Human Rights Common Law protections

Question 1

we have human rights regardless of the ECHR

Answer 1

-wont loose rights, ECHR just a form of protecting them
-first paragraph of ECHR- considering the universal declaration of human rights
-UDHR- doesnt create Human rights, recognises that we have these rights

Question 2

if we loose ECHR we are relying on protection from the common law

Answer 2

-common law found slavery as unlawful- somerset v stewart 1772, somerset abducted and sold as slave, court informed and brought to court and freed
-common law has long prohibited torture- A and other v SOS for the home department 2005- the courts recognised here that the CL prohibits torture, torture did take place in 16th and 17th century due to warrant issues by the coucil/crown due to offences against the state but the common laywers regarded it as repugnant to the fundamental principles of english law so act abolished court of star chamber where torture evidence reciebed and stopped issuing warrants
-protection of property and right to a private life- Entick v carrington 1765- publisher published things the govt didnt like, sos for home dept issued warrant to the kings messenger to enter the plaintiffs house and seize his papers, SOS has no authority so unlawful

Question 3

weakness withe common law

Answer 3

-supremacy of the crown in parliament
-if an act on parliament denies a fundamnetal right the courts are powerless to stop this
-carringtons coleagues would have legislative powers today- police and criminal evidence act 1984 s8 authorises forced entry to seize goods
-is HR act better than common law as common law subject to parliamenatary sovereignty

-R v SOS for home department ex p simms 2000- prison rules imposed blanket ban on journalists publishing from their interviews with prisons, prisoners comained were innocent and sought access to journalists to investigate detention, quashes blanket ban, lord hoffman said HRA subject to parliamentary sovereignty aswell but HRA condifies common law rights, but convention reflect common law ao not introducing anything new, principle of legallity will be expressly enacted as a rule of construction in sc3, declaration of incompatiblity does make acts invalid due to parliamentary sovereignty

Question 4

rights explicitely protected through the HRA

Answer 4

-freedom of expression art 10- Derbyshire CC v times newspaper 1993- derbyshire cc sued newspaper for libel regarding administration of a super-annuation fund, COA applied art 10 of ECHR, HOL said common law was sufficient
-art 6 right to a fair trial- judicial independence- dimes v grand junction qanal 18520 lord cottenham held shares on canal so HOL held his judgement too be set aside
r v horesferry road magistartes court bennett 1995, bennett abducted and taken to uk for trial, british courts found was unlawful as the propriety of procedure regard to the liberty is transcendent (supreme)
regina v A 2001- cross examining minor, allowed for fair trial, originally from common law not ECHR