Human Rights Flashcards
Entick v Carrington [1765]
Traditionally we relied on the judges to protect our civil liberties when developing the common law. Established common law position – Government of the day must act within the law. Courts will protect our freedoms and civil liberties.
The European Convention on Human Rights (ECHR)
- European convention for the Protection of Fundamental Rights and Fundamental Freedoms 1950
- Enacted by the council of Europe.
- Based on the Universal Declaration of Human Rights
- Came into force September 3rd 1953.
The council of Europe
- At the time - representatives of 25 European states.
- Today - 46 member states.
- Cooperate on issues of human rights, democracy and the rule of law.
European Court of Human Rights
Oversees the convention - hears cases against individual states by other states and by their citizens.
Principles of interpretation: “Living instrument”
- Eg, Article 3
- Definition of torture has changed over the years.
Principles of interpretation: “object and purpose.”
- To protect individual rights
- Court will look behind the exact words used and look at the purpose behind them
- Eg, Article 2 - right to life.
Principles of interpretation: “practical and effective.”
- ECtHR may read words in
- Eg, Article 2 - Right to life
- Eg, Article 6 - Right to a fair trial.
Principles of interpretation: “Margin of appreciation.”
- State given some freedom to regulate its own activities
- Why? Some rights politically sensitive, or involve religious/cultural/moral/ethical issues where there is a diversity of traditions
Convention rights: Article 2 - Right to life
- Everyones right to life shall be protected by the law.
Right to life continued:
- Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) In defence of any person from unlawful violence;
(b) In order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) In action lawfully taken for the purpose of quelling a riot or insurrection.
McCann v UK [1996]
- Shooting of IRA suspects by SAS officers.
- Alleged breach of Art 2
- UK Government argued shootings necessary to protect the lives of others(believed bomb about to be detonated by suspects)
- ECtHR held that the shootings were not absolutely necessary as required by Art. 2
Convention rights, Article 2 - Duty to investigate suspicious deaths:
Article 2 used by the families of the victims of the Hillsborough disaster to get inquest into the deaths.
Convention rights, Article 2 - Duty to protect lives: Osman v UK [1999]
Wife and son of deceased brought a claim under Art 2 after state failed to protect husband/father who was murdered by teacher of the son who had been stalking the family.
Convention rights, Article 3 - Freedom from torture, inhumane and degrading treatment
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Ireland v UK [1978]: Torture:
Deliberate inhumane treatment causing very serious and cruel suffering.
Ireland v UK [1978]: Inhuman treatment:
Would cause intense physical and mental or psychiatric suffering.
Ireland v UK [1978]: Degrading treatment:
Behaviour that would arouse in the victim feelings of fear, anguish and inferiority capable of humiliating or taking away one’s physical or moral resistance.
Tyrer v UK [1978]
Birching held to be degrading treatment.
Chahal v UK [1997]
State may have positive obligation not to put someone in a position where they may be subject to treatment which breaches Art 3.
UK under obligation not to deport Chahal to country where likely to be tortured.
Convention rights: Article 3 - The Rwanda Policy
- Government plan to send asylum seekers to Rwanda to have applications processed there.
- Is Rwanda a safe country?
- R (on the application of AAA & Others) v Secretary of State for the Home Department [2023] UKSC 42
- Contrary to Article 3 – deficiencies in Rwanda’s asylum system meant that real risk that asylum seekers might be returned to their home country where they might be subjected to torture or inhuman or degrading treatment
Convention rights, Article 5 - Right to Liberty and Security
- Everyone has the right to liberty and security of person. No one shall be deprived of his liberty.
There are however 6 exceptions when can be deprived of liberty.
6 Exceptions to the right to liberty:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
Article 5 - The judicial process
Everyone arrested to be informed promptly, and in a language they understand, of the reasons for arrest and of any change.
Article 5(3)(re Art 5(1)(c) detention)
Everyone arrested to be brought promptly before a judge.
