HR II - Articles 2,3,5,6 - Consolidation MCQs Flashcards
You are acting for a new client whose daughter was killed by armed police. She was a member of the group, ‘Arm4Rights’, which presents itself as a peaceful lobbying organisation, campaigning for an end to the UK’s sale of arms to foreign regimes with poor human rights records. The police say that Arm4Rights is a militant organisation and claim they had credible intelligence that the group intended to attack the Foreign Secretary.
She attended a Members of Arm4Rights demonstration outside the Foreign Office. As the Foreign Secretary left to get into a waiting car, your client’s sister waved a toy gun in the air as she and the other Arm4Rights members chanted: ‘Feel a British bullet!’ Because of the noise, she did not hear warnings from armed police to ‘put down your gun’, and she was shot and killed.
Your client has now been told that the matter has been closed because the police officer in charge of policing the demonstration had investigated the incident and concluded that there was no fault on the part of the police. Your client wants to know if there is anything he can do to challenge the authorities over his daughter’s death.
Which one of the following represents the best advice to your client on the prospects of bringing an action in relation to article 2 ECHR?
Since the police action was to defend the Foreign Secretary from unlawful violence, the state action in this case is justified. However, it appears that the state has failed to fully comply with its investigatory duties in this case.
The state has a duty under article 2 to refrain from using lethal force except in very particular circumstances. The police are likely to argue that it was absolutely necessary to use such force in this situation in order to protect the Foreign Secretary from unlawful violence. Your client may have a reasonably strong argument that the state has failed in its investigative duty under article 2.
The state has a duty under article 2 to refrain from killing. However, it is very likely that the police could justify having done so as your client’s daughter was behaving in an alarming way. The matter has been investigated and therefore the state has complied with its obligations under Article 2.
The state has a duty under article 2 to refrain from killing. As this is an absolute right, given the sanctity of life, there is a very strong case to put forward that there was a breach of article 2.
Where an incident involves a death at the hands of the police, the courts will be very cautious about intervening. The only relevant consideration for the court will be whether the police have complied with the investigatory obligation under Art 2 and there appears to be no issue about that on these facts.
The state has a duty under article 2 to refrain from using lethal force except in very particular circumstances. The police are likely to argue that it was absolutely necessary to use such force in this situation in order to protect the Foreign Secretary from unlawful violence. Your client may have a reasonably strong argument that the state has failed in its investigative duty under article 2.
Correct. This answer best reflects the law under article 2 and the likely merits of the client’s case. The police could argue that they were justified in taking life in this situation, but your client is likely to be able to successfully argue that the state has failed in its investigative duty. The investigation must be public, independent and involve the full participation of the family. At least two of these requirements appear to have been breached. Refer to the case of R (Amin).
On arrival at Gatwick Airport, your clients – a mother with two boys aged 13 and 16 –applied for asylum in the UK. After an initial period of assessment by the National Asylum Support Service (‘NASS’), the family were ‘dispersed’ to a UK city around 250 miles away pending a decision on their asylum application. They are housed by NASS in temporary local authority accommodation in a large block of flats in poor condition. Within a few weeks, the family began to complain of sustained harassment and threats by two other families in the same block. This harassment, which includes damage to the outside of their flat and severe noise disturbance, is based on the family’s nationality and ethnicity. A local gang tried to recruit the 16-year-old but he refused to be associated with it. You have now heard that he has been stabbed by another pupil at his school. The family are very anxious and wish to be moved.
Which of the following represents the best legal advice based on article 3 of the ECHR?
You explain to the family that, although the harassment is very unfortunate and must be reported to the police, there is no obligation here on NASS or the local authority to move the family, as the only form of positive obligation falling on states is in relation to attempts to deport or extradite people to countries which expose them to risk of torture or inhuman and degrading treatment in those countries.
You explain to the family that, although the harassment is very unfortunate and must be reported to the police, there is no obligation here on NASS or the local authority to move the family, as the alleged harm to them has been brought about by third parties. As there is no liability on a public authority, it will not be possible to take action under the HRA in relation to article 3.
Incorrect. This is incorrect in two respects. Firstly, because it ignores the possible application of the positive obligation on public authorities/ the state to do all that is reasonably possible to prevent ‘article 3’ mistreatment at the hands of third parties. Secondly, it wrongly refers just to ‘torture’ in relation to the degree of mistreatment caused and doesn’t address the lower level of ‘inhuman and degrading treatment’ under article 3, which is far more common in practice and could be relevant in this case.
You explain to the family that NASS as a public authority has a positive obligation on it to take reasonable measures to prevent people under its care from being exposed to the risk of inhuman and degrading treatment at the hands of third parties. This is not an absolute duty but, if the extent of the harm to the family reaches this threshold, article 3 will be engaged and, if NASS had actual or constructive knowledge of what was happening, legal action on the basis of article 3 could result in an order that the family be moved to more suitable accommodation.
You explain to the family that, although the harassment is very unfortunate and must be reported to the police, the seriousness of the harm to them is not sufficient for article 3 to be engaged, because the definition of torture requires sustained and systematic violence. They will therefore have no remedy under the HRA in relation to the ECHR.
You explain to the family that NASS as a public authority has a positive obligation on it to take reasonable measures to prevent people under its care from being exposed to the risk of inhuman and degrading treatment at the hands of third parties. This is not an absolute duty but, if the extent of the harm to the family reaches this threshold, article 3 will be engaged and, if NASS had actual or constructive knowledge of what was happening, legal action on the basis of article 3 could result in an order that the family be moved to more suitable accommodation.
Correct. This is the best answer as it explains the operation of the positive obligation in this kind of context.
A ‘deprivation of liberty’ is required in order to engage article 5(1), ECHR. Which of the following statements best reflects the approach and principles of the ECtHR when determining whether there has been a deprivation?
In assessing whether measures amount to a deprivation of liberty the court will primarily consider the degree of physical resistance put up by the affected parties.
There is a presumption, when measures taken do not involve a formal arrest, that article 5(1) protection is not engaged at all.
The starting point should be to consider the concrete situation of the person who is subject to the measures that limit their liability, before concentrating on how long the measures were applied for.
The approach of the court in assessing whether measures amount to a deprivation of liberty is to ask whether the measures in question are a proportionate means of achieving the state’s aims.
The starting point should be to consider the concrete situation of the person who is subject to the measures that limit their liberty. Whether these measures amount to a deprivation rather than a restriction will depend upon the degree of their intensity. Relevant factors to this assessment include the type, duration, effects, and manner of implementation of the measure in question.
The starting point should be to consider the concrete situation of the person who is subject to the measures that limit their liberty. Whether these measures amount to a deprivation rather than a restriction will depend upon the degree of their intensity. Relevant factors to this assessment include the type, duration, effects, and manner of implementation of the measure in question.
Your client was recently arrested on suspicion of having been involved in an overnight break-in at a pharmacist’s shop.
He was arrested on the basis of intelligence information the following morning and taken to the local police station at 10am (on a Monday). He was then interviewed on several occasions over the period of the next 3 days. He was finally released from police custody at midday on the Thursday without charge, once the police had completed all their investigations.
Which of the following represents the best advice to your client on the prospects of bringing an action in relation to article 5(3) ECHR?
There was a clear breach of article 5(3) in this situation as any extension of custody in excess of the basic time limit of 24 hours allowable under the Police and Criminal Evidence Act (‘PACE’) will not be seen as compatible with the standard in the ECHR.
Your client would have a reasonably strong case that there had been a violation of his article 5(3) right. Even though the ECtHR has accepted that the police may in some situations detain a suspect in custody for up to four days, shorter periods can still be seen as incompatible, depending on the context of the case. It is unlikely in this context, involving a significant but not a violent, armed or terrorism-related crime, that a court would accept that a detention of 74 hours without any form of judicial oversight was justified.
There would have been no breach of article 5(3) in this situation as the ECtHR has specifically approved detentions by the police for any period up to 4 days. This was the relevant period of custody in the leading case of McKay v UK and so the same precedent would apply in this case.
Your client would have an arguable but not particularly strong case that there had been a violation of his article 5(3) right. Even though the ECtHR has accepted that the police may in some situations detain a suspect in custody for up to four days, shorter periods can still be seen as incompatible, depending on the context of the case. As the suspected offence is a serious one and the investigation appears to have been protracted, it is unlikely that 74 hours would be seen as excessive in terms of article 5(3).
There would have been no breach of article 5(3) in this situation as the ECtHR has approved detentions for up to 4 days maximum in police custody for all suspects, other than minors.
Your client would have a reasonably strong case that there had been a violation of his article 5(3) right. Even though the ECtHR has accepted that the police may in some situations detain a suspect in custody for up to four days, shorter periods can still be seen as incompatible, depending on the context of the case. It is unlikely in this context, involving a significant but not a violent, armed or terrorism-related crime, that a court would accept that a detention of 74 hours without any form of judicial oversight was justified.
Correct. This summarises the best advice. Refer to the case of McKay v UK in particular. Note in that case that a significantly shorter period - of 36 hours - was seen to fall within the art 5(3) right.
You are acting for a client who was arrested on suspicion of aggravated burglary. Following his arrest, he was detained at the police station for 24 hours and during this time he was questioned on three occasions. Your client repeatedly asked to see a legal representative, but this was refused, and a police officer told him, “You’ll just get some bent lawyer who will warn your gang that we’re onto them”. After the 24-hour period your client was released without charge. He now wishes to know if he can challenge the decision of the police not to allow him access to a lawyer.
Which of the following statements represents the most accurate advice to your client on the prospects of bringing an action in relation to article 6 ECHR?
The client cannot bring a legal challenge against the police on this basis, because following his arrest and detention he was not charged with an offence.
The client cannot challenge the decision of the police to deny him access to a lawyer because they provided a good reason as to why access was withheld.
The client can challenge the decision because everyone has the right to access free legal representation when they have been arrested.
The client cannot challenge the police’s decision to deny him access to a lawyer because there is no absolute right to legal representation.
There is good merit in challenging this decision under articles 6(1) and 6(3)(c) because the police’s justification for denying the client access to a lawyer did not amount to a good reason for doing so.
The client cannot bring a legal challenge against the police on this basis, because following his arrest and detention he was not charged with an offence.
Correct. In Murray v UK, the ECtHR clarified that article 6 can apply to the whole criminal process, including the pre-trial stage from the point of arrest. However, this is contingent upon the applicant being charged with an offence. On out facts, the client was released without charge and therefore, his article 6 rights were not engaged. The requirement for a charge to have made is clear in the wording of all three parts of article 6.
Article 7?
Article 7 provides that a person cannot be charged with a criminal offence for conduct that was not a crime when they committed it. This means that the state must clearly define what constitutes a criminal offence so people know when they are breaking the law. It is also a violation of Article 7 for the courts to impose a heavier penalty than was applicable at the time the offence was committed.
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.
Question 18
A non-UK national living in the UK has allegedly committed a serious crime in his country of origin. His country of origin is not a signatory to the European Convention on Human Rights (‘the Convention’).
The UK government has issued an order for the deportation of the man to his country of origin. However, the man asserts that evidence will be used against him in respect of the alleged crime which has been obtained by the use of torture. The man appeals under the Convention against the deportation order in the High Court and the High Court accepts the man’s assertion.
Which of the following best explains whether the High Court would uphold the deportation order?
A. It would not uphold the order because the Convention provides that member countries must secure the Convention rights for everyone within their jurisdiction.
B. It would not uphold the order because the merits of deportation decisions involving the human rights of nationals from non-signatory countries must be considered by the European Court of Human Rights.
C. It would uphold the order because the UK government is not responsible for how another sovereign state obtains evidence for use in criminal trials.
D. It would uphold the order because non-UK nationals do not benefit from UK human rights protection.
E. It would uphold the order because the man has allegedly committed a serious crime and the Convention is not intended to protect criminals.
A - It would not uphold the order because the Convention provides that member countries must secure the Convention rights for everyone within their jurisdiction.
