SBAQ- DUE PROCESS UNDER THE ECHR Flashcards
Question 1
Which of the following is NOT a requirement under Article 5 of the ECHR?
1. The detained person must be brought before a court promptly.
2. The detained person must be allowed to inform relatives of their whereabouts within a reasonable time.
3. The detained person must be able to challenge the legality of their detention.
4. The detained person has a right to compensation for any breach of Article 5.
Feedback
That’s right – Answers A,C and D are all requirements set out in Article 5, but these requirements do not include that the detained person must be able to inform their relatives
Question 2
Jane is bringing a claim for breach of contract against KitchenKraft as she claims the units they supplied were defective.
Is the following statement true or false?
Article 6 provides that Jane must have a fair hearing.
1. True
2. False
Feedback - TRUE
Well done! A breach of contract claim will involve ‘civil rights and obligations’ and so Jane will be entitled under Article 6 to a fair hearing.
Question 3
Phil has been charged with fraud.
Is the following statement true or false?
To be acquitted at trial Phil will need to give evidence that he did not commit fraud.
Feedback -.FALSE
That’s right. The state must prove that Phil is guilty under Article 6 – Phil does not have to prove his innocence. This means that Phil does not need to give evidence at his trial to be acquitted.
Question 4
Which of the following statements is INCORRECT?
1. Article 6(1) of the European Convention on Human Rights states that the press and public may be excluded from all or part of a trial in the interests of public order.
2. Article 6(1) of the European Convention on Human Rights states that the press and public may be excluded from all or part of a trial in the interests of the economic well-being of the country.
3. Article 6(1) of the European Convention on Human Rights states that the press and public may be excluded from all or part of a trial in the interests of juveniles.
4. Article 6(1) of the European Convention on Human Rights states that the press and public may be excluded from all or part of a trial in the interests of national security.
Feedback - 2
Well done! Article 6(1) allows a court to exclude the press and public from all or part of a trial for several reasons, which include the interests public order, juveniles or national security. It contains no reference to the economic well-being of the country.
Question 5
Article 6 of the ECHR states that an individual charged with a criminal offence is entitled to free legal assistance in which of the following circumstances?
1. If the individual has not sufficient means to pay for legal assistance and he may lose his liberty if convicted.
2. If the individual has not sufficient means to pay for legal assistance and the interests of justice so require.
3. If the individual is to be tried before the Crown Court.
4. If the individual is not in gainful employment.
Feedback - 2
Well done - An individual must be provided with free legal assistance if he does not have sufficient means to pay for this, and the interests of justice so require.
Question 6
Mo has been charged with a strict liability offence. He argues that he did not intend to commit the offence and that to convict him would breach Article 6 ECHR. Which of the following statements is true?
1. It would breach Article 6 to convict Mo of a strict liability offence.
2. It would not breach Article 6 to convict Mo of a strict liability offence provided the offence was serious.
3. It would not breach Article 6 to convict Mo of a strict liability offence provided that Mo had received legal advice and representation.
- It would not breach Article 6 to convict Mo of a strict liability offence provided that this was reasonable.
Feedback - 4
Well done! Strict liability offences do not automatically breach Article 6 and the presumption of innocence. However, such offences must be reasonable (Salabiaku v France).
- Question 7
The Caged Bird Act 2010 (fictitious) states that it is an offence punishable by a fine of up to £1000 to keep a bird in a cage. Two months ago Jay was charged with an offence of keeping a bird in a cage. A month ago the fine for an offence under the Caged Bird Act was increased to £5000. Jay appears in court today, is convicted and receives a fine of £2500.
Is the following statement true or false:
The fine Jay receives breaches Article 7 ECHR
Feedback - TRUE
That’s right! The Statement is true. Jay would be receiving a heavier penalty than was applicable at the time he committed the offence two months ago (when he could only have received a maximum fine of £1000). This breaches Article 7.
Question 8
Contempt of Court may be either civil contempt or criminal contempt.
Is the following statement true or false:
It is an example of civil contempt of court to publish an article which interferes with the course of justice.
1.
True
2.
False
Feedback - FALSE
Unfortunately, that’s not right. It is contempt of court to publish an article which interferes with the course of justice, but this is a criminal offence not a civil matter.
Question 1
Article 5 of the European Convention on Human Rights provides a right to security and liberty of the person. However, Article 5 states that people can be lawfully deprived of their liberty in certain circumstances.
Which of the following is NOT a lawful reason for the deprivation of liberty under Article 5(1) of the ECHR?
1. The lawful detention of a person after conviction by a competent court.
2. The lawful arrest or detention of a person for the purpose of bringing them before the competent legal authority on reasonable suspicion of having committed an offence.
3. The lawful arrest or detention of a person for non-compliance with the lawful order of a court.
4. The lawful detention of a person for the purpose of ensuring they have necessary medical treatment which they have refused to have.
5. The lawful detention of a person in order to deport them.
Feedback - 4
Well done - that is the correct answer. Answers A, B, C and E are listed in Article 5(1) as lawful limitations on the right to liberty. Article 5(1)(e) does permit the lawful detention of persons for the prevention of the spreading of infectious diseases, but there is no wider requirement which permits detention for the purpose of necessary medical treatment which the person has refused to have
- Question 2
A robbery takes place. The police wish to interview a man who they know has witnessed the robbery and may be able to identify the participants. The man is unwilling to answer police questions, but is told that he must come to the police station or he will be arrested. The police escort the man to the station where he is briefly questioned before being escorted to the visitors’ lounge. He is given refreshments and told he cannot leave until the police have finished questioning him. He is interviewed seven hours later. He tells the police everything he knows and is then released. The man applies to court claiming his right to liberty and security under Article 5 of the European Convention on Human Rights (ECHR) has been breached.
Which of the following statements best explains whether a court will find that the man’s right to liberty under Article 5 ECHR has been breached?
1. The court will find that the man was not deprived of his liberty as he was not placed in a police cell at any time.
2. The court will find that the man was not deprived of his liberty as he was detained at the police station for less than 24 hours.
3. The court will find that the man was not deprived of his liberty as the actions of the police were lawful and proportionate.
4. The court is likely to find that the man has been deprived of his liberty and this deprivation was not within the limitations permitted under Article 5.
5. The court is likely to find that the man has been deprived of his liberty but this deprivation was within the limitations permitted under Article 5.
Feedback - 4
That’s right! The court is likely to find that the man has been deprived of his liberty as he has been coerced into going to the police station and held there for a significant period of time. The detention does not fall within any of the six limitations in Article 5(1) since he has not been convicted of an offence; has not been arrested on suspicion of an offence, to prevent him committing an offence or to comply with a court order; is not a minor or mentally ill and being detained for protection and the case has nothing to do with asylum deportation, or extradition – so E is wrong.
A is wrong as it is not necessary for someone to be placed in a cell to be deprived of their liberty (Guzzardi).
There is no strict definition of ‘deprivation of liberty’ so that, although duration will be taken into account, there is no rule that it needs to be for at least 24 hours (Austin v UK) so B is wrong.
C is wrong as the actions of the police are not lawful as the man was not detained under due process of law.
Question 3
The police receive an anonymous tip-off that Bert is a member of an armed gang which recently stole a valuable Picasso painting. At noon on Tuesday PC Jones sees Bert walking towards his home and arrests him. At the police station the custody sergeant tells Bert that he is being detained without charge as this is necessary to obtain evidence of the offence by questioning him. Bert is interviewed and makes no comment to all questions asked by the police. He is then placed in a cell. The police spend the day investigating the armed robbery but do not interview Bert further. On Wednesday morning the custody sergeant authorises Bert’s continued detention. It is now Thursday.
Which of the following statements best represents whether Bert is lawfully detained by the police?
1. Bert is being detained unlawfully as the police did not have a reasonable suspicion that he was involved in the theft of the painting.
2. Bert is being detained unlawfully as he has been detained for more than 24 hours.
3. Bert is being detained unlawfully as he has been detained for over 24 hours without this being authorised by a police officer of the rank of superintendent or above.
4. Bert is being detained lawfully as the offence is an indictable one and the investigation is being carried out diligently and expeditiously.
5. Bert is being detained lawfully as the maximum length of detention is 96 hours when the offence is an indictable one.
Feedback
The correct answer is C as detention for over 24 hours (up to 36 hours) must be authorised by a police officer of the rank of superintendent or above. A custody sergeant is not of sufficient rank.
A is wrong as, although it may be debateable whether the police have a reasonable suspicion, they may have, and so this is not the best answer.
B is wrong as suspects can be detained for over 24 hours provided that certain conditions are fulfilled.
D is wrong as, although the offence is an indictable one and it may be being investigated diligently and expeditiously, this is uncertain and, in any event, the correct authorisation has not been given.
E is wrong as, although the maximum length of detention is 96 hours where certain conditions are fulfilled, including that the offence is an indictable one, this on its own is not sufficient
Question 4
A man is under arrest for suspected theft of jewellery. While he is at the police station the police search his girlfriend’s property using a search warrant. The search warrant has been obtained improperly and they have no power to carry out the search. During the search the police discover some jewellery which matches the description of the stolen property. The man is charged with theft of the jewellery.
Can the jewellery be given in evidence at the man’s trial?
1. No, because the search of the girlfriend’s property was unlawful.
2. No, because the jewellery was found on the girlfriend’s property rather than on the man’s property.
3. No, because to do so would mean that the man would not have a fair trial.
4. Yes, because it is irrelevant that the search warrant was obtained improperly.
5. Yes, because the jewellery is relevant evidence and there is no reason to question its reliability.
Feedback
The correct answer is 5 as evidence that is unlawfully obtained is still admissible provided that it is relevant to an issue and is not unreliable, so that the defendant will still have a fair trial (Khan v UK). As the trial will be deemed to be fair, C is wrong.
Although the search of the property was unlawful, this alone will not mean the evidence is inadmissible so A is wrong.
B is wrong as it is irrelevant where the jewellery was found as long as it is relevant evidence.
D is wrong as it is not irrelevant that the evidence was obtained improperly, however this fact alone will not lead to such evidence being ruled inadmissible.
Question 5
A woman has been arrested for theft. She is a drug addict and soon begins to suffer withdrawal symptoms and to feel very unwell. She tells this to the police who reply “well, if you admit you stole the goods, we can release you straightaway”. The woman confesses to the theft and is released. The police intend to use the woman’s confession at trial. The woman argues that this would breach her right to a fair trial under Article 6 of the European Convention on Human Rights.
Which of the following best reflects whether the woman’s confession will be excluded from the evidence given at trial?
1. The woman’s confession will not be excluded as it was freely given.
2. The woman’s confession will be excluded as she is a drug addict and therefore a vulnerable person.
3. The woman’s confession will not be excluded as the police have not acted oppressively.
4. The woman’s confession will be excluded as it is likely to be unreliable.
5. The woman’s confession may be excluded as it is likely to be unreliable.
Feedback
The correct answer is D. The confession will be excluded as it is likely to be unreliable as the woman is suffering withdrawal symptoms and has received an inducement to confess by being told she will be released (s76 PACE).
A is wrong as it is arguable whether the confession is ‘freely given’ and, even if it is, under the circumstances it is likely to be unreliable as explained above.
B is wrong as the crucial question is whether the confession is unreliable rather than whether the woman is a vulnerable person.
C is wrong as, under s76 PACE it is not necessary for the police to have acted oppressively.
E is wrong as the court is under a duty to exclude unreliable evidence, it does not have discretion.
Question 6
A woman is arrested on suspicion of theft of a debit card. She was arrested after a passer-by reported to the police that a woman was acting suspiciously at a cashpoint machine. The card the woman had inserted into the cashpoint machine did not belong to the woman. At the police station the woman was offered legal advice but refused this and gave a ‘no comment’ interview. At court the woman explained that the card belonged to her friend who had asked her to withdraw some money for her. The police have evidence that the friend had reported the card as stolen, although had subsequently supported the woman’s story.
Will the court be able to draw adverse inferences from the woman’s failure to account for having the card in her possession when interviewed by the police?
1. Yes, because adverse inferences can be drawn from the woman failing to account for having the debit card in her possession when questioned by the police as theft is an indictable offence.
2. Yes, because adverse inferences can be drawn from the woman failing to account for having the debit card in her possession when questioned by the police as the police have other evidence which implicates her.
3. No, because adverse inferences cannot be drawn from an arrested person remaining silent when questioned about an offence by the police.
4. No, because adverse inferences cannot be drawn since the woman has a cogent explanation for having the card in her possession.
5. No, because adverse inferences cannot be drawn from the woman failing to account for having the debit card in her possession when questioned by the police as she had not received legal advice.
Feedback
B is the correct answer as adverse inferences can be drawn by the court when a defendant fails to account for an object in their possession when asked to do so by the police provided that this would not lead to them being convicted on the basis of this evidence alone (Murray v UK).
A is wrong because it is irrelevant that the offence is an indictable one.
C and D are wrong as adverse inferences can be drawn - the inference being that at the police station the woman did not have an innocent explanation as to why she had the debit card (and this was concocted (with the friend) at a later date).
Adverse inferences can be drawn where the defendant has not received legal advice, as long as she has been offered such advice, so E is wrong.
- Question 7
Flora is a committed ‘anti-vaxxer’ who has been arrested after violence broke out at a recent protest outside a vaccination clinic. She was subsequently charged with a serious public order offence and is due to be tried at Notown Crown Court next week. Gordon is the editor of Daybreak News, a national newspaper. Daybreak News has published a series of editorials criticising anti-vaxxers. Today, Daybreak News published an editorial which contained the following:
‘The desperate Anti-vaxxers have now turned to violence to further their cause. Flora Foy, a well-known Anti-Vaxxer is due on trial next week after participating in the violence at the Notown vaccination clinic. Daybreak readers, we call on you to do your duty and ensure that Flora is convicted so that she will hopefully spend some time in prison where she can contemplate the folly of her anti-vaxxer beliefs.’
Which of the following statements best explains Gordon’s potential liability if he is prosecuted for contempt of court?
1. Gordon can be found guilty of contempt of court under the Contempt of Court Act 1981 under the strict liability rule embodied in the Act as any contempt is unintentional.
2. Gordon can be found guilty of contempt of court under the Contempt of Court Act 1981 under the strict liability rule embodied in the Act as the Contempt of Court Act abolished common law contempt.
3. Gordon can be found guilty of contempt of court under the Contempt of Court Act 1981 under the strict liability rule and at common law for intentional contempt of court.
4. Gordon can be found guilty under the Contempt of Court Act 1981 as the Contempt of Court Act 1981 makes intentional contempt of court a criminal offence.
5. Gordon can be found guilty of contempt of court under the Contempt of Court Act 1981 and at common law for unintentional contempt of court.
Feedback
the correct answer is C. The article in Daybreak News appears to be an intentional attempt to influence potential jurors to find Flora guilty and thus interfere with the administration of justice which would be an offence at common law and A is wrong. The article will create a ‘substantial risk of serious prejudice’ to the proceedings which are active (Flora has been arrested and charged). None of the defences in the Contempt of Court Act would apply and the risk of prejudice is not merely incidental to a general discussion of matters of public interest so s5 will not apply. The offence under the Contempt of Court Act has also been committed.
B is wrong as the Contempt of Court Act did not abolish the common law offence of intentional contempt.
D is wrong as the Contempt of Court Act makes unintentional contempt an offence, not intentional contempt, which is an offence at common law.
E is wrong for both common law contempt (which is intentional) and contempt under the Contempt of Court Act which covers unintentional contempt.
