Human Rights

Question 1

what does article 2 state?

Answer 1

• Everyone’s right to life shall be protected by law. 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.
• Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is not 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.

Question 2

what type of right is article 2?

Answer 2

An Absolute Right:
the right to life is an absolute right in that it cannot derogated in peace time
however their are some expectations

Question 3

how is the burden of proof satisfied in article 2?

Answer 3

the applicant (C) must prove !beyond all reasonable doubt! that the state was responsible for the V’s death
However, if the victim dies or disappears in police custody the burden moves onto the state to provide a satisfactory explanation for the death or disappearance.

Question 4

what is the margin of appreciation and how does it help?

Answer 4

It refers to the space for manoeuvre that the Strasbourg organs are willing to grant national authorities, in fulfilling their obligations under the European Convention on Human Rights. It gives the flexibility needed to avoid damaging confrontations between the Court, and the Member States and enables the Court to balance the sovereignty of Member States with their obligations under the Convention

Question 5

How did the Evans v UK impact HR?

Answer 5

The ECtHR gave a wide margin of appreciation to the UK to regulate the use of frozen embryos without the consent of a father

Question 6

How did Paton v UK impact HR?

Answer 6

the Commission on Human Rights decided that there cannot be an absolute right to life for a foetus as this would undermine the absolute right to life of the mother.

Question 7

does the right to life apply in countries where the ECHR has not been signed?

Answer 7

it applies in countries where army forces (from ECHR member states) are carrying out military action ( Al-Skeni v UK)

Question 8

what does life mean?

Answer 8

Human life

Question 9

what does arbitrarily mean?

Answer 9

on the basis of random choice or personal whim, rather than any reason or system.

Question 10

what is a positive obligation?

Answer 10

obligations ‘to do something’ to ensure respect and protection of human rights

Question 11

what is a negative obligation?

Answer 11

a duty not to act; that is, to refrain from action that would hinder human rights

Question 12

when considering the positive duty on states to protect life, what issues are their to consider?

Answer 12

• protection of individuals from violence by others
• protection from lethal environment risks
• prevention of suicide by prisoners
• states duty to make adequate investigation into loss of life

Question 13

what are the three requirements of the Osman test (establishing the protection of individuals from violence by others) article 2

Answer 13

• knows or ought to have known at the time
• of the existence of a real and immediate risk to life of identifiable individuals
• failed to take reasonable measures to avoid the risk

Question 14

when is the Osman test used?

Answer 14

it is a test to show if the authorities did/ did not do all that could be reasonably expected of them to avoid a real and immediate risk to life

Question 15

what are the three exceptions stated in Article 2 as to when a life can be taken lawfully?

Answer 15

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.

Question 16

what does Article 5 state?

Answer 16

5.1) No one shall be deprived of his liberty save (except) in the following cases and in accordance with a procedure prescribed by law:

The lawful detention of a person after conviction by a competent court (prison)
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 (Kettling)
The lawful arrest or detention of a person affected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence (stop and search) or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so (to stop more crime happening)

Question 17

what does article 5 protect?

Answer 17

humans right to liberty and security

Question 18

what does 5(1) state?

Answer 18

No one shall be deprived of his liberty save (except) in the following cases and in accordance with a procedure prescribed by law:

Question 19

what does 5(2) state?

Answer 19

Everyone who shall be arrested shall be informed promptly, in a language which he or she understands, of the reasons for his arrest and of any charge against him (the arrest)

Question 20

what does 5(3) state?

Answer 20

Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of the art. Shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. (the trial)

Question 21

what does 5(4) state?

Answer 21

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. (the trial)

Question 22

what does 5(5) state?

Answer 22

Everyone who has been the victim of arrest or detention in contravention of this article shall have enforceable rights to compensation

Question 23

what type of right is Article 5?

Answer 23

this articles is a limited right - therefore it cannot be interfered with by the state unless it is allowed under the subsections a-f or the state derogates

Question 24

what is the positive obligation of article 5?

Answer 24

to protect citizens from any arbitrary deprivation of liberty

Question 25

what is the negative obligation of article 5?

Answer 25

not to deprive citizens of their right of liberty unless there are justified reasons for the interfearance

Question 26

what is a deprivation of liberty defined as (article 5)

Answer 26

a person is objectively detained for a period of time - this does not necassarily involve prison (Austin v UK)

A distinction has to be made between being deprived of their liberty and general restriction of movement
examples of where there has been a breach is:
- HL v UK
- Amur v France
(in Austin v UK there was no breach of article 5)

Question 27

what is the definition of kettling?

Answer 27

a police tactic for controlling large crowds during demonstrations or protests. It involves the formation or large cordons of police officers who then move to contain a crowd within a limited area

Question 28

what is a breach of peace (BOP)?

Answer 28

a public disturbance, or an act considered likely to cause one

Question 29

Article 2 scaffold

Answer 29

Under Article 2 of the European Convention on Human Rights 1953, everyone has a right to life which is protected by law. This is an absolute right and can only be derogated from during war and in justified exceptions. In the UK, there is a wide margin of appreciation for abortion and defining what life is.

Under s.6 HRA 1998 it is unlawful for the state to act against someone’s rights.

In this scenario… [Where has a life been taken]

[An abortion does not go against Article 2 as it undermines the right of the mother, as in Paton.]
[The ‘right to die’ is not stated under Article 2, as in Pretty.]

Under Article 2.1 there must be a positive obligation by the state to refrain from taking life and also to take safeguard lives. The Osman test, established in Osman v UK, is used to ensure that the state has taken positive steps to prevent violations. There is duty to protect when: they know or ought to have known at the time of the existence of a real and immediate risk (to life) of identifiable individuals and failed to take reasonable measures to avoid the risk. Any investigation of the State for a violation of Article 2 must be conducted by an independent body. In this scenario…

[Also the state is reasonably expected to protect those held in custody, as in Keenan, and against domestic abuse, and environmental risks] Address as appropriate.

However, under Article 2.2 a state can only take a person’s life if the deadly force is ‘absolutely necessary’. These exceptions are:
If they truly believe the victim will cause unlawful violence (McCann), Here the police must base lethal force on their genuine and honest belief (Armani de Souza v UK).
To prevent an escape of a lawful arrest (Nachova),
Quelling a riot (Stewart or Gules). In this scenario…

Ensure throughout that you consider whether the Police have had adequate training, preparation and investigation for any operations being carried out.

If the state have taken a life, they must carry out an independent, prompt, open to scrutiny investigation (Jordan). APPLY

s.6 of the HRA 1998 established that it is unlawful for a public authority, such as the Police to act incompatible with Art 2 unless a justified exception in law, there is this claim…

Under s.7 HRA 1998 the victim of a breach can bring their claim to a domestic court against the public authority in violation of s6. And under s.8 HRA 1998, the victim can claim compensation against the state if they have proven their right to life has been breached

Question 30

what does s.6 HRA state? (article 2)

Answer 30

it is unlawful for a public authority such as the police to act incompatible with art 2 unless a justified exception in law, then there is a claim

Question 31

what does s.7 HRA state?

Answer 31

the victim of a breach can bring their claim to a domestic court against the public authority in violation of s6. And under s.8 HRA 1998, the victim can claim compensation against the state if they have proven their right to life has been breached

Question 32

what case is used to establish that abortion does not go against the article 2?

Answer 32

Paton

Question 33

what case is used to establish that the ‘right to die’ is not stated under article 2?

Answer 33

Pretty

Question 34

when is there a duty to protect under article 2?

Answer 34

they know or ought to have known at the time of the existence of a real and immediate risk (to life) of identifiable individuals and failed to take reasonable measures to avoid the risk. Any investigation of the State for a violation of Article 2 must be conducted by an independent body.

Question 35

What has the Jordan case established?

Answer 35

If the state has taken a life, they must carry out an independent, prompt, open to scrutiny investigation (Jordan).

Question 36

when can life be derogated?

Answer 36

during war and in justified exceptions

Question 37

what does Article 2, part 2.1 and 2.2 state?

Answer 37

2.1 states there must be a positive obligation by the state to refrain from taking life and also to safeguard lives. (then Osman test)

2.2 a state can only take a person’s life if the deadly force is ‘absolutely necessary’

Question 38

what are the exceptions under Article 2.2 of taking a life?

Answer 38

• If they truly believe the victim will cause unlawful violence (McCann), Here the police must base lethal force on their genuine and honest belief (Armani de Souza v UK).
• To prevent an escape of a lawful arrest (Nachova),
• Quelling a riot (Stewart or Gules)

Question 39

what did rice v connolly establish?

Answer 39

individuals being questioned only, can refuse to answer police (stop and search)

Question 40

what did Ricketts v Cox establish?

Answer 40

if someone being questioned (stop and search) becomes aggressive towards police officers, they will be arrested

Question 41

what does s,1 of PACE 1984 establish?

Answer 41

the right to stop and search

Question 42

what are some items which justify a stop and search?

Answer 42

• Stolen items
• Offensive weapons
• Items intended for use in the commission of a burglary, deception, criminal damage or TWOC.
• Fireworks.
• drugs

Question 43

how does s.24 (1) PACE give police officers power of arrest, and where can they do this

Answer 43

s.24(1) PACE gives general powers of arrest to a police officer where:
Anyone about to commit an offence or is in the act of committing an offence

Reasonable grounds for suspecting someone is about to commit an offence

Reasonable grounds for suspecting someone is in the act of committing an offence

Question 44

what is the necessary criteria to establish an arrest if necessary?

Answer 44

• To find out someone’s name and address (verify identity)
• To prevent them from harming themselves or others, suffering injury, damaging property, obstructing the highway or committing an offence against public decency.
• To protect a child or vulnerable person
• To allow a prompt and effective investigation
• To prevent the suspect disappearing

Question 45

what is the 2 stage approach for a lawful arrest (article 5)?

Answer 45

1. A PO knowing or having reasonable grounds for suspecting a person to be guilty of an offence
2. A PO having reasonable grounds for believing that person’s arrest to be necessary. The reasonable grounds must be objective and based on one or more of the reasons in s.24(5)

Question 46

what are the rules for being held in custody and bail?

Answer 46

• The police can hold you for up to 24 hours before they have to charge you with a crime or release you
• They can apply to hold you for up to 36 or 96 hours if you are suspected of a serious crime, such as murder
• You can be held without charge for up to 14 days if you are arrested under the Terrorism Act
• Must be told about the duty solicitor

Question 47

what does Article 5(1) state?

Answer 47

a-c provide justification for a lawful deprivation of liberty:
These reasons are:
A) Being convicted of a criminal offence and sentenced to prison
B) In order to secure fulfilment of duties (Police carrying out their lawful duties) Kettling for a breach of the peace or violent incident.
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 (stop and search) or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so (to stop more crime happening).

Question 48

what are the options to mention in Article 5 of why a person can be deprived of their liberty?

Answer 48

• kettling
  -deprivation of a mentally disorded patient, (there are requirements (Winterwerp v Netherlands))
• stop and question
  -stop and search
• arrest

Question 49

what does article 5(2) state?

Answer 49

everyone arrested shall be informed promptly, in a language which they understand, of the reasons for their arrest, as in Section 24 PACE where it states the caution that must be said to the suspect. I

Question 50

what does article 5(3) state?

Answer 50

everyone arrested or detained following the provisions of paragraph 1(c) of this Article shall be bought promptly before a judge. McKay v UK established that four days is a maximum

Question 51

what does article 5(5) state?

Answer 51

if successful in a claim the victim can claim for compensation