Human Rights Police Powers

Question 1

What is art5?

Answer 1

Right to liberty and security.

Question 2

What factors are taken into account for an article 5 violation?

Answer 2

Guzzardi v Italy
Court makes a case by case assessment on whether liberty has been deprived.
- type, duration, effects, manner

Question 3

Principles established by the Gillan case? (stop and search)

Answer 3

Applicants were deprived of art5 rights. Police must act under reasonable grounds:

• honestly held suspicion - subjective test
• fair minded observer test
• valid even if belief was ultimately mistaken

Question 4

What is art6?

Answer 4

Right to a fair trial.

Question 5

Example of failure to adhere to art5?

Answer 5

Fox, Campbell & Hartley v UK (basing arrest on previous conviction did not satisfy fair minded observor test)

Question 6

Where can grounds for arrest arise from?

Answer 6

O’Hara v UK (from a third party)

- reasonable ground of suspicion

Question 7

What are the 4 basic rights associated with art 6?

Answer 7

• not to be held incommunicado
• access to solicitor
• silence and non-incrimination
• trial within reasonable time

Question 8

What is the purpose of questioning?

Answer 8

Chalmers v HMA (fact-finding, not to extract confession)

Cadder v HMA (

Question 9

What is the signifiance of the Cadder judgement?

Answer 9

• declined to follow Salduz principle
• departure from Strasbourg will only be valid under very convincing reasons
• UKSC rejected proposal that Scottish interrogation process is lawful

Question 10

Can cross-examination be permitted as evidence?

Answer 10

Codona v HMA (likely to be excluded due to violation of art6)

Question 11

What is the effect of Police and Reform (S) Act 2012?

Answer 11

Replaced local forces with Police Scotland.

Question 12

When is an arrest without a warrant justified? (case)

Answer 12

Peggie v Clark (reasonable grounds and justified by seriousness of crime)
Usual practice is judicial approval of warrant.

Question 13

What is the effect of CJ(S)A 2016? Key provisions. (5)

Answer 13

s1 - power to arrest without warrant if reasonable grounds to suspect offence
s3 - during arrest
s38 - intimation to another person
s43 - intimation to solicitor
s44 - private consultation with solicitor

Question 14

When can a person be lawfully detained?

Answer 14

Chalmers v HMA (no person can be lawfully detained except after a charge has been made against him)

Question 15

Justifications for continued detention.

Answer 15

• danger of absconding
• concern of obstructing proceedings
• concern of repeat offending

All of these must be convincingly demonstrated by authorities.