HRs Article 2,3,5&6

Question 1

What type of right is article 2 - right to life?

Answer 1

Limited right

Question 2

What is the test on how a state can take a life and intervene with article 2 - right to life?

Answer 2

Use of force which is no more than absolutely necessary

Show the degree of force was proportionate to achieve the legitimate aim of protecting person B

Question 3

What type of obligations are placed on the state in respect of article 2 - right to life?

Answer 3

There is a:
Positive obligation = to preserve or protect life
negative obligation = to refrain from killing
Investigate deaths where the state is involved

Question 4

Is there an obligation placed on the state to protect life from actions of third parties?

Answer 4

Yes there is under article 2 (if the state knew or ought to have know that there was a real and imminent risk to life but failed to take appropriate measures)

Question 5

What obligations are placed on the state in regards to article 3 - prohibition of torture? (And are they absolute)

Answer 5

Negative duty - absolute
Positive duty - limited

Question 6

Does the state have a duty under article 3 to protect individuals from non-state actors?

Answer 6

Yes they do - article 3 can be extended in situations where non-state actors could cause mistreatment under article 3

Question 7

What is refoulement?

Answer 7

The forceable return of refugees or asylum seekers to their home country or another where they are at risk of persecution and danger

Question 8

What does article 5 ECHR provide?

Answer 8

Right to liberty and security of a person

Question 9

What type of right is article 5?

Answer 9

It is a limited right

Question 10

Does kettling amount to a breach in article 5?

Answer 10

Held to be no in Kettering as the crowd measure was used to avoid real risk of serious injury or damage to property

Question 11

Are control orders a breach of article 5 right?

Answer 11

Not sufficiently restrictive to a deprivation of liberty but regard should be had on the degree of restraint on the physical confinement

Question 12

How can article 5 be interfered with?

Answer 12

Prescribed by law (interference has some basis in national law)
And Sunday times qualities:
- law must be adequately accessible
- sufficient precision to enable citizen to regulate his conduct = able to foresee that it is reasonable that consequences which a given action may entail

Question 13

What are the Sunday times qualities that can be used to show that an interference with article 5 is prescribed by law?

Answer 13

• law must be adequately accessible
• sufficient precision to enable citizen to regulate his conduct = able to foresee that it is reasonable that consequences which a given action may entail

Question 14

What are the justified limitations that allow for interference with article 5? (In terms of arrest and detained)

Answer 14

• reasonable suspicion of having committed an offence
• reasonably considered necessary to prevent committing an offence or fleeing after done so

Question 15

What does article 5(2) provide?

Answer 15

Governs the right for a person to be informed of the reason of their arrest in a language they understand

Question 16

What does article 5(3) say in terms of length of detention?

Answer 16

Must be brought promptly before a judge

Question 17

What is the maximum period for detention under article 5(3)?

Answer 17

Max period of detention is 4 days

Question 18

If detention is a preventative detention - how does this effect the promptness requirement?

Answer 18

The preventative detention needs to be a matter of hours rather than days

Question 19

What does article 5(4) say about the lawfulness of ongoing detention? (How long should intervals be?)

Answer 19

Intervals of more than 1 year are generally not treated as reasonable

Question 20

Who must review the lawfulness of ongoing detention under article 5(4)?

Answer 20

By courts and also other bodies of judicial character

Question 21

When can a person use their article 5(5) right to compensation?

Answer 21

If they take their case to the ECtHR in Strasbourg then that is when they can get compensation under article 5(5) otherwise s8 HRA allows it as a remedy in UK domestic courts

Question 22

Is this a breach of article 5 “if arresting authority doesn’t immediately inform the individual of the reason of their arrest but in course of subsequent questioning, the reasons for the persons arrest with reference to specific offences becomes sufficiently clear within a reasonable time period”?

Answer 22

No this is not a breach - this is lawful

Question 23

If a person is arrested and questioned for an offence but doesn’t receive legal advice and is subsequently not charged with an offence - can they argue there is conflict with their article 6 right?

Answer 23

No because article 6 is contingent on an applicant being charged with an offence
(Right to fair trial = no trial if no charge of an offence)