Public Law - HRA

Question 1

Using the HRA

Answer 1

• Introduction
• Preliminaries
• Substantive violation
• Compatibility with the ECHR

Question 2

HRA - Introduction

Answer 2

• First explain why you will be referring to the cases decided by the European Court of Human Rights (“ECTHR”) in your answer as well as domestic human rights cases. For this purpose, you may want to say that the HRA has incorporated the ECHR into English law. Specifically, s. 2(1) HRA creates a duty for courts or tribunals, when dealing with questions connected to ECHR rights, to take into account any judgment or decision by the ECtHR.
• The following cases set out how ECTHR decisions are taken into account by the English courts when considering the HRA:
  
  • Alconbury
    
    • In Alconbury, the House of Lords clarified that lower courts should follow a clear and consistent line of jurisprudence with the ECtHR unless there are special circumstances or the decision is at odds with the distribution of power in the United Kingdom.
  • Kay v Lambeth
    
    • If the ECtHR has made a decision which potentially conflicts with the decision of a senior domestic court (e.g. the English Supreme Court), the decision of the domestic court should be preferred over that of the ECtHR.
  • ex parte Ullah
    
    • Finally, in ex parte Ullah, the mirror principle was established. This means that the level of protection afforded by UK courts is no less, but certainly no more than the one afforded by the ECtHR.

Question 3

HRA - Preliminaries:

Answer 3

1. You should first discuss all your preliminary issues for every potential victim of a human rights abuse. Do these at the same time.
   
   • Does the applicant have standing? He must be a victim (s. 7(1) HRA). According to s. 7(7) HRA, ‘victim’ is given the same definition as art. 34 ECHR, which Klass v Germ_an_y has defined a_s_ any natural or lega_l person “di_rectly affected” by an actual or potential breach.
2. Has the potential violation been committed by a p_ublic_ authority? (s. 6(1)) There are two types of public authorities:
   
   • ‘Core’ public authorities (s. 6(1)), i.e. governmental bodies, which are those with a statutory constitution, public funding, democratic accountability, which are funded wholly or partially through public funds, and/or which have special powers (Aston Cantlow v Wallbank). Courts and tribunals are explicitly mentioned as core public authorities (s. 6(3)(a)).
   • ‘Functional or ‘hybrid’ public authorities (s. 6(3)(b)) are obliged to uphold Convention rights only when exercising public functions, but not when exercisin_g_ private functions (s. 6(5)). Functional public bodies perform functions of a public nature (**Aston Cantlow), such as:
     
     • acting in lieu of governmental bodies or local authorities;
     • exercising statutory powers (R(Heather) v Leonard Cheshire**);
     • using public funding (YL v Birmingham CC); or
     • providing a public service (R(Weaver) v London & Quadrant Housing).
   • For example, private elderly care homes were held not to be functional public authorities, except where they act under statutory powers (YL v Birmingham CC) (although note that under the Health and Social Care Act 2008, they are now considered functional public authorities). Conversely, housing associations performing a public role have been deemed to be functional public authorities (Poplar Housing Association v Donoghue).
3. **Is the action in tim_e? Th**e case must be brought within a year of the vio_lation (unless exceptional circumstances apply and the court considers it equitable to extend time limits) (s. 7(5)).
4. The violation must have been committed within the jurisdiction of the United Kingdom (art. 1 ECHR). While the HRA has not explicitly incorporated art 1 ECHR, the House of Lords made it clear in Al-Skeini v UK* that this requirement would apply anyway. Thismeans the United Kingdom, but also includes embassies, military bases, and o**ccupied countries such as Iraq (Al-Skeini; see also **Al-Jedda v UK; Smith, Ellis and Allbutt* v M_inistry_ of Defence and Al-Saadoon & Ors v Secretary of State for Defence).**

Question 4

HRA – Substantive violation:

Answer 4

• If you are sure that the preliminary issues are not satisfied, the victim will be unable to take action, so stop here. If they have satisfied all the preliminary issues, or you are unsure as to whether they have done so, you should go on to discuss the merits of their claim. First, state that there has been a prima facie breach of a Convention right, and identify the relevant events (e.g. “V has been arrested under the Act, which could be a breach of art. 5 ECHR”).
• Then go on to discuss the substantive issues around any of the relevant articles, such as how exactly the actions violate the ECHR, and whether the public body has a valid derogation. Discussion of these issues can be found on the following pages.
• There are certain key phrases to look for when discussing, if a violation has occurred, whether the public authority has a valid derogation. For example, any d_erogations from art. 5_ ECHR must be “prescribed by law” and “in pursuit of a legitimate aim”, whil_st_ any derogations from art. 8 must be “in accordance with the law”, “in pursuit of a legitimate aim”, and “necessary in a democratic society.” You should underli_ne_ _these in the statu_te so that you don’t forget them.
• “PRESCRIBED BY LAW**”
  
  • (also ‘in accordance with the law and other similar phrases). The test for this is laid out in Sunday Times v UK. You should run through this test when assessing whether there has been a valid derogation:
    
    • i) Is there a valid legal basis (this could be primary or secondary legislation) under which the violation is enabled? In Khan v UK surveillance evidence could not be admitted because the police had no warrant in the first place.
    • ii) The legal basis must be accessible, which it will be if it has been published (if nothing is mentioned about this point, state the requirement and assume it has been published, as any statute will have been).
    • iii) The legal basis must be clear and predictable. It will be clear and predictable if an individual or their legal advisor can know in advance how and when it will be applied, such that the individual can regulate their conduct accordingly (Malone v UK).
    • iv) It must also not be possible to apply that law in an arbitrary manner, such as a broad stop-and-search power without oversight (Gillan & Quinto_n_ v UK). If such arbitrary application is possible, then this will, in and of itself, be a prima facie breach.
• “IN PURSUIT OF A LEGITIMATE AIM”
  
  • This phrase might not be used, but the legitimate aims will be listed in the Article itself. For example, art. 8(2) states “in the interests of national security, public safety… [etc)”, whilst art.5(1) lists the relevant situations. Discuss whether the public authority’s actions do in fact further one of the aims. If not, they will not be part of a valid derogation.
• “NECESSARY IN A DEMOCRATIC SOCIETY”
  
  • This was considered in Handyside v UK and Smith & Grady v UK. It is a proportionality test, which asks: is the interference in order to fulfil a social need so pressing that it outweighs the public interest in upholding that freedom? i.e. is it a proportionate way of pursuing the legitimate aim? In assessing whether the public authority’s actions were proportionate, it may be helpful to ask whether they could have achieved the same result by less intrusive means. If they could, their actions are likely to have been disproportionate.

Question 5

HRA - Article 2

Answer 5

• ARTICLE 2
  
  • Right to life: A person’s right to life must not be infringed. There are only three exceptions to this: where it is absolutely necessary to take a life and one of the three specific circumstances set out in art. 2(2) ECHR applies:
    
    • Self-defence of oneself or another (art. 2(2)(a) ECHR);
    • Lawful arrest (or the prevention of a person escaping from detention) (art. 2(2)(b) ECHR); or
    • Quelling a riot or insurrection (art. 2(2)(c) ECHR).
• The leading case on art 2 is McCann, Farrell & Savage v UK. This laid down 2 positive obligations for the State:
  
  • 1) To conduct an investigation into situations in which a public body has directly taken a life (whether that life was taken in the UK or abroad (Al**-Skeini v UK). This investigation must be:
    
    • a) Proper and effective (Jordan v UK; Kelly & Others v UK); and
    • b) Full, open and transparent. Any investigation should be conducted in public, independent of the State and involve, where possible, the participation of the deceased’s family (R (Amin) v Secretary of State for the Home Dept).
  • 2) A positive duty to refrain from unlawful killing. This duty is better expressed as ‘the duty of command, control and training’, i.e. ensuring that those who take life (such as police marksmen) are highly trained and overseen at all times.
• If the state has not followed these two obligations, then any killing i_s_ unlawful, e.g. Kelly & Others v UK, Shanaghan v UK; Jordan v UK; McKerr v UK; Osman v UK; R (Amin) v Secretary of State for the Home Dept.
• Medical law cases:
  
  • NHS Trust AVM
    
    • Withdrawing treatment from someone in a vegetative state with no chance of recovery is not a breach of art. 2.
  • R (Pretty) v UK
    
    • Assisted suicide is not allowed as a matter of policy (although the DPP is typically unwilling to prosecute in such cases).
  • Rabone v Pennine Care NHS Trust
    
    • `The state assumed responsibility for a mental patient by accepting him for treatment, so were held to be responsible for his suicide.

Question 6

HRA - Article 3

Answer 6

• ARTICLE 3
  
  • Prohibition against torture and _inhuman or degrading treatmen_t or punishment (“IDT”): Article 3 is an absolute right - it is unqualified and permits no derogations.
• How to define torture and IDT?
  
  • R (B) v Responsible Medical Officer, Broadmoor Hospital
    
    • Consider the nature, context, duration, and effects of the treatment. Torture is defined as “an aggravated, deliberate, and cruel form of punishment.”
  • Ireland v UK
    
    • Psyc_hological_ techniques such as hooding, wall-standing, noise, deprivation of food and drink (so-called ‘five techniques’) are IDT. This case offered some definitions:
      
      • _Inhuman treatm_ents cause, if not actual bodily injury, at least physical or mental suffering to the victim;
      • _Degrading t_reatments cause the victim a feeling of fear, anguish and inferiority capable of humiliating and debasing; and
      • Tor_ture_ _has a spe_cial stigma of very serious and cruel suffering.
  • Aydin; Aksoy v Turkey
    
    • Being handcuffed, stripped naked, beaten every 25 hours and electrocuted were all deemed to be torture. Likewise being raped, beaten, stripped and spun around at a rapid speed was cruel enough to be considered torture when taken together - although rape could have been considered as torture by itself.
• Prison conditions can constitute IDT:
  
  • Napier v Scottish Ministers
    
    • A cramped cell and open toilet that exacerb_ated_ the prisoner’s eczema was held to be IDT.
  • Saba v Italy and Torreggiani v Italy
    
    • A cramped cell may, in itself, amount to IDT.
  • R (Spinks) v SOS HD
    
    • Treating cancer patient in prison rather than hospital was not IDT.
  • Soering v UK
    
    • Send_ing_ _someone to dea_th row in the US, with the attendant psychological problems that would result from being on death row, would be IDT.
  • Peers v Greece
    
    • A prisoner held in a cramped cell whilst suffering heroin withdrawal, the symptoms of which went untreated, was subject to IDT.
  • Vinter and Others v UK and Hutchinson v UK
    
    • ‘Whole life orders’ for imprisonment which have no mechani_sm for review are incompatible with art 3. In Vinter the ECtHR ruled that, due to the lack of clarity in English law (because the Secretary of State had a discretionary power to reduce sentences), whole life sen_tences in the UK were incompatible with the ECHR.
    • Following a Court of Appeal ruling (AG’s ref. (No. 69 of 2013)) which disagreed with the ECTHR’s interpretation of English law in Vinter, tthe ECtHR accepted that it had misinterpreted English law and that the processes for review of whole life sentences under English law do prov_ide_ _sufficient p_rotection for human rights (Hutchinson v UK).
• Positive duties under art. 3:
  
  • Apart from the negative duty to refrain from committing IDT and torture, the State also has a positive duty to investigate behaviour amounting to a breach of art. 3. The State can be held liable for failing to investigate reported crimes perpetrated by private individuals against each other, such as the Metropolitan Police’s failure to conduct effective investigations into the crimes John Worboy (the “black cab rapist”) carried out against a large number of women over several years (Commissioner of Police of the Metropolis v DSD).
  • The State is also under a duty to prevent IDT or torture being carried out in other States (R (Q) v Sos HD). This duty is triggered if there is a high degree of probability (SH v UK) that an individual may be subject to IDT or torture.
  • In context of extradition, a State cannot allow extradition/deportation of an individual if he would face torture or IDT abroad (Soering v UK). In Chahal an Indian man was not deported because he would be persecuted by a corrupt police force.
  • However, this positive duty is not absolute: in R (Bagdanavicius) v SoS for the Home Department the UK was not responsible for the harassment that a Roma man would suffer at the hands of particular local Lithuanian residents if extradited to Lithuania - it was held that criminal harm inflicted by non-State agents outside the UK would not be relevant to art. 3 unless the State had failed in its general duty to provide reasonable protection against such criminal acts.

Question 7

HRA - Article 5:

Answer 7

• ARTICLE 5
  
  • Right to Liberty and Security.
  • No person can be deprived of their liberty except in cases of lawful arrest (art. 5(1)(a-f)), and in accordance with a procedure prescribed by law (see the Sunday Times v UK criteria set out in Step 3 above).
• What is a ‘lawful arrest or detention’?
  
  • Johnson v UK
    
    • When a mental patient was detained because of a lack of treatment facilities, this was held to be an unlawful detention because the state was at fault.
  • Fox, Campbell & Hartley v UK
    
    • Not lawful to arrest someone merely “on suspicion” of being a terrorist (but o_n_ _“reasonable s_uspicion” with evidenced reasons would be lawful).
  • Margaret Murray v UK
    
    • There is no need for sufficient evidence in order to merely arrest someone.
  • R(W) v Doncaster MBC
    
    • It is lawful to arrest someone for breaking bail conditions.
  • R (Saadi) v Sos for the Home Department
    
    • It is lawful to detain asylum seekers for a limited period to ensure that they are genuine.
  • Serdar Mohammed v MOD; Al-Waheed v MOD
    
    • British forces had legal power to detain individuals in Iraq and Afghanistan for periods exceeding 96 hours where this was necessary for imperative reasons of security. However, the MOD had a duty to provide adequate procedural safeguards to detainees at all times in order to prevent their detention becoming arbitrary.
• Control orders may amount to a deprivation of liberty. You should compare the facts of the following cases to those in the scenario:
  
  • Guzzardi v Italy
    
    • An 18 _hour curfe_w was held to be a breach of art 5.
  • SoS v AP
    
    • Confining someone to a flat 150 miles from his family for 16 hours a day was held to be a breach of art 5.
  • Re J
    
    • The individual was subject to ‘harsher conditions than a prisoner in an open prison’ and was held there to be a breach of art 5.
  • SoS for the Home Department VE
    
    • The individual was allowed to leave his home for up to 12 hours a day, without any geographical restriction. This was _not h_eld to be a breach of art 5.

Question 8

HRA - Article 5(2)-(5): outline the procedures necessary to ensure that an arrest is lawful:

Answer 8

• Art. 5(2)
  
  • The detainee must be informed promptly and clearly of the reasons for an arrest - so that they can challenge them, e.g. Fox, Campbell & Hartley v UK.Full reasoning is not required when an individual is arrested, provided it isgiven at a later stage_, an_d it may also become clear from questioning him (Fox,Campbell & Hartley).
• Art. 5(3)
  
  • The detainee must be brought promptly before a judge - so that confessions are not forced out of people by way of indefinite detention, e.g. Brogan v UK, in which four days and six hours was too long.
• Art. 5(4)
  
  • Detainee is entitled to challenge the lawfulness of his arrest, e.g. Thompson & Ven_ables_ _v UK; Sos for_ the Home Department v AF - not legal to refuse to show evidence as this would prevent the defendant from challenging the evidence. A 21 month delay in reviewing the victim’s application was too long (Hirst v UK).
• Art. 5(5)
  
  • Compensation is available for victims of breaches of the correct arrest procedures.

Question 9

HRA - Derogation from Article 5

Answer 9

• Derogations from art. 5 are possible under art. 15 ECHR, e.g. A & Others v SOS Home Dept. - indefinite detention pending deportation was not a proportionate measure, so the Court did not allow the Govt.’s derogation.
• Does UK legislation conflict with art 5? Compare the time limits below with those in the exam question and decide whether they appear compatible or not with the ECHR:
  
  • Sections 41-44 Police and Criminal Evidence Act 1984 (“PACE”)
    
    • The limit to detention without charge is generally 24 hours (s. 41(7) PACE); beyond this up to 36 hours of detention must be authorised by a Superintendent or higher ranking officer (s. 42(1) PACE); beyond 36 hours must be authorised by a Magistrate’s Court (s. 43(4) PACE); up to a maximum of 96. hours to charge or release (s. 44(3)(b) PACE).
  • Sections 23-25 Terroism Act 2000
    
    • A person detained under this act may be held without charge for up to 48 hours (s 41(3) TA). A senior judge can extend this period up to 7 days (para 29(3), sch 8 TA). This can be further extended for up to 7 days, up to a maximum of 14 days detention without charge (sch 8 TA; s 57 Protection of Freedoms Act)
• Is police ‘ketting’ of crowds a restriction of art. 5 freedom? Only if proportionate:
  
  • Austin
    
    • Kettling judged to be proportionate response to May Day protects because of the risk of rioting
  • Moos v MPC
    
    • But kittling a small peaceful climate camp was not proportionate

Question 10

HRA - Article 6

Answer 10

• Article 6:
  
  • Right to a Fair Trial, and the Presumption of Innocence (art. (6(2); R (Wright and Others) v SOS Health). Where liberty is at stake (e.g. possibility of imprisonment) and the matter merits it, there is a right to free legal advice (Benham* *v* *UK)**.
• Limited by practicalities in art. 6(1): legal aid, evidence, witnesses.
• Requires independence and impartiality (art. (6(1)):
  
  • McGonnell v UK
    
    • Whe_re_ the same people were on an appeal board in respect of a Guernsey planning application as made the original decision, that was held to be an unfair procedure (and also contrary to the separation of powers).
  • R v Stow
    
    • This case concerned the influence of the prosecutor. It was held that a military tribunal, or “court martial”, must fulfil same req_uirements_ of fairness as are mandated for civil courts.
• Trial is required to be within a reasonable time:
  
  • HM Advocate v JK
    
    • A 27-month delay in a 14 year-old’s trial was too long.
• In civil cases, the matter must have been determined before art. 6 may be relied on (Bank Mellat v HM Treasury (No. 2)), whereas in criminal cases art. 6 is engaged as soon as an individual is charged.
• A fair trial must follow a fair procedure (art. 6(1) & (3)). Art. 6(3)(a)-(e) list the safeguards which must be followed.
• Detainees have a right to silence (art. (6(2))
• Admissibility of evidence
• Control orders in the context of art. 6
• Deportation in the contex_t of_ art. 6

Question 11

HRA - Article 6 - Detainees have a right to silence

Answer 11

Article 6(2):

• John Murray v UK
  
  • Right to silence is not an absolute right - under certain circumstances adverse inferences may be drawn against a defendant who refuses to answer any questions.
• Saunders v UK
  
  • Though someone cannot be convicted solely on the basis of silence.
• Condron v UK
  
  • If a lawyer has advised silence the Court cannot draw adverse inferences from that.
• John Murray v UK
  
  • Adverse** **inferencesfrom a decision to remain silent cannot be drawnwhe_re_thedefendant remains silent due to a lack of legal advice and representation.

Question 12

HRA - Article 6 - Fair Procedure

Answer 12

• A fair trial must follow a fair procedure (art. 6(1) & (3)). Art. 6(3)(a)-(e) list the safeguards which must be followed. The following cases provide illustrations of those safeguards:
  
  • Airey v Ireland
    
    • Legal advice should be free where the applicant cannot afford it and the interest of justice requires it (art. 6(3)(c)). In any case individuals must have effective access to court and legal representation (art. 6(3)(b)).
  • John Murra**y v UK
    
    • Unlawful to deny access to legal advice (s. 58 PACE). Note that it is lawful to delay advice for 36 hours to gather evidence in some circumstances, if an of_ficer is authorise_d by his superintendent for good reasons under PACE, and under Sch. 8, para. 7 TA 2000 it is lawful to delay for up to 48 hours for the same reasons. Moreover, a right to fair trial may extend also to pre-trial situations (for example post-arrest questioning). The rationale for this extension is because denial of, for example, legal representation during the pre-trial situation may put the suspect in an unfair position throughout the entire legal process. Denying access to legal advice breached art. 6(1) when read with art. 6(3)(c) (John Murray v UK).
  • Brennan v UK
    
    • The presence of a police officer whilst the defendant talked to solicitor prejudiced the trial process. This breached art. 6(1) when read with art. 6(3)(c).
  • Daly v UK
    
    • Any interference must be proportionate - so consider what a proportionate alternative to the public authority’s actions would have been.

Question 13

HRA - Article 6 - Admissibility of evidence

Answer 13

• R v Horncastle
  
  • The appellants had been convicted on hearsay evidence (witness statementsfromsomeonewho had later died and someone who had failed to attend the trial due to fear). Their appeal was quashed on the grounds that such evidence was admissible at the trial judge’s discretion. P_rovisions_ concerning the admissibility of evidence could be applied differently by the English Court under ‘the margin of appreciation’ (see also Al-KhawajaandTaheryvUKwhere it was held that a conviction can be based largely on the testimony of an a_bsent_ witness if there are very strong procedural safeguards.
• Re MB
  
  • Those subject to control orders must be able to challenge them, and should be given access to the closed evidence against them, if a fair trial is not otherwise possible.
• Saunders v UK
  
  • Cannot convict on the basis of silence alone, cannot be made to incriminat oneself, or rely on forced confessions (confirmed in Austria v Italy).
• RVA (Complainant’s Sexual History)
  
  • The Youth Justice and Criminal Evidence Act 1999 did not allow evidence of sexual history in rape trials. Under s. 3 HRA the court held that it could be allowed where it was so relevant to the issue of consent that it would have meant an unfair trial in breach of art. 6(1).

Question 14

HRA - Article 6 - Control orders in the context of art. 6

Answer 14

• Re MB
  
  • Control orders do engage art 6 as they deal with a determination of an individual’s civil rights and obligations.
• SoS for the Home Department v HF
  
  • Allegations to justify control orders must not be drafted in general terms, but need to be as specific as possible.

Question 15

HRA - Article 6 - Deportation in the context of art. 6

Answer 15

• Othman v UK
  
  • The applicant, Abu Qatada, was threatened with deportation to Jordan where he would face trial. There was a real risk that he would be co_nvicted_ on the basis of evidence extracted through torture. The ECUHR held that a state cannot deport an individual to a country w_here_ there is a real risk that evidence abstracted through torture would be used against them in a trial.