Human rights - OFFICIAL Flashcards
Joseph Smith is a member of the travelling community. he has convictions for a variety of offences, ranging from public order to dishonesty and violence to ]the person. The police have been called to an incident where fighting has occurred between a small group of men. Joseph Smith is amongst the group and is involved in the fighting. He is particularly violent and has a knife. He is taken to the custody center for processing. Three hours later, Joseph Smith is dead. He died in police custody.
What is the legal position?
The ECtHR has ruled that the right to life (article 2 of the ECHR) includes a duty to investigate suspicious deaths. Since people do not normally die in police custody, this death must be treated as suspicious and must be investigated.
What is the key criteria for whether damages are appropriate in the HR act 1998?
the key criteria for whether damages are appropriate for HRA cases are:
1) existing public and private law remedies must be inadequate
2) a casual connection between the loss and the loss in respect of which compensation is claimed
3) a sufficient degree of gravity in terms of the loss itself.
what are the main questions for a claimant considering damages for interference with his right to a home under article 8 of the ECHR?
1) the appropriateness of an award.
2) just satisfaction.
with reference to the European conventions on Human rights (ECHR), which is the procedure if a question of legislative incompatibility is raised in proceedings?
where a question of legislative incompatibility is raised in proceedings, the minister responsible may be joined as a party, as this allows the government to clarify its stance.
if a person complains that a public authority has acted in a way that is incompatible with European convention on Human rights (ECHR) and the complaint is by an application for judicial review?
if the complaint is by an application for judicial review, it must be brought promptly and will normally have to be brought within three months at the least
the UK government implemented primary legislation that required domestic courts to order the detention of suspected terrorists without trial. a high court judge makes a declaration of incompatibility (DOI) after a detainee submits that the legislation is incompatible with his rights under the European Convention on human righs.
what is the best option that states the effect of declaration of incompatibility (DOI) ?
the purpose of DOI is to give notice of the incompatibility to the government so that it may initiate remedial action, but not to provide a remedy for any victim.
a local authority implemented primary legislation, which, in effect, violated the rights of disabled residents living in a publicly funded social housing scheme. the local authority could not have acted differently in order to promote the object and purpose of the legislation.
what is the best advice to the parties.(hint links to s6 HR)
( it relates to s6 of the HR - it makes unlawful for a public authority to act in a what which is incompatible with a convention right.
a claim may not be brought by the victims of the legislation against the authority, because an act, which includes a failure to act, is not unlawful if the authority has no choice but to act in that way because of incompatible primary legislation.
a local authority implemented primary legislation, which, in effect, violated the rights of disabled residents living in publicly funded social housing schemes. the local authority could not have acted differently in order to promote the object and purpose of the legislation. a victim wishes to bring a claim for damages under the HR act against the local authority.
what claims for damages can be brought and which remedy is available to the court? if any?
no claim may be brought by the victim for damages, the only available remedy is a declaration of incompatibility.
A minister intends to introduce a bill before parliament which is supported by the government. the minister has some concerns that the bill may be incompatible with the ECHR
what should the minster do?
make a written statement that the government wishes to proceed with the bill despite its incompatibility with the convention rights.
section 19 of the HRA states that, prior to the second reading of a bill in either houses of parliaments, the minister responsible for that bill must make a written statement that:
- the proposed new legislation is compatible with the convention rights (statement of compatibility) or
- Although he is unable to make a statement of compatibility, the government nevertheless wishes to proceed with the bill
statements of compatibility made by ministers under the HRA are not binding on the courts, nor do they have persuasive authority.
which courts can the declaration of incompatibility be issued at?
the high court or other higher appellate courts, such as the court of appeals or the supreme court.
