LS10: Protecting Rights

Question 1

Are civil liberties and human rights the same thing?

Answer 1

No, related but different things.

Civil liberties approach was before HRA 1998, when common law was used to allow citizens to be free to do as they wished, subject to law limitations. They’re described as residual. (E.g. UK)

Human rights are duties placed upon the state to protect and safeguard particular freedoms for the individual (e.g. USA, France).

Question 2

What is the principle of legality?

Answer 2

To do with statutory interpretation:

An Act of Parliament will be construed subjected to a presumption that Parliament does not intend to interfere with constitutional rights.

Question 3

Did the HRA 1998 replace common law?

Answer 3

No, it did not remove the existing common law or prevent common law action.

Question 4

Does the ECHR counts as international law for the UK?

Answer 4

Yes, the UK recognises the ECHR and most rights are domestically enforceable in UK courts.

Question 5

How many judges are there in a Grand Chamber of the ECtHR?

Answer 5

17 judges. Each signatory nation appoints one judge (currently 47)

Question 6

What are some principles of jurisprudence applied in the ECtHR?

Answer 6

○ PURPOSIVE: a “teleological” or “purposive” interpretive approach, looking at the underlying purpose of the treaty;

○ EVOLUTIVE: that ECHR is a living instrument, ensuring that its words are not fixed in 1950 but are interpreted in light of changes in values over time (this is sometimes referred to as an “evolutive” approach to interpretation); and

○ APPRECIATION: the margin of appreciation, whereby a degree of leeway may be afforded to the signatory state in question with regard to its culture and history when considering its national law as relevant to the alleged breach of rights. For example, the prohibition of abortion in Ireland would be considered in light of its constitution being influenced by Catholic doctrine.

Question 7

What are the ECtHR’s decisions binding on?

Answer 7

Decisions are binding in international law.

Question 8

What are the 3 types of Convention rights?

Answer 8

1. Absolute rights
2. Limited rights
3. Qualified rights

Question 9

What is an absolute right?

Answer 9

A right that has no qualification.

Question 10

What is a limited right?

Answer 10

Rights that contain narrow express exceptions of qualifications in the text of the articles themselves.

Question 11

What is a qualified right?

Answer 11

Broader right, includes conditions where it may be lawfully restricted.

Question 12

What are the 4 elements in determining the proportionality of a restriction on the Convention right in the UK courts?

Answer 12

(1) Legitimacy: any restriction on fundamental rights must serve a legitimate aim. For Articles 8–11 these are set out in the second paragraph of the rights.
(2) Suitability: restrictions on a Convention right must be capable of furthering the stated aim.
(3) Necessity: any restrictions on fundamental rights must go no further than is necessary to achieve the stated aims.
(4) Fair balance: overall, a fair balance must be struck between the rights of the individual and the interests of the community.

Good example: In M v H [2020] the court was asked to make an order that two children be vaccinated at the wishes of their father, and in accordance with the NHS vaccination schedule, against the wishes of their mother. Their mother argued that to order vaccination of the children would be in breach of their rights under Art 8. The court rejected this contention. The vaccination served legitimate aims: protecting the children from disease and preventing disease spread in the wider population. The measure proposed (vaccination) was suitable for furthering the aim of preventing disease. The mother contended that vaccination was not necessary, and that other measures, such as dietary changes, would achieve the aim with less intrusion into Art 8 rights. The court rejected this. Finally, the court concluded that ordering vaccination represented a fair balance between the Art 8 rights of the children and the objectives of protecting both the children and the wider population from disease. The making of the order was proportionate.

Question 13

What is Article 2 ECHR?

Answer 13

Right to life (Limited Right)

• Qualified that a death resulting from state action (arrest, riot) or self-defence may be lawful.

Question 14

What is Article 3 ECHR?

Answer 14

Prohibition of torture, inhuman or degrading treatment or punishment. (Absolute Right)

Question 15

What is Article 4 ECHR?

Answer 15

Prohibition of slavery and forced labour (Absolute)

• Mostly human trafficking cases.

Question 16

What is Article 5 ECHR?

Answer 16

Right to liberty and security (Limited Right)

• Unless convicted, arrested, minors for education, infectious diseases/under the influence, detention for deportation.

Question 17

What is Article 6 ECHR?

Answer 17

Right to a fair trial (Limited Right)

Question 18

What is Article 7 ECHR?

Answer 18

No punishment without law (Absolute Right)

• prohibits punishment for retrospective crimes

Question 19

What is Article 8 ECHR?

Answer 19

Right to respect for private and family life (Qualified Right)

• physical and psychological integrity, images/info about individual, personal autonomy (sexual behaviour, consent to medical treatment), one’s identity.

Question 20

What is Article 9 ECHR?

Answer 20

Freedom of thought, conscience and religion (Qualified Right)

• right to hold and manifest a belief.

Question 21

What is Article 10 ECHR?

Answer 21

Freedom of expression (Qualified Right)

• written/spoken word, afforded a wide margin of appreciation.

Question 22

What is Article 11 ECHR?

Answer 22

Freedom of assembly and association (Qualified Right)

• Assembly means protest and association means political or union party.

Question 23

What is Article 12 ECHR?

Answer 23

Right to marry (Qualified Right)

Question 24

What is Article 14 ECHR?

Answer 24

Prohibition of discrimination

• can’t be relied upon independently, must be with another breach of a right.

Lady Hale highlighted four key questions to be considered in relation to Art 14.
(1) Do the circumstances “fall within the ambit” of one or more of the ECHR rights?
(2) Has there been a difference of treatment between two persons who are in an analogous situation?
(3) Is that difference of treatment on the ground of one of the characteristics listed or “other status”?
(4) Is there an objective justification for that difference in treatment?

Question 25

What is Article 15 ECHR?

Answer 25

Derogation in time of emergency - a mechanism by which rights may be disapplied in certain circumstances. E.g. UK Govt disapplied Art 5 in Anti-Terrorism, Crime and Security Act 2001 to detain terrorists without charge.

Question 26

What year did the HRA 1998 come into effect?

Answer 26

In 2000.

Question 27

After the HRA 1998, can you go straight to the ECtHR?

Answer 27

No, you must first go through the UK courts.

Question 28

In which 2 ways does the HRA 1998 protect rights?

Answer 28

1. Legislation must be made and interpreted in line with the Convention rights. - s19 new legislation complies with Convention rights (statement of compatibility) - s3 requires legislation to be interpreted in line with Convention rights - s4 allows a declaration of incompatibility to be made about primary legislation if it cannot be interpreted to be compatible with the Convention rights. 2. Ensures public authorities act in a Convention-compatible way and provides mechanisms for individuals to make legal challenges if they do not. - s6 states that it is unlawful for a public authority to act incompatibly with the Convention rights. - s7 allows victims of a Convention right to bring proceedings against a public authority s8 - allows for a remedy when Convention rights have been breached. ALSO s2 requires UK courts to take into account decisions of the ECtHR when interpreting Convention rights.

Question 29

What is s2 of HRA 1998?

Answer 29

The UK courts must take into account ECtHR rulings when looking at an issue in connection with the Articles of the Convention. ECtHR judgments are highly persuasive, but not binding.

Question 30

Which 3 sections of the HRA 1998 are key in ensuring legislative compliance with Convention rights?

Answer 30

s19: requires a minister to make a statement of compatibility when presenting a Bill to Parliament. No compatibility does not mean it cannot pass. s3: requires legislation to be interpreted in line with Convention rights 'so far as it is possible to do so' s4: allows a declaration of incompatibility to be made about primary legislation if it cannot be interpreted to be compatible with the Convention rights.

Question 31

Which 3 sections of the HRA 1998 ensure public authorities act in a Convention-compatible way and provides mechanisms for individuals to make legal challenges if they do not.

Answer 31

- s6 states that it is unlawful for a public authority to act incompatibly with the Convention rights. - s7 allows victims of a Convention right to bring proceedings against a public authority s8 - allows for a remedy when Convention rights have been breached.

Question 32

What is the new Bill of Rights?

Answer 32

A Bill set forward to attempt to replace the HRA 1998.

Question 33

Which 3 Convention rights apply to policing in the UK?

Answer 33

Art 5: right to liberty Art 6: right to a fair trial Art 8: right to private and family life

Question 34

What are police officers forbidden to do?

Answer 34

Join trade unions or take an active part in politics.

Question 35

Where are the statutory frameworks for police powers to stop, search, arrest and detain found?

Answer 35

In the Police and Criminal Evidence Act 1984 (PACE 1984).

Question 36

What does the PACE 1984 allow police officers to do?

Answer 36

Stop Search Arrest Detain

Question 37

When is it okay for police to exercise the rights given in PACE 1984?

Answer 37

When there are reasonable grounds to suspect that a given state of affairs exist.

Question 38

Why does PACE 1984 refer to Codes of Practice to find out how to exercise their powers?

Answer 38

Using codes (non-statutory language) means a lay person and police officer can both understand the guidance.

Question 39

Are the Codes of Practice from PACE 1984 law?

Answer 39

No, they are not.

Question 40

Can the Code (PACE 1984) be admissible in evidence?

Answer 40

Yes, it can be referred to as evidence.

Question 41

What is the rule about the Code and evidence obtained in breach?

Answer 41

Courts help to ensure that police officers comply with the Codes by refusing to admit evidence that has been obtained in breach of the Codes.

Question 42

What is s2 PACE 1984?

Answer 42

Powers of stop and search.

Question 43

When can stop and search power be discharged?

Answer 43

Stop and search power can only be discharged if a police constable has reasonable grounds for suspecting that they will find stolen or prohibited articles (like offensive weapons) as a result of the search.

Question 44

What is the test for 'reasonable suspicion' in s2 PACE 1984?

Answer 44

The test for reasonable suspicion must be applied in the particular circumstances of each case and has two parts: (1) Genuine suspicion. The officer must have formed a genuine suspicion in their own mind that they will find the object for which the search power being exercised allows them to search. (2) Objective basis on suspicion, reasonable person come to same conclusion. The suspicion that the object will be found must be reasonable. There must be an objective basis for the suspicion based on facts, information and/or intelligence which are relevant to the likelihood that the object in question will be found, so that a reasonable person would be entitled to reach the same conclusion based on the same facts and information.

Question 45

Which Code is the test for stop of search found?

Answer 45

Code A - reasonable suspicion.

Question 46

When can police officers disregard information?

Answer 46

When it is likely not to be trustworthy.

Question 47

What are the two types of powers of arrest?

Answer 47

1. The power of arrest without warrant 2. The power of arrest with a warrant

Question 48

Where can you find the statute and guidance on powers of arrest without a warrant?

Answer 48

s24 PACE Code G s24

Question 49

What does Code G provide?

Answer 49

Powers of arrest WITHOUT a warrant. Reasonable grounds to believe the suspect is: - about to commit/is committing an offence - guilty of a possible offence - guilty of an offence

Question 50

All powers of arrest are subject to a test of necessity. When is it necessary to arrest someone?

Answer 50

It is necessary to arrest someone to: 1. Establish name or address 2. Prevent injury to the person or another 3. Prevent loss or damage to property 4. Prevent an offence against public decency 5. Prevent an obstruction of the highway 6. Protect a vulnerable person from the arrested person 7. Allow prompt and effective investigation of the offence 8. To prevent prosecution of the offence from being hindered by the disappearance of the person in question.

Question 51

Who usually issues warrants?

Answer 51

Magistrates

Question 52

What must a warrant specify?

Answer 52

Specify the person and the general nature of the charge.

Question 53

Who can the courts issue a warrant against?

Answer 53

Warrants can be issued against anyone who has committed or is suspected of committing an offence within that jurisdiction or who is present in that jurisdiction.

Question 54

What is a general warrant?

Answer 54

A illegal warrant, that authorises the arrest of unspecified persons or arrest for unspecified crimes. See in Entick v Carrington [1765]

Question 55

What are the rules of PACE 1984 around what happens with police stations?

Answer 55

- s29: anyone attending a police station of their own volition can leave at any time unless under arrest. - s30: a suspect must be taken to a designated police station (those with adequate facilities for detaining a person for more than 4 hours) as soon as practicable. - s31: a person arrested or voluntarily attending a police station may be arrested for another offence rather than being released.

Question 56

When is it only okay to detain a person against their will?

Answer 56

When they are lawfully arrested.

Question 57

Which section of legislation and codes cover detention of suspects?

Answer 57

Part 4 (IV) PACE 1984 Code C

Question 58

What are the rules around how long you can detain a suspect?

Answer 58

○ no more than 24 hours without charge, unless authorised by a senior police officer or magistrate. ○ May be extended for up to 36 hours by an officer of superintendent rank or above. ○ s43 and s44 PACE: A Magistrates' Court has the power to authorise further extensions, up to a total of 96 hours detention pre-charge.

Question 59

When must a person be brought before a Magistrates' court after being detained?

Answer 59

s46: A person detained after being charged must be brought before a Magistrates' Court as soon as practicable - no later than the day following the charge (with certain exceptions).

Question 60

What happens if the necessary reviews of detention aren't undertaken?

Answer 60

The detention will be unlawful.

Question 61

What type of officer must every police station have?

Answer 61

A custody officer, who decides whether it is necessary to detain the arrested person. They must be at least a sergeant and not part of the investigative team.

Question 62

What must the custody officer keep track of/make sure of?

Answer 62

'The Custody Record' Custody officer must keep a record of everything that happens to the accused 'the custody record', but also ensure that PACE 1984 and Codes are obeyed.

Question 63

Which part of the PACE 1984 is about clinical treatment and attention?

Answer 63

s9 PACE 1984

Question 64

What are the options for a detained person after further proceedings?

Answer 64

They can either be: - remanded in custody - remanded on bail

Question 65

What must be given to secure bail?

Answer 65

A surety, given by a person who guarantees that the prisoner will duly appear from trial. If they don't the money given will be paid.

Question 66

When will a court deny bail to a defendant?

Answer 66

1. court is satisfied that there is an unacceptable risk that if released on bail the defendant would: ▪ fail to surrender to custody; ▪ commit an offence; or ▪ obstruct the course of justice; or 2. it is necessary to detain them for their own protection.

Question 67

What are some conditions that the defendant may have to comply with whilst on bail?

Answer 67

- surrender their passport - reporting to police - enter a recognisance (promise to pay money if bail terms aren't kept)

Question 68

Which piece of legislation governs bail?

Answer 68

The Bail Act 1976

Question 69

What are 5 safeguards for detainees?

Answer 69

1. Custody officer must tell them orally and in writing that they have the right to have someone informed of their arrest. 2. They must be given a written advice setting out their entitlements while detained (food, drink and interviews). 3. If they don't want legal advice, they must sign to this effect on custody record. 4. They must be reminded of their right to legal advice before each review of detention, before interview and before identification procedures (Part 1 Code C). 5. If the detained person is a child, their parent or guardian (and if they are subject to a supervision order, their supervisor) must be advised of their detention (s57).

Question 70

Where can interviews with an arrested person happen?

Answer 70

Only at a police station

Question 71

How must interviews be recorded?

Answer 71

Interviews must be noted down exactly at the same time. All interviews related to indictable and triable either-way offences must be audio recorded in accordance with Code E.

Question 72

If evidence has been obtained unlawfully (outside of guidelines of PACE 1984 and Codes), can it still be admissible in court?

Answer 72

Usually no (s78), but there are exceptions. E.g. in Alladice [1988] and in Dunn [1990], the court admitted interviews which were not contemporaneously recorded: the presence of a solicitor’s clerk at the interview was viewed as providing protection for the defendant.

Question 73

Is there still a 'right to silence'?

Answer 73

No, it now is 'you do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.'

Question 74

What if a police officer uses threats or promises to get a confession?

Answer 74

The court won't allow these. See Fulling 1987, woman told her husband was having an affair and confessed - not seen as threat or promise.

Question 75

According to ? section of PACE 1984, when may police take fingerprints?

Answer 75

s61 PACE 1984 permits police, on authority of a police inspector, to take fingerprints without consent in a range of circumstances. If fingerprints are taken on suspicion, but are then cleared of offence, fingerprints must be destroyed as soon as is practicable.

Question 76

What are the rules around intimate and non-intimate body samples in the PACE 1984?

Answer 76

s62 PACE 1984 allows intimate body samples to be taken from non-arrested suspects for a recordable offence if authorised in writing by a superintendent. s3 PACE 1984 allows non-intimate body samples (mouth swab) to be taken without consent from suspects who have not yet been arrested.

Question 77

What is the National DNA Database?

Answer 77

Police database that holds DNA from people with a recordable offence - around 5 million DNA profiles stored. Under the new regime DNA and fingerprints of individuals arrested or charged but not convicted of an offence will have to be destroyed, unless one of the exceptions in PFA 2012 is triggered. For example, where someone has been arrested but not charged with a serious offence their DNA can be retained for up to five years.

Question 78

Which code contains guidance about the police's power to search persons and property? (Powers of entry, search and seizure)

Answer 78

Code B

Question 79

What are the sections of the PACE for searching an arrested person?

Answer 79

s32: searches of an arrested person where a constable has reasonable grounds that the arrested person is a danger to themselves or others. s54: searches at a designated police station by the custody officer, in order to complete custody record. (doesn't allow intimate search) s55: allows an intimate search if authorised by an officer at least inspector rank who has reasonable ground to believe that there are concealed items which could not be found without an intimate search.

Question 80

What does Code B say about when it is easiest to search premises?

Answer 80

It is easiest to search premises legally with occupier's consent, preferably in writing if practicable. (PACE doesn't mention this)

Question 81

What must be served each time a search is done?

Answer 81

Whatever power of search is being used, a Notice of Powers and Rights must be served. The form indicated the search power being used and explains the occupier's rights.

Question 82

What are the PACE 1984 sections about warrants for entry and search?

Answer 82

s8: Warrant for entry and search can be granted by a magistrate if there are reasonable grounds for believing that an indictable offence has been committed and there is evidence on the premises, that will be admissible at trial. s9: Without a warrant in order to: - execute a warrant of arrest - to arrest a person for an offence - recapture a person at large - to save life and limb - prevent serious damage to a property s18: provision for entry and search after arrest.

Question 83

Where in the PACE is power of seizure discussed?

Answer 83

The general power of seizure is contained in s19 PACE 1984, whereby a constable lawfully on premises may seize anything which is on the premises if they have reasonable grounds to believe that it has been obtained in consequence of the commission of an offence. ○ It must be evidence of the offence being investigated or evidence of any other offence. It must be necessary to seize it in order to prevent it from being concealed, lost, damaged, altered or destroyed.

Question 84

What is the Equality Act 2010 (EA 2010)?

Answer 84

It unifies anti-discrimination law, repealed many Acts (e.g. Disability, Equal Pay, Sex Discrimination etc)

Question 85

Under the Equality Act 2010, what framework was established?

Answer 85

EA 2010 established a framework of protected characteristics and prohibited conduct. Under the Act it is unlawful to discriminate against someone (or act in another manner that is prohibited) because of a protected characteristic.

Question 86

Under the EA 2010, what are the 9 protected characteristics?

Answer 86

- age; - disability; - gender reassignment; - marriage and civil partnership; - pregnancy and maternity; - race; - religion or belief; - sex - sexual orientation.

Question 87

What are the 4 main forms of prohibited conduct via the EA 2010?

Answer 87

1) direct discrimination 2) indirect discrimination 3) harassment 4) victimisation

Question 88

What is direct discrimination?

Answer 88

Direct discrimination is where person A treats person B less favourably than person A would treat others, because B has a protected characteristic. For example, it would be unlawful to refuse person B a promotion because she is pregnant.

Question 89

What is indirect discrimination?

Answer 89

Indirect discrimination is where person A adopts practices or policies which impact more severely on people (such as B) with a protected characteristic. For example, a company advertises a job requiring ten years’ experience. This could potentially be indirect discrimination on the basis of age, because it would exclude younger people who may still have the qualifications and skills necessary to do the job.

Question 90

What is harassment?

Answer 90

Harassment is where person A treats person B in a way which violates their dignity, or creates an intimidating, hostile, degrading, humiliating or offensive environment for B, in relation to a protected characteristic. For example, a person in a wheelchair visits a supermarket, and a shop assistant makes derogatory comments about them.

Question 91

What is victimisation?

Answer 91

Victimisation is treating someone unfairly if they are taking action under the Equality Act. For example, it would be victimisation for a person to be dismissed because they make a complaint of sexual harassment at work.

Question 92

Under the Equality Act, what if someone does not make reasonable adjustments for a disabled person?

Answer 92

This is unlawful under the EA.

Question 93

What else does the EA cover, on where unfair treatment may be restricted?

Answer 93

The Act also prohibits unfair treatment in the workplace; when providing goods, facilities and services; when exercising public functions; in the disposal and management of premises; in education; and by associations (such as private clubs).

Question 94

What is the Public Sector Equality Duty?

Answer 94

s149 EA 2010 imposes a particular duty on public authorities in relation to equality, the Public Sector Equality Duty (PSED). Public authorities are to have due regard to: - eliminate conduct prohibited under the Act; - advance equality of opportunity between persons who share and do not share a protected characteristic; - foster good relations between persons who share a relevant protected characteristic.

Question 95

What did the Equality Act 2006 establish?

Answer 95

The Equality and Human Rights Commission.

Question 96

What is the Equality and Human Rights Commission and what is its purpose?

Answer 96

The EHRC is a non-departmental public body with statutory powers. The commission has duties to promote equality and human rights and has a range of powers underpinning this, including: - the issuing of codes of practice, - conducting inquiries and - investigating whether persons have committed unlawful acts.

Question 97

What has the Equality and Human Rights Commission (EHRC) done?

Answer 97

Some of the commission’s work is broad ranging in nature: - for example, the commission produced a range of guidance relating to the impact of the coronavirus pandemic on equality and human rights. Other work looks specifically at particular individuals or organisations: recent investigations by the commission have included anti-Semitism in the Labour Party, and the gender pay gap at the BBC.