HRA: 2, 3, 5 and 6

Question 1

Al-Skeini v UK

Answer 1

Ratio: The duty to investigate the circumstances of a person’s death extends abroad where the state has taken life there.

Question 2

Jordan v UK

Answer 2

Ratio: Investigations into deaths must be proper and effective.

Question 3

Kelly and Others v UK

Answer 3

Ratio: Art 2 creates a positive obligation to investigate deaths.

Facts: IRA attack was ambushed by the Royal Ulster Constabulary and nine men were killed.

Question 4

McCann, Farrell and Savage v UK

Answer 4

Ratio: Generally, the actions of individual soldiers will not breach Art 2 if following orders. However, if the operation is poorly commanded or planned this may be a breach.

Facts: An IRA team suspected of planning a bombing were killed in Gibraltar by SAS services when they reached for what the soldiers mistakenly believed were detonators.

Question 5

NHS Trust A v M

Answer 5

Ratio: Withdrawing treatment from someone in a permanent vegetative state is not a breach of Art 2.

Question 6

Osman v UK

Answer 6

Ratio: State can be under a positive obligation to safeguard life.

Facts: A schoolteacher became obsessed with a pupil and his family. The family repeatedly warned the police but they failed to intervene. The teacher shot the boy’s father and attacked the son. Note that no obligation was actually found in this case.

Question 7

R (Amin) v SoS Home Dept

Answer 7

Ratio: Investigations into deaths must be thorough, independent and, if possible, involve the families of the deceased.

Facts: An Asian prisoner was placed in a cell with a known racist who later killed him. The investigation into his death was wholly inadequate and so breached Art 2.

Question 8

R v DPP ex p Pretty

Answer 8

Ratio: Article 2 does not contain an implied right to die.

Facts: Pretty, who was suffering from MND, sought an undertaking from the DPP that her husband would not be prosecuted for assisting in her suicide. The DPP refused to give one.

Question 9

Rabone v Penine NHS Trust

Answer 9

Ratio: State is under a positive obligation to safeguard life. In the case of psychiatric patients this can mean a duty to ‘take reasonable steps to protect [patients] from [a] real and immediate risk of suicide’.

Facts: A suicidal woman was released for home leave despite her family’s concerns. She killed herself whilst on leave.

Question 10

Shanaghan v UK

Answer 10

Ratio: Article 2 imposes a duty to investigate deaths independently and effectively.

Facts: A Sinn Feinn member was shot dead and the consequent investigation was deemed unsatisfactory.

Question 11

Smith, Allbutt and Ellis v MoD

Answer 11

Ratio: Soldiers serving abroad are under jurisdiction of HRA.

Facts: Estates of soldiers killed in Iraq argued that the MoD were responsible for failing to provide sufficient protection or equipment.

Question 12

Askoy v Turkey

Answer 12

Ratio: Torture is something intentionally cruel and violent - e.g. being stripped, hands tied above head and electrocuted.

Question 13

Aydın v Turkey

Answer 13

Ratio: Torture is something intentionally cruel and violent - e.g. being raped, beaten, stripped and sprayed with high pressure water.

Question 14

Chahal v UK

Answer 14

Ratio: 1. Article 3 applies regardless of the conduct of the individual. 2. If there is a risk of torture/IDT at the hands of third parties upon deportation that the State has been shown incapable of preventing, deportation may be in breach of Art 3.

Facts: An Indian Sikh appealed against a deportation order on the basis that he was at risk from the Punjabi Police a corrupt police force in India. The appeal was allowed because he was at real risk of torture.

Question 15

Ireland v UK

Answer 15

Ratio: Sleep deprivation, wall-standing, hooding, subjection to noise and deprivation of food are all IDT not torture.

Question 16

N v SoS Home Dept

Answer 16

Ratio: Expensive medical treatment in country of deportation does not mean the deportation is a breach of Art 3.

Facts: A Ugandan asylum seeker with AIDS appealed against her deportation on the basis that treatment would be too expensive in Uganda.

Question 17

Napier v Scottish Ministers

Answer 17

Ratio: Insanitary prison conditions can amount to IDT.

Facts: an open toilet and the practice of ‘slopping out’ exacerbated a prisoner’s eczema.

Question 18

Peers v Greece

Answer 18

Ratio: Cramped prison conditions can be IDT.

Facts: Prisoner in Greece was subject to long periods in his cell, which had no window or ventilation, in very hot temperatures and had to share open toilet facilities with a cell mate.

Question 19

R (Bagdanavicius) v SoS Home Dept

Answer 19

Ratio: Fear of IDT from a 3rd party upon deportation is not sufficient to engage Art 3 unless there is evidence that the State cannot protect the individual.

Facts: An individual appealed against the decision to deport him to Romania on the basis that he was under threat from certain individuals. The appeal was not allowed.

Question 20

R (Q) v SoS Home Dept

Answer 20

Ratio: State has a positive duty under Art 3 to prevent IDT or torture being carried out in other states.

Question 21

R (Spinks) v SoS Home Dept

Answer 21

Ratio: Receiving treatment for cancer in prison, rather than hospital, is not IDT.

Question 22

SH v UK

Answer 22

Ratio: States have a positive obligation not to deport individuals to countries where there is a high degree of probability that they will be subject to IDT/torture.

Question 23

Soering v UK

Answer 23

Ratio: Death Row amounts to IDT.

Question 24

Torreggiani v Italy

Answer 24

Ratio: Overcrowding in a prison can be IDT.

Question 25

Vinter, Bamber and Moore v UK

Answer 25

Ratio: Life sentences without opportunity for review = IDT.
Note: the Court of Appeal refused to follow this ruling in R v McLoughlin.

Question 26

Austin v UK

Answer 26

Ratio: Kettling is not unlawful if proportionate.

Facts: Applicant was kettled for 7 and a half hours during a demonstration on Oxford Street.

Question 27

Brogan v UK

Answer 27

Ratio: 4 days and 6 hours without being brought before a judge is too long.

Question 28

Fox, Campbell and Hartley v UK

Answer 28

Ratio: 1. Arresting someone on ‘suspicion’ of having committed an offence means ‘reasonable suspicion’ which is an objective standard. 2. It is not necessary to provide an individual for the full reasons of their arrest if it becomes apparent on questioning.

Question 29

Guzzardi v Italy

Answer 29

Ratio: A deprivation of liberty is determined by the degree or intensity of confinement.

Facts: An alleged member of the Italian mafia was confined to a small island under strict conditions and had to repeatedly report to police - deprivation.

Question 30

Hirst v UK

Answer 30

Ratio: A delay of 21 months in reviewing the detainees’ application was too long and a breach of Art 5(4).

Question 31

Johnson v UK

Answer 31

Ratio: In mental health cases the state has a particularly high duty to discharge.

Facts: A mental patient was detained following successful treatment as there were no appropriate facilities for him to be released to. This was held to be unlawful as there were inadequate safeguards preventing against unreasonable delay.

Question 32

Margaret Murray v UK

Answer 32

Ratio: The reasonable suspicion required for arrest is a lower threshold than that required for conviction.

Question 33

R (McClure and Moos) v Commissioner of Police of the Metropolis

Answer 33

Ratio: Ketting will be a deprivation of liberty if not proportionate.

Facts: Police kettled a small, peaceful climate camp in London where there was no threat of rioting.

Question 34

R (Saadi) v SoS Home Dept

Answer 34

Ratio: An asylum seeker can be lawfully detained whilst the authorities decide whether to grant asylum as long as the conditions in which he is held are reasonable and it does not take an unreasonable amount of time to make the decision.

Question 35

Re JJ

Answer 35

Ratio: A control order imposing an 18 hour a day curfew was a deprivation of liberty.

Question 36

SoS Home Dept v AF

Answer 36

Ratio: A person subject to deprivation of liberty is entitled to sufficient information to allow him to understand why he has been detained and to allow him to challenge his detention. This level is required even if the material relates to national security.

Question 37

SoS Home Dept v E

Answer 37

Ratio: Curfew of 12 hours imposed by control order was not an unlawful deprivation of liberty.

Question 38

Serdar Mohammed v MoD; Al-Waheed v MoD

Answer 38

Ratio: British forces have the legal power to detain individuals in non-international armed conflict for periods exceeding 96 hours if necessary for reasons of imperative security. However, MoD must provide safeguards to prevent the detention becoming arbitrary.

Facts: various individuals were unlawfully detained in Iraq and Afghanistan by British Forces.

Question 39

Airey v Ireland

Answer 39

Ratio: There must be effective access to justice.

Facts: An Irish woman was unable to find a lawyer to represent her in divorce proceedings and the state would not give her one. This was held to be unlawful as it presented access to justice. Note that providing free legal representation is not the only way effective access to justice can be provided.

Question 40

Al-Khawaja and Tahery v UK

Answer 40

Ratio: Convictions based solely on evidence from an absent witness will be allowed if sufficient safeguards are in place.

Facts: Tahery’s Art 6 rights were breached as his conviction had been based almost exclusively on a statement from an absent witness. Al-Khawaja’s were not because there was other evidence in addition to that given by an absent witness.

Question 41

Benham v UK

Answer 41

Ratio: Where the deprivation of liberty is it stake there is a right to free legal representation.

Question 42

Brennan v UK

Answer 42

Ratio: The presence of a police officer during a suspect’s consultation with his lawyer is likely to be an infringement of Art 6(3)(c).

Facts: Police officer remained within earshot while Brennan spoke with his solicitor.

Question 43

Condron v UK

Answer 43

Ratio: Adverse inferences should only be drawn from a defendant’s silence if the court is sufficiently satisfied that it is appropriate to do so. It should be considered whether there is an alternative explanation.

Facts: Two heroin addicts were advised by their solicitor to remain silent as they were on a comedown.

Question 44

HM Advocate v JK

Answer 44

Ratio: A delay of 27 months between charge and trial was unreasonable for a case concerning a 14 year old boy accused of sex offences.

Question 45

John Murray v UK

Answer 45

Ratio: 1. It is unlawful to deny access to legal advice - Art 6(1)/Art 6(3)(c) - except in certain situations. 2. Art 6 rights may extend to pre-trial situations - e.g. post-arrest questioning. 3. The right to silence is not absolute and adverse inferences may be drawn.

Question 46

Magee v UK

Answer 46

Ratio: 1. It is unlawful to deny access to legal advice - Art 6(1)/Art 6(3)(c)

Question 47

McGonnell v UK

Answer 47

Ratio: The courts must be impartial.

Facts: The same people sat on both the original planning board and the appeal planning board. This was not appropriate.

Question 48

Othman v UK

Answer 48

Ratio: An individual cannot be deported to a country where there is a real risk that evidence abstracted through torture will be used against them at trial.

Question 49

R (Gudanaviciene) v Director of Legal Aid Casework

Answer 49

Ratio: Where an unrepresented litigant in person would be disadvantaged the court should give special consideration to whether they should be provided with free legal advice.

Question 50

R v Horncastle

Answer 50

Ratio: Possible to convict on basis of hearsay evidence.

Question 51

R v Stow

Answer 51

Ratio: Courts must be impartial

Facts: Military court prosecutor was not impartial.

Question 52

Saunders v UK

Answer 52

Ratio: A defendant cannot be convicted on the basis information obtained under compulsion.

Facts: Saunders was compelled to answer questions as part of an investigation into him. These answers were then later used as evidence against him at trial.