Human Rights - Freedom of Persons (Articles 2,3,5 and 6) Flashcards
Human Rights - Preliminaries
1) Does Petitioner have a standing? - Must be a “victim” as described by s.7(1) HRA 1998. Natural or legal person affected directly by action / inaction of state (Klass v Germany).
2) Has the violation been committed by a public authority?
- Core public bodies: governmental bodies (s.6(1)) - Statutory constitution, public funding, democratic accountability, special powers (Aston Cantlow v Wallbank)
- Functional / Hybrid: functional public authorities (s.6(3)(b)) e.g. Poplar Housing v Donoghue, Weaver, YL v Birmingham City Council)
3) Is the petition within the time limit? (1 year - s.7(5))
4) Is it covered by the jurisdiction? - UK, embassies, military base, occupied countries - Art. ECHR, Al-Skeini v UK (Iraq soldiers committing violation)
If all four elements are satisfied, C can bring claim.
Article 2
Right to life
- Limited right, no derogation, but state allowed to take life for law enforcement purpose.
- McCann, Farrell & Savage v UK - Two obligations:
- Full transparent investigation
- Refrain from unlawful killing via duty of command, control, training.
- Positive obligation to act:
- If authorities knew of immediate risk (Osman v UK)
- No public enquiry (R(Amin) v SOS4 Home Dep)
- Withdrawal of treatment from someone in a vegetative state is not a breach (NHS Trust A v M)
- Assisted suicide cannot be authorised (R (Pretty) v DPP)
- Authority should have prevented mental patient from leaving if there was risk of suicide (Rabone v Pennine Care NHS Trust)
Article 3
Prohibits Torture / Inhumane Degrading Treatment (IDT)
Absolute right, no derogation
- Absolute negative duty not to use torture / IDT
- Not entirely an absolute positive duty to prevent other States e.g. case where subject was deported (R(A) v SOS4HD), (R (Bagdonavicius).
What is torture?
- Interrogation techniques using psychological means = IDT (Ireland v UK)
- Stripped naked, strung up, electrodes on genitals = torture (Askoy v Turkey)
- Raped and beaten = torture (Aydin v Turkey)
- Facial disease combined with poor conditions in cell = IDT (Napier)
Article 5
Right to Liberty and Security
- Guarantees against arbitrary arrest / detention
- Limited right, lawful arrest allowed.
Article 6
Right to fair trial
- Presumption of innocence (Right to silence) (6(2))
- Limited, by practicalities in Art. 6(1)
- Requires impartiality
- Planning permission - same members = not impartial (McGonnell v UK)
- Allegations of bias (R (Beeson) v Dorset CC)
- Prosecutor wants promotion = not impartial (R v Stow)
- Time
- “Reasonable” time
- 26-month wait from being charged = unreasonable (HM Advocate v JK)
- Fair procedure 6(1), 6(3)(a)-(e)
- Occurs before trial.
- Denying access to legal advice is not okay (Murray (John) v UK), but doing this to get evidence is lawful for up to 36 hours (Police and Criminal Evidence Act), 48 hours (Terrorism Act).
Aston Cantlow v Wallbank
Preliminaries - Core Public Authority
‘Public Authority’ is “essentially a reference to a body whose nature is governmental in a broad sense.”
The following factors can be considered:
a) in possession of special powers
b) democratic accountability
c) public funding in whole or in part
d) an obligation to act only in the public interest
e) a statutory constitution
N.B. a core PA cannot itself enjoy Convention rights as it could not satisfy the description of ‘Victim’ which includes ‘non-governmental organisations.’
Klass v Germany
Preliminaries - ‘Victim’
Must be natural or legal person (e.g. corporate bodies)
“Directly affected”
Sunday Times v UK
Prescribed by Law:
- Under legal authority
- Law is clear
- Law is accessible
Gillan and Quintone v UK
Law must not be framed in such a broad way that it enables arbitrary interference with ECHR rights.
Fox, Campbell and Hartley v UK
ECHR 5(1)(c) - ‘reasonable suspicion’
“suspicion” v “reasonable suspicion”
Just “suspicion” found to be contrary to ECHR.
s.3 interpretation to “reasonable suspicion”.
Person must be informed promptly and clearly of why they’re being arrested.
R v A
3v4
Complainant’s sexual history - restricting questions potentially compromising right to fair trial.
HRA s.3(1) - interpret legislation in line with ECHR - “read as far as possible” even if one must “adopt a position that is linguistically strained”.
Ghaidan v Godin-Mendoza
3v4
s.3 - Same sex spouse inheritance.
Re S and Re W
3v4
S.4 - Care orders for Children - wording too clear to ‘interpret’ - court shouldn’t ‘make law’.
Bellinger v Bellinger
3v4
S.4 - Transexual - implications of ‘interpretation’ too great.
Ireland v UK
Article 3
Torture or inhumane and degrading
Interrogation techniques using psychological means = IDT
