HRA 1998-Articles 2, 3, 5 & 6 Flashcards
What right does Article 2 HRA 1998 provide for?
Right to life-no one shall be deprived of his life intentionally save in the execution of a sentence of a Court following his conviction of a crime for which this penalty is provided by law.
What are the limitations on Article 2-right to life?
When the deprivation of life results from the use of force which is no more than absolutely necessary e.g. self-defence
Describe the Death on the Rocks case (1996) in relation to Article 2.
Brought by three alleged IRA members shot dead in Gibraltar by the SAS
There was little warnings to the persons who were killed, and no effort to capture them alive. The UK claimed that the deceased were about to detonate a bomb therefore the killings were a proportionate response.
No violation of Article 2 found but ECtHR did find a violation in relation to the lack of care exercised by the UK-duty of command, control and training was established.
What is the investigative duty under Article 2 and does this extend to third party situations?
Article 2 has been interpreted as imposing a duty on the state to investigate all situations in which the state directly takes a life.
This does extend to third party situations, for example in R (Amin) v SoS for the Home Department (2003) where the deceased was murdered by his cellmate for racially motivated reasons. The investigation was not public and independent and did not involve the deceased’s family therefore it represented a violation of article 2.
What is the approach to assisted suicide cases brought under Article 2?
The Courts have to apply a balance between the wishes of the person not to have to die in ‘inhuman and degrading’ circumstances and the state’s obligation to do what is reasonable to preserve life.
What right does Article 3 HRA 1998 provide for?
No one shall be subject to torture or to inhumane or degrading treatment or punishment.
This is an absolute right.
What is the standard of inhuman and degrading treatment under Article 3?
The standard of what constitutes inhuman and degrading treatment is set at a high level, only serious-ill treatment or neglect falls within its scope.
What is the definition of torture under Article 3?
Torture is an aggravated, deliberate and cruel form of treatment or punishment.
Will psychological techniques be classified as torture or inhuman and degrading treatment under Article 3?
There is a reluctance to classify psychological techniques as torture, as seen in Ireland v UK (1979).
Is there a positive obligation on the state under Article 3?
Yes, Article 3 imposes a positive duty on public authorities to take actions to prevent individuals being subjected to torture and/or inhuman or degrading treatment at the hands of others however this positive obligation is not absolute.
What important principle did the case of Soering v UK (1989)?
The case established that the ECHR has extraterritorial validity, and that a state’s actions can engage its responsibility if they produce effects outside its territory. The case also established that a state’s decision to extradite someone can trigger its responsibility under the ECHR if there is a risk that the person will be ill-treated.
Is there an investigative duty under Article 3?
Yes, as seen in the Worboys case where the Supreme Court found that there had been a breach of the police’s obligation to conduct an effective investigation into the crimes committed by the former taxi-driver, John Worboys.
What right does Article 5(1) HRA 1998 provide for?
No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.
What is kettling and does it provide a limitation to Article 5(1)?
Kettling involves placing a cordon around a crowd in order to confine it to a specific area, sometimes for several hours.
Austin v UK (2012): held that such measures would not be considered a deprivation of liberty so long as they are proportionate and not imposed arbitrarily.
What two conditions must be satisfied to ensure that a deprivation of liberty will not constitute a violation of Article 5(1)?
- The deprivation must have been prescribed by law-the interference must have some basis in national law and have certain qualities, such as adequate accessibility and sufficient precision/safeguards.
- The deprivation must be justified by one of the limitations provided in Article 5(1) (a)-(f), particularly (c) which states that a person may be deprived of their liberty where that person is being lawfully arrested and detained.
