Semester 2 - human rights Flashcards

Question

Norwood v United Kingdom [ECtHR 2004] ## Footnote see also urgNB: Frank Hester=> racist comments of Diane Abbott Gina Miller attacked after exercising freedom of speech. Cyberflashing will become a new criminal offence.

Answer 1

: Not protected by freedom of speech Article 17 of the Convention “Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.” ## Footnote Poster on apartment window calling for the removal of all Muslims from Britain (‘Islam out of Britain – Protect the British People’). Police removed poster and Norwood complained

Answer 2

Held: The Supreme Court of the United Kingdom ruled the Employment Rights Act 199 should be read and given effect so as to extend its whistle-blowing protection to the holders of judicial office. “It is not enough to say that judges are well protected against dismissal and other disciplinary action if they speak their minds. They are not so well protected against the sort of detriments which are complained about in this case – bullying, victimisation and failure to take seriously the complaints which she was making.” [Para 26] Lady Hale ## Footnote The appellant, Gilham, is a district judge appointed in 2006 who subsequently worked contested major cost cutting reforms that were announced. The appellant raised several concerns relating to the cuts, particularly about the lack of appropriate and secure courtroom accommodation, the severely increased workload placed on the district judges, and administrative failures. On raising these complaints, she suffered various harms including bullying, ignored and undermined by her fellow judges and court staff. Gilham argued to be covered by the definition of “worker” under Section 230(3)(b) of the 1996 Employment Rights Act (the Act) to claim protection given to whistler-blowers under the Act. Section 230(3)(b) defines a worker as an individual who works under “any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.” The Ministry of Justice or the respondent objected that the appellant was not a “worker”

Answer 3

Their Lordships ruled by a majority of 3:2 (Nicholls and Hoffman dissenting) to allow Campbell’s appeal. Lord Hope and Lady Hale accorded particular weight to the photographs and accompanying captions, Lord Hope regarded them as tipping the balance between the Mirror’s Art. 10 rights and Campbell’s Art. 8 rights under the European Convention on Human Rights (ECHR) in the latter’s favour ## Footnote model had alcohol problems and was photographed by a tabloid. She claimed that privacy rights had been violated.

Answer 4

= the school was in my opinion fully justified in acting as it did. Lord Bingham (p. 34) It would in my opinion be irresponsible of any court, lacking the experience, background and detailed knowledge of the head teacher, staff and governors, to overrule their judgment on a matter as sensitive as this. ## Footnote she wanted to wear a nikab( relgious headwear) at school

Answer 5

* Ms. Nadia Eweida, Ms. Lillian Ladele, Ms. Shirley Chaplin and Mr. Gary McFarlane * 1 and 2: Wearing of cross as a British airways employee: manifestation of belief? Won the case ( but wearing a cross as a NHS: was held to be forbidden – can cause injury ) * 3 and 4: refusal to provide services to homosexual couples (both lost the case) | this case was a joint appeal concerning different case (4 defendants)

Answer 6

"... every citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will."

Answer 7

art 10 is qualified right and while it was restricted it had not been breached by the house of lords. and the restriction of Handyside was justified. ## Footnote Handyside purchased the publication rights to a book—The Little Red Schoolbook (1969)— and arranged for it to be published in the United Kingdom (at [12]). It was published in the United Kingdom in 1971. Following publication, a number of very critical reviews and news stories appeared. Warrants were issued under the Obscene Publications Act 1959 to, inter alia, seize copies of the book from Handyside’s premises (at [13–15]; on the Act see [24–26]). The following month a summons was issued under the 1959 Act against Handyside (at [16]). Handyside was found guilty (at [17]). He appealed, unsuccessfully (at [18]). The book targeted school children (at [20–23]). The domestic courts viewed it as ‘subversive’ (at [31]); were concerned that, among other things, the illegality of certain conduct was not made clear (at [32]); and that, while certain passages were ‘compassionate, understanding and valuable’, they were ‘hopelessly [damned] by [their] setting and context’ (at [34]). As such they viewed the text as likely to ‘deprave and corrupt’ within the meaning of the 1959 Act (at [33]; see also [52]). Handyside argued that the application of the law in the United Kingdom, while correct in domestic law (at [18], [44]), constituted a breach of his rights under Art. 10 and Art. 1 of Protocol 1 of the European Convention on Human Rights (ECHR) (at [41]).

Answer 8

Held: The divisional court upheld the conviction ⇒ but likely restricted to cases where the defendant has previously been responsible for public disorder/public unrest. (distinguished from Beatty) ## Footnote Facts: Mrs. Duncan was about to hold a meeting outside a training center for unemployed when she was forbidden to do so by Jones who was a police officer. The reason for the police officer's action was that a disturbance in the training center about a year earlier had been attributed to a speech made by Mrs. Duncan, and it was feared that similar results might occur again. Mrs. Duncan ignored the police officer's request and upon attempting to start the meeting she was arrested and charge with "obstructing a police officer in the execution of his duty" contrary to the Prevention of Crimes Acts, 1871 and 1885. The prosecution did not allege any obstruction of the highway, nor any incitement or provocation to commit a breach of the peace. Mrs. Duncan was convicted on the grounds that she must have known the probable consequence of her holding a meeting would be a disturbance, and that she was not unwilling that such a consequence should ensue;

Answer 9

Allowing L’s appeal and disallowing the Chief Constable’s cross-appeal: (1) The Chief Constable’s actions were not prescribed by law. They were not confined to the closely defined powers and duties created by Parliament, which were not supplemented by a general power to do whatever was reasonable in the circumstances. Neither was there a power to take action short of arrest to prevent a breach of the peace which is not sufficiently imminent to justify arrest. The duty to prevent breaches of the peace must be kept within proper bounds. (2) The Chief Constable’s actions were disproportionate because they were premature and indiscriminate. It was wholly disproportionate to restrict L’s exercise of her rights under articles 10 and 11 because she was in the company of others some of whom might, at some time in the future, breach the peace. ## Footnote **Facts:** Officers from seven police forces, acting under the direction of the Gloucestershire constabulary, stopped 3 coaches from London carrying 120 anti-Iraq war protesters in March 2003. The protesters had been planning to join thousands of people in a demonstration against the war at RAF Fairford, from which part of the US-led attack on Iraq had been launched two days before. At least some of the protesters, including L, had purely peaceful intentions, but some items suggestive of violent intent were discovered by the Police on the coaches. The coaches were returned to London under police escort, without any opportunity for all 3 of the passengers (who were designated speakers) to disembark. L sought judicial review of the actions of the Chief Constable in (1) preventing her from attending the protest and (2) forcibly returning her to London. The Divisional Court rejected her first complaint but upheld her second. The Court of Appeal upheld that decision. Both parties appealed.

Answer 10

Held: appeal allowed (Slynn, L.J.J. and Hope, L.J.J. dissenting), * a public highway was a public place where any activity which was reasonable, did not involve a public or private nuisance and did not obstruct the highway should not be regarded as a trespass. A right of peaceful assembly on the public highway could therefore exist subject to those restrictions. Limiting the lawful use of the highway to use which was "incidental or ancillary" to the right of passage would impose an unrealistic and unjustified restriction on everyday activities. It was a matter of fact and degree for the magistrates in each case whether a particular use was reasonable and did not conflict with the right to pass and repass. Per Slynn, L.J.J. and Hope, L.J.J. dissenting, that the right of the public to use the highway was restricted to the right of passage and reasonable incidental use. To go further would erode the rights of private landowners. ## Footnote Facts: J and another were involved in a peaceful, non obstructive demonstration of 21 people on part of the highway near Stonehenge, which was the subject of an order under the Public Order Act 1986 s.14A(2) prohibiting trespassory assemblies. They were arrested and convicted of trespassory assembly under s.14B(2). Their appeal against conviction was allowed by the Crown Court, which accepted their argument that a peaceful and non obstructive assembly was a reasonable use of the highway and not unlawful. The prosecution successfully appealed by way of case stated and the convictions were restored, the court holding that the public's right to use the highway was restricted to passing and repassing and any activities ancillary or incidental to that right, and that a public assembly was not incidental to the right of passage. J appealed to the House of Lords.

Answer 11

**Held:** while the protesters Article 10 and 11 rights are undoubtedy engaged, it is very difficult to see how they can prevail against the will of the landowner, when they are continuously and exclusively occupying public land, breaching not just the owner’s property rights and certain statutory provisions, but significantly interfering with the public and convention rights of others. Right to a Fair Trial The right to a fair trial was challenged based on a lapse in the initial proceedings that ultimately created an abbreviated procedure. The Court held the abbreviated procedure was appropriate to deliver prompt injunctive relief and that it was not in violation of the defendants’ art 6 right. Compliance with Articles 10 and 11 of the Convention and Proportionality The Court of Appeal held arts 10 and 11 did not provide an adequate defence for the protestors. ## Footnote **Facts:** In May 2010, a group established a camp named ‘Democracy Village’ in Parliament Square Gardens (‘PSG’) in London to hold demonstrations against the government. Over a one month period Democracy Village increased in size and became self-sustained. The Court estimated the damages to the grounds amounted to £50,000 as a result of the protestors’ occupation of PSG. On 3 June 2010, the Mayor of London claimed an order for possession of PSG on behalf of the Greater London Authority and sought an injunction against the protestors. The defendants challenged the Mayor’s statutory right to claim possession of the property and challenged the injunction as a violation of their right to freedom of expression and freedom of peaceful assembly and association under arts 10 and 11 of the *Convention*. The High Court held the Mayor was entitled to the order for possession and that the injunction was not in violation of the protestors’ rights. On appeal the defendants challenged their right to a fair trial under art 6 of the *Convention*, whether the claim for possession was properly constituted, whether the order for possession and injunction complied with arts 10 and 11 of the *Convention* in regards to proportionality, **and whether the injunction was a permissible remedy in aid of criminal law sanctions.

Answer 12

**Held:Application rejected** (1) In the circumstances P's rights under art.10 and art.11 were engaged in relation to the maintenance of the camp (2) P's argument amounted to saying that art.10 and art.11 effectively mandated the court to hold that the camp should be allowed to continue in its current form for the foreseeable future ⇒ determining the limits to the right of lawful assembly and protest on the highway was fact-sensitive and relevant factors included the extent to which the continuation of the protest would breach domestic law ## Footnote **Facts:** The applicants (P) applied for permission to appeal against a decision granting the respondent local authority orders for possession in respect of two areas of land owned by it and occupied by P, and injunctions and declarations. P and others had set up a camp, consisting of a large number of tents, next to St Paul's Cathedral in the City of London. Many of the occupiers of the camp had designated their organisation the "Occupy Movement". The majority of the area occupied by the camp consisted of highway land owned by the local authority, but also included other land owned by the church. The local authority sought orders for possession of the highway land and injunctions requiring removal of the tents and restraining the erection of tents there or on adjoining land in the future. The judge found that the local authority was entitled to possession of the areas it owned, subject to consideration of P's rights to freedom of expression and of assembly under art 10 and 11 echr. He concluded that the factors for granting the relief sought easily outweighed the factors against and gave judgment in favour of the local authority. P submitted that an order which closed down the camp was an unjustified interference with their Convention rights; alternatively the judge should have made more limited orders.

Answer 13

**held:** appeal allowed. Convention rights were able ti be read as a lawful excuse for an offence. = the Supreme Court held that section 137(1) of the 1980 Act must be read so as to comply with the ECHR ## Footnote **facts:** The Appellants took part in a demonstration protesting the Defence and Security International weapons fair at the Excel Centre. They were charged with obstructing the highway, contrary to section 137 Highways Act 1980. They were acquitted at Trial because their actions fell within the "lawful authority or excuse" defence contained in section 137 Highways Act 1980. The Director for Public Prosecutions appealed successfully by way of case stated to the High Court. The Appellants now appeal to the Supreme Court. **issue:** In criminal proceedings arising out of protest activity: (1) is deliberate physically obstructive conduct by protesters capable of constituting a lawful excuse for the purposes of s.137 of the Highways Act 1980?; and (2) what is the test to be applied by an appellate court to an assessment of the decision of the trial court in respect of a statutory defence of ‘lawful excuse’ when Convention rights are engaged in a criminal matter?

Answer 14

held: The Supreme Court has held that the clause is compatible with the ECHR. Whilst we welcome enhanced legal protections for those accessing abortion services, we are disappointed that the Supreme Court declined to find that courts are required to undertake a proportionality exercise when deciding whether to convict in circumstances where Articles 9, 10 and/or 11 are engaged. If there is no “lawful excuse” mentioned in the statute, it supposes that the statute in general is proportionate ⇒ undermines legal certainty ## Footnote **facts:** The case considers one of the Bill’s clauses, which makes it an offence for a person to act in a designated safe access zone “with the intent” of, or “reckless as to whether” their act has the effect of “influencing”, “directly or indirectly” a person attending a designated abortion clinic, their accompaniers, or people working at the premises. The Attorney General for Northern Ireland asked the Supreme Court to consider whether this constitutes a proportionate interference with the rights to freedom of conscience, expression, and assembly in Northern Ireland, as protected under Articles 9, 10 and 11 of the European Convention on Human Rights (“**ECHR**”). The Attorney General argued that the offence was incompatible with the ECHR, in particular because the clause does not include a “reasonable excuse” defence. The case does not concern wider issues regarding abortion services in Northern Ireland, or safe zones more generally.

Answer 15

The European Court of Human Rights found that the Applicants’ right to a fair trial was violated under Article 6 of the European Convention of Human Rights and that their leaflets were protected under Article 10’s freedom of expression. The European Court reasoned that since there was a vast inequality between Steel and Morris and McDonald’s, denying legal aid to the Applicants deprived them of their ability to present the case effectively, and therefore violated Article 6. In addition, the court noted that there was strong public interest in the opinions of non-mainstream groups regarding the environment and health. Lastly, the court drew upon the need for democratic societies to allow all campaign groups, including London Greenpeace, to carry out their activities. ## Footnote The Applicants, Steel and Morris, were associated with the activist collective London Greenpeace, which began an anti-McDonald’s campaign. The Applicants handed out partially libelous leaflets critical of McDonald’s, for which they were imposed with a hefty fine.

Answer 16

Appeal allowed; The order was disproportionate and unlawful ## Footnote The Treasury (T) imposed financial restrictions on Bank Mellat (BM) on the grounds that it financed Iranian nuclear weapon development BM applied for judicial review on the ground of interference with article 1 ECHR – the right to property, including peaceful enjoyment of business assets

Answer 17

Application allowed (Majority of 12 to 5) The UK’s automatic ban on prisoners’ voting violated Art.3 P1 ## Footnote An application was brought forward by Hirst, a prisoner serving a discretionary life sentence for manslaughter, which argued that the disenfranchisement of those serving a custodial sentence under the RPA 1983 s.3 violated Article 3 Protocol 1 of the ECHR (right to free elections) The United Kingdom argued that Member states had a wide margin of appreciation in determining matters under Art.3