency or calamities threatening the life/well-being of the community; and
  4. Anything within normal civic obligations
74
Q

How is slavery different from servitude?

A

Slavery = status or condition of a person over whom any or all powers attaching to the right of ownership are exercsed

Servitude = Obligation on the part of the person who is the ‘serf’ to live on a property of another, and an inability to change that condition

75
Q

What circumstances need to be considered for forced labour?

A
  1. Type of work involved
  2. Penalty or burden imposed if work not done
  3. Level of hardship or oppression which individual was subjected to
  4. Exploitation in some way

Constitutional & Admin Law – Academic (14 decks)

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