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Ella Constitutional and Administrative BPP GDL Notes > Human Rights Article 2, 3, 5, 6 > Flashcards

Human Rights Article 2, 3, 5, 6 Flashcards

1
Q

Freedom of person

A
  • Article 2 Right to life
  • Article 3 Prohibition of torture
  • Article 5 Right to liberty and security
  • Article 6 - Right to a fair trial
    (PACE)
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2
Q

Significance and scope - Article 2 Right to life

A
  1. Duty not to take life
  2. Duty to safeguard life
  3. Obligation to investigate deaths
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3
Q

Article 2(1)

A
  • 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
  • death penalty initially preserved in article 2(1) but since outlawed (Protocol 6)
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4
Q

Article 2(2)

A
  • deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force that is no more than absolutely necessary

Three specific situations where fatal force can be used by the state:

  1. defence of any person from unlawful violence
  2. effect of lawful arrest or prevent escape
  3. to quell a riot

Proportionality component too

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5
Q

Killing by agents of the state

A
  • McCann, Farrell and Savage v UK (1996)
  • actions of individual soldiers: no breach
  • control and organisation of operation = breach by UK, duty of command and control
  • killing of three IRA members
  • SAS: carrying out shoot to kill
  • but were unarmed
  • courts conclusion was action of individual SAS soldiers did not give rise in themselves to violation of Article 2, soldiers were confronted in immediate danger by potential threats, found a violation in respect to article 2 as management was wrong
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6
Q

2(2) Duty to safeguard life

A
  • positive obligation
  • Osman: ECHR confirmed Article 2 implied positive obligation on states to take preventative measures to help citizens whose life is at risk
  • weigh up balance between public interest and degree of risk i.e. R (A) v Lord Saville, ‘Bloody Sunday’ Inquiry court allowed videolink

Risk to life - witness protection, prisoner protection, protection of identity i.e. Venables v News Group

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7
Q

State responsibility in war

A
  • is there an article 2 positive obligation to safeguard soldier’s lives?
  • Smith, Allbutt & Ellis v MoD new possible development in connected cases in SC
  • death of three soldiers in Iraq
  • gave rise to concerns about possible issues with British authorities
  • MoD attempted to argue claims should not proceed using principle of combat immunity
  • SC not prepared to rule positive obligation will not apply during war time
  • difficult issues on potential burden imposed
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8
Q

Article 2 - medical law

A
  • Rabone v Pennine Care NHS Trust - operational obligation under art 2 to those in “real and immediate risk” of death
  • assisted suicide
  • question over burden on NHS trusts to preserve life
  • R (Purdy) v DPP, R v DPP ex p Pretty
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9
Q

2(3) Obligation to investigate

A
  • Bingham: “not a minor or unimportant duty” - R (Amin) v Sos Home Dep: man killed in Feltham by cellmate known for racism
  • killing by state agents - McCann - court found investigation sufficiently thorough
  • (Hugh) Jordan v UK
  • McKerr v UK
  • Kelly & Others v UK - “Loughgall Ambush”
  • Shanaghan v UK
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10
Q

Accountability of state

A

a. independent and impartial investigation
b. state should act on its own initiative
c. should involve the family as much as possible
d. clear outcome and recommendations

… future prevention of systematic failures

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11
Q

Article 3

A
  • no one shall be subjected to torture or to inhuman or degrading treatment or punishment
  • absolute right not subject to derogation
  • conduct of applicant is not a factor (Ireland v UK)
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12
Q

Severity of treatment under article 3

A
  • torture: aggravated form of art 3 breach - deliberate, cruel and violent (Aksoy v Turkey)
  • no cases of outright torture carried out by UK state
  • Ireland v UK ‘Five Techniques’ in trouble as torturous elements
  • UK government expected some earlier findings by CoE that this kind of treatment of suspects did amount to torture
  • when got to Strasbourg decided treatment did not meet necessary threshold of outright torture, held to be inhumane and degrading treatment
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13
Q

Inhuman and degrading treatment

A

Petty v UK

  • ill-treatment that attains minimum level of severity and involves actual bodily injury of intense physical or mental suffering
  • degrading - where treatment humiliates or debases an individual
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14
Q

Inhuman and degrading treatment examples

A

There are lots of cases that pass minimum threshold, however some cases considered as whether they would pass minimum

Napier - insanitary conditions Glasgow prison, slopping out, Napier serious flare up, sufficient to satisfy art 3 rights

Spinks v Sos Home Dep - prisoner with terminal cancer tried to argue for early release on compassionate grounds. Court said no, handcuffing of him was not precludatory to serious psychological harm.

T v SoS Home Dep - asylum seeker denied any support pending position on appeal but not found to be sufficient

N v SoS Home Dep - HIV positive, Law Lords said she should return even though recognised medicine expensive there

Sentencing
- Vinter, Bamber and Moore v UK - whole life order: Strasbourg held key principle of art 3 was reducibility of sentences, so life sentences could not be justified

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15
Q

Article 3 - positive obligation?

A

Negative duty
- absolute duty not to commit torture or cause inhuman and degrading treatment

Positive duty - not absolute
- duty to take reasonable steps to prevent individuals from being subject to proscribed treatment

i.e. deportation/extradition… should not be deported if real risk of torture etc.

R (Ullah) v Special Adjudicator
Chahal v UK
Soering v UK

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16
Q

Article 3 balance of factors

A
  • talk about positive duty and obligation, need to consider extent gov taken reasonable steps in first place
  • R (Limbuela) v SoS Home Dep: spectrum of cases, degree of discretion
  • Gezer v SoS Home Dept - public and individual interest: Turkey asylum seekers
  • similarity to Osman

… balance interests of individual and society

17
Q

Balance between articles 2 and 3

A
  • most apparent medical law
  • end of life decisions

Pretty - in Strasbourg said prosecution threat to husband condemned her to end life in degrading way, argument rejected as Strasbourg had to balance community at large: interests of children, consent

R (Burke) v GMC
- art 3 can outweigh art2 in some circumstances - art 3 especially if babies resuscitated artificially and endure great deal of pain

18
Q

Article 5 - Lord Bingham quote from A and Others

A

“in urging the fundamental importance of the right to personal freedom…, the appellants were able to draw on the long libertarian tradition of English law, dating back to… Magna Carta 1215, given effect in ancient remedy of habeas corpus… upheld in a series of landmark decisions down centuries and embodied in substance and procedure of law to our own day”

19
Q

Protections within Art 5

A
  • Art 5(1) arrest
  • Art 5(2) reasons for arrest
  • Art 5(3) period of detention by police (suspect must be brought promptly before a judge)
  • Art 5(4) - right to challenge detention
20
Q

Article 5(1)

A
  • everyone has right to liberty and security of person
  • no one shall be deprive of his liberty unless in…
    i) following cases within section, a-f
    ii) in accordance with procedure prescribed by law
21
Q

Article 5(1) methodology

A
  1. has there been a deprivation of liberty?
  2. does it fall within one of the 6 accepted “cases” (limitations)? - likely to be Art 5.1(c)
  3. has the deprivation been carried out in accordance with a procedure “prescribed by law”?
22
Q
  1. Deprivation of liberty
A
  • deprivation or restriction? deprivation effectively means something over and above just a restriction of liberty, if only have restriction then article will not be engaged
  • difficulty is dividing line, well-illustrated by contentious recent debates in civil courts over UK gov’s use of “control orders”
  • Prevention of Terrorist Act: “control orders”, now T-PIMs
  • government has to create policy or mechanism to control individuals i.e. travel and tried to argue restricting not depriving liberty.
  • Re JJ - did amount to liberty so article 5 engaged, following ECtHR jurisprudence on this area which looked at degree of restriction imposed
  • followed earlier Guzzardi v Italy - ECtHR assessed and analysed practical effects and intensity of various restrictions, decided had been engagement

Kettling:

  • Austin v MPC found no deprivation of liberty, article 5 not engaged because containment of crowd seen as reasonable and proportionate response to non-approved demonstration
  • Austin v UK - ECtHR agreed priorities like public safety have to be considered and look at whether police acted in good faith and proportionally… then likely no breach - essentially breach must be arbitrary
23
Q

Article 5.1(c) limitation on right to liberty

A
  • the lawful arrest or detention of a person… 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
24
Q

Reasonable suspicion = objective standard

A
  • requires evidence, irrespective of context

Fox, Campbell and Hartley v UK = leading case

  • emerged from troubles
  • at time suspicion of having committed offence required only
  • subsequently interpreted in notable cases to mean suspicion had to be honestly held
  • subjective analysis
25
Q

5 - 1. 3 - prescribed by law

A
  • is there a legal basis for the interference with a right? If so..
    i) is the relevant law sufficiently accessible to the (affected) individual?
    AND
    ii) is it formulated with sufficient precision to enable citizen to regulate his conduct
  • Sunday Times v UK
  • ST case attempt to stop them publishing scandal, ECtHR had to decide whether English law relating to contempt of courts sufficiently clear
  • cannot justify state action when nothing to back up entitlement to carry it out
  • accessible - must be able to have indication adequate in circumstances of legal rules
  • sufficient precision - allow citizen to regulate his/her conduct
26
Q

Prescribed by law - Gillan & Quinton

A
  • is law sufficiently narrowly prescribed in order to prevent arbitrary abuse of power
  • Gillan - relating to narrowness of drafting
  • tells us procedure or power should not be framed as unfettered
  • less about narrowness
  • about stop and search
  • arbitrary

Compare with Roberts v MPC

  • relates to s60 criminal justice and public order
  • area more limited
  • higher bar
27
Q

Article 5(3) detention

A
  • everyone arrested or detained in accordance with article 5.1(c) shall be brought promptly before a judge
  • Brogan v UK held four days and six hours too long, Strasbourg said yes definitely too long
28
Q

Article 5(2) reasons for detention

A

Fox, Campbell and Hartley v UK: “Everyone who is arrested shall be informed promptly, in a language he understands, of the reasons for his arrest and of any charge against him”.

  • understand why, be able to challenge, not absolute as long as it becomes apparent
29
Q

Article 5(4) right to challenge lawfulness of detention - “speedily”

A
  • life sentences and tariffs
  • Mental Health Act 1983
  • Osborn v Parole Board
  • R (Haney) v SoS Justice
  • allows person who is detained to judge lawfulness of detention
  • should be done in speedy way
30
Q

Article 6(1)

A
  • ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing with a reasonable time by an independent and impartial tribunal established by law.’
  • judgement - pronounced publicly, unless interests of justice require otherwise
  • right to fair trial
  • first bit applies to civil and criminal law
  • then reference fair and public hearing
31
Q

Substance of article 6(1) rights

A

“Right to fair trial”

  • fair legal process
  • procedural impropriety

Right of access to courts/public funding
- Airey v Ireland
R (Gudanaviciene) v Director of Legal Aid

32
Q

Additional criminal law rights

A

Art 6.2 - presumption of innocence until proven guilty for anyone charged
Art 6.3 - everyone charged has following minimum rights:
a. informed promptly and in detail of accusation
b. adequate time and facilities for defence
c. ability to defend oneself through legal assistance
d. to be able to examine witnesses against and have one’s own witness
e. free interpreter

33
Q

Application of article 6

A

access to legal advice during questioning:

  • Murray v UK - suspect questioned for 48hrs, considered to jeopardize whole later process
  • Magee v UK - N Ireland, oppressive issue, forced to give information

Right to silence - implied, not absolute

  • adverse inferences can be drawn
  • Condron v UK - told to stay silent as not entirely clear, was fair weren’t saying anything
  • R v Betts; R v Hall
34
Q

Other criminal law rights

A

Right against self-incrimination

  • Brennan v UK
  • Saunders v UK

Right to cross-examine

  • art 6.3 (d)
  • R v A
  • R v Horncastle

International dimension:
- Othman v UK: deportation to Jordan without safeguards was breach of article 6

Ella Constitutional and Administrative BPP GDL Notes (18 decks)

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