Human Rights Flashcards
S4 HRA
Declaration of incompatibility
What might follow a declaration of incompatibility
Remedial order under s10 HRA
S2 HRA
Take into account ECHR jurisprudence
S3 HRA
Courts must interpret legislation in a manner compatible with convention rights as far as it is possible to do so
What is unlawful under s6 HRA
For a public authority to act in a way which is incompatible with a convention right
What is a public authority for the purposes of the HRA
Courts, tribunals, any person whose functions are of a public nature
Core public authorities and hybrid public authorities
Not H of L, H of C or person exercising functions in connection with proceedings in Parliament
Who is not a public authority for purposes of HRA
Not H of L, H of C or person exercising functions in connection with proceedings in Parliament
What are the two types of public authorities
Core public authorities
Hybrid public authorities
What is a core public authority
governmental in nature and serve and regulate the general population
What is a hybrid public authority
Primarily exercises private functions but some of their functions are of a public nature - they are governmental or regulator and not dependent on consent or agreement
S19- when must ministers issue a statement of compatibility
When issuing a bill
How long does a claimant have to bring a claim for breach of rights
One year of the act occurring unless JR which is shorter
Can the court extend the one year time limit on brining a rights claim
Yes if equitable
Requirements for bringing a human rights claim
You are a victim
One year since breach
Who is a victim for the purposes of HRA
Directly affected by the act of omission that is the subject of the complaint
What remedies are available under s8 HRA
Damages Declaration Injunction Quashing order Mandatory order Prohibiting order
Are damages always available for a human rights claim
No damages if public body is subject to a statutory scheme of regulation with an independent regulator with powers of enforcement whose decisions are subject to JR
Must be necessary and appropriate to give just satisfaction
Notice requirements for protests
6 days clear written notice to be given to police including name and address of one organiser and route and time
When can conditions be imposed on a protest
To prevent serious public disorder, serious criminal damage or serious disruption of life of the community
Can a protest be banned
For up to three months
To prevent serious public disorder, serious criminal damage or serious disruption of life of the community
How many people are required for a public assembly
Two or more
Can protestors and innocent passers by be detained
Austin-
Yes even where they do not appear to be about to commit a breach of the peace where it is necessary to prevent an imminent breach of the peace by others and no other means would achieve that
When can a person be arrested without warrant
If police have reasonable grounds to suspect that they committed certain offences or are about to
What to do when arresting someone without a warrant
Tell them what they are arrested for at time of arrest or first reasonable opportunity afterwards
What must an officer disclose before commencing a stop and search
Name and name of station
When can someone be stopped and searched
Acting on reasonable suspicion may search anyone to find stolen goods, drugs, weapons
Can they use force during a stop and search
Can use force if they won’t cooperate
When can the police enter and search premises
When they have a search warrant, a statutory right of have obtained permission from owner occupier
Restriction on police to search property when they have a warrant
Search at reasonable hour and if owner is in occupation then with their permission
Can the police force entry to search a property
Only with a warrant
When do police have statutory authority to search a property without a warrant
To deal with or prevent a breach of the peace
Enforce an arrest warrant
Arrest a person for certain offences
Recapture someone who escaped from custody
Save a life
Prevent serious damage to property
Must have reasonable grounds to believe person searching for is in there
When can the police search a premises linked to an arrested person
If it was occupier by an arrest person or visited by them during or immediately prior to their arrest
Must reasonable believe they will find evidence connected to the crime the arrested person is accused of committing
When can the police sieze goods
If reasonable grounds to believe that the goods have been obtained illegality or are evidence of an offence
Necessary to prevent them being lost, stolen or destroyed
When can a qualified right be restricted
If it is prescribed by law, has a legit aim and is necessary in a democratic society
Necessary in a democratic society
Pressing social need
Inference with the right must be proportionate
Proportionate meaning
Doesn’t go further than needed
Margin of appreciation for necessity
Respect MS judgement re what public interest requires
What legitimate aims are listed in articles 8
Article 8 interests of national security, public safety or economic well-being
Prevention of disorder or crime
Protection of rights and freedoms of others
What are legitimate aims listed in article 10
Prevention of disorder or crime
Protection of rights or freedoms of others
Prevention of disclosure of confidential info
Maintain authority and impartiality of judiciary
Test for proportionality
Objective of measure is important
Measure is connected to objective
No less intrusive measure to use
Balance between right and community interest
2 ways an ECHR claim may commence
State application
Individual application
2 stages of an ECHR claim
Admissibility
Merits
If ECHR case is deemed inadmissible can you appeal
No
Can you appeal a decision on the merits of an ECHR case
Yes within 3 months appeal to grand chamber
Do ECHR decisions bind MS
No but committe of ministers of the council of Europe ensures states comply with judgements
Requirements for an individual to bring an ECHR claim
Exhaust domestic remedies
Within 6 months of decision
Personally and directly victim of breach
Suffered a significant disadvantage
Which are absolute rights
2,3,4,7 9 10
Cannot be interfered with but have exceptions that don’t count as interference
What are limited rights
Can only be limited in clearly defined and finite circumstances
Articles 5 and 6
What are qualified rights
Balance right against public interest
8,10,11 and article 1 of protocol 1
Can the ECHR be derogated from
Article 15
In time of war or public emergency threatening life of nation
Not 2,3,4,7 - except death result from lawful war
What is article 7 ECHR
Cannot be charged with criminal offence if it wasn’t a crime when it was committed
What is article 6 ECHR
Fair trial
Sets out min rights for those charged with a crime
Innocent until proven guilty
When does article 6 apply
When an individual attempts to assert substantive legal rights
What is article 4
Slavery
What is slavery
The status or condition of a person over whole any or all of the powers attaching to the right of ownership are exercised
What is forced/ compulsory labour
Work they’re forced to do against their will
Individual must be exploited
What is NOT forced labour
Prisoners working
Military service
Work required in an emergency threatening life or wellbeing of community
Work part of normal civic obligations
Which is article 5
Ensure no one is deprived of their liberties in an arbitrary fashion
Procedure must be followed before depriving someone of their Liberty
Exceptions to article 5
Arrest Detention by police Prison after conviction Detention in hospital for mentally ill Detention in an asylum context Deportation
Must still be in accordance with a procedure prescribed by law
Requirements that must be met to prevent a deprivation of Liberty being arbitrary
Good faith (similar to an exception) Detention is necessary (no less server method is suitable) Length not exceeding what is required Keep record of reasons Lawful nationally
What is article 3
Torture, inhuman or degrading treatment or punishment
Absolute right
No exceptions
What is torture
Deliberate inhuman treatment causing very serious and cruel suffering
What is inhuman treatment
Treatment of punishment likely to cause actual bodily injury or intense physical or mental suffering
Which articles are breach when deporting someone to a country where there is a real risk of death or torture/ inhuman treatment
Breach of articles 2 and 3
What positive obligation does article 3 create
State has obligation to ensure non state actions eg parents don’t punish children to a level where article 3 is engaged
What is article 2
Right to life
Prohibits state from taking life
What positive duties does article 2 create
Positive duty on state to protect life
State must carry out a full and thorough investigation where an allegation is made that there has been an article 2 breach
What is not included in article 2
Doesn’t prohibit death penalty - protocol 6 does
Doesn’t apply to embryos
Exception to article 2
Allows force resulting in death if conditions are met:
Use of force must be no more than is absolutely necessary and
Either for defence, arrest, prevent escape from detention or prevent riot or insurrection
Article 10
Freedom of expression
When can article 10 be restricted
Prescribed by law
Legit aim
Necessary in democratic society
Is offensive, shocking and disturbing speech protected by article 10
Yes and it should not be restricted but speech that goes beyond this isn’t protected
What is article 11
Freedom of assembly and association
What is freedom of association
Membership of bodies
When can article 11 be restricted
Prescribed by law
Legit aim
Necessary in a democratic society
Positive duty created by article 11
State should protect the exercise of the right
State should protect protestors
But not absolute obligation on the state to facilitate peaceful protest so restrictions on protestors allowed
Article 12
Right to marry
Can article 12 be restricted
Subject to national laws
Non arbitrary restrictions are allowed if not interfering with essential principle of right
Are trans people and same sex marriage included in article 12
Trans people are included
Same sex marriage is not
Article 8
Right to respect for private and family life
What does article 8 include
Private life Family life including unmarried stable relationships Home where one currently lives Correspondence Bodily integrity Personal autonomy Sexuality Personal info
Article 9
Freedom of thought conscience and religion
When can article 9 be restricted
Prescribed by law
Legit aim
Necessary in democratic society
Article 13
The right to an effective remedy before national authorities for violations under ECHR
Article 14
Discrimination affected enjoyment of a convention right
Direct and indirect discrimination
Article 1 first protocol
Peaceful enjoyment of possession of land and personal property
Compensation for deprivation of property
Meaning of peaceful enjoyment
Article 1 first protocol
Financial value of property or possession
When can article 1 first protocol be restricted
Lawful and necessary for Public interest
Article 2 first protocol
Right to education
Recognise studies
Not to deprive of education
Does article 2 first protocol require the state to subsidise education
No need to subsidise
Does expulsion breach article 2 first protocol
No breach of expulsion is foreseeable, pursues a legit aim, and proportionate to the aim
Article 2 first protocol
Can gov determine curriculum and does it have to include parents beliefs
State must respect the rights of parents to ensure education in conformity with their own religious and philosophical convictions but gov can determine curriculum as long as it is consistent with objectivity and pluralism
Article 3 first protocol
Free elections by secret ballot and reasonable intervals
Article 1 protocol 12
Abolish death penalty including crime at war
Test for misuse of private info
Objective
Did C have a reasonable expectation of privacy in the circumstances
Balance article 8 and 10
S12(4) HRA
Court must consider important of freedom of expression where material is journalistic and whether it would be in the public interest for the material to be published
S1,2,3,4,6,7,8,10,19 HRA
1- incorporates ECHR rights
2- take into account ECHR judgements
3- so far as poss read leg in compatible way
4- declaration of incompatibility
6- unlawful for public authorities to breach ECHR unless giving effect to incompatible statute
7- can claim against body that breaches s6 and rely on ECHR rights in any proceedings
8- damages if necessary for Judy satisfaction
10- remedial order through affirmative procedure
19- statement of compatibility or cannot make one but want to progress anyway
What is a public body for HRA
Same meaning as for JR
What is a victim for HRA
Directly and personally affected
Not pressure groups
