W7 - Human Rights Flashcards
Different types of right
Absolute - rights that the state has to observe strictly; cannot be interfered with by the state
Limited - rights can only be limited in clearly defined and finite situations
Qualified rights - rights that the state has flexibility to interfere with (balance between the rights of the ind and the wider public interest); any interference with the right has to be prescribed by law, in pursuit of a legitimate aim, necessary in a democratic society (proportionate); must not be applied in a discriminatory fashion (art 14)
Absolute rights
Art 2 - right to life
Art 3 - freedom from torture, inhuman and degrading treatment
Art 4 - freedom from slavery
Art 6 - right to a fair trial (but limited as to the trial being public)
Art 7 - punishment according to existing law
Art 12 - absolute (but according to national law)
Limited rights
Art 5 - liberty and security of the person (exceptions in relation to lawful arrest and detention)
Qualified rights
Art 8 - respect for family and private life
Art 9 - freedom of thought (absolute in terms of thought, qualified in terms of its manifestation)
Art 10 - freedom of expression
Art 11 - freedom of assembly and association
Art 1 Protocol 1 - right to peaceful enjoyment of possessions
Prescribed by law
- law must be accessible (in published form) and sufficiently precise to enable the citizen to regulate their conduct
- Sunday Times v UK
Necessary in a democratic society
- must be a ‘pressing social need’
- must be proportionate (does not go further than what is necessary)
- Smith and Grady v UK
- wide margin of appreciation in judging necessity aka ECtHR will respect judgement of MSs as to what the public interest requires (Handyside)
- qualities of a ‘democratic society’ include tolerance of minority opinions and lifestyles (despite majority view in a country - Dudgeons)
- proportionality test in Bank Mellat
Derogations
Art 15 - ‘in time of war or other public emergency threatening the life of the nation’
No derogation possible in respect of arts 3, 4, 7, 2 (except of deaths resulting from lawful acts of war)
s14 HRA - procedure for enacting a derogation as part of UK law
s1 HRA - convention rights are to be read subject to any such derogation
HRA
s1 - gives effect to convention rights
s2 - domestic courts should ‘take into account’ judgements of the ECtHR but are not bound by them
s3 - ‘so far as it is possible to do so’
s4 - declaration of incompatibility (not binding but puts pressure on the gov)
s6 - unlawful for public authority to act in a way that is incompatible with the convention rights (Beer- public authority and public body are synonymous)
s7 - must be a ‘victim’ of the unlawful act => ind or organisation must be directly and personally effected; pressure groups cannot qualify (Adath Yisroel Burial Society))
s8 - damages may be awarded if it is ‘necessary to afford just satisfaction’
s10 - fast-track procedure for changing legislation (remedial order to change UK law)
s19 - statement of compatibility
Role of judges
- Lord Steyn - HRA is our BoR
- Lord Steyn - ‘in law context is everything’ (Daly)
- two exceptions to PS are impact of joining the EU and the right of judges to make declarations of incompatibility under the HRA 1998 (imp as P increasingly an ‘elective dictatorship’)
- judges uphold RoL (‘main controlling factor in our constitution’ -Jackson)
Art 2
positive obligations on the state (McCann, Farrell and Savage):-
- to conduct an investigation into situations where a public body has taken life
- places on the state a positive duty to refrain from unlawful killing (Osman)
- Embryos (Evans) and foetuses (Wardship) have no such right to life
- assisted suicide is not allowed (Pretty)
- a decision to end one’s life must follow a procedure capable of reflecting the autonomy of the ind involved, otherwise art 2 engaged (Nicklinson)
- exception to art 2 in art2(2)(a) where it ‘results from the use of force which is no more than absolutely necessary, in defence of any person from unlawful violence’ (Patricia Armani da Silva; followed by McCann)
=> breach of art 2 may give legal remedy where a criminal prosecution would not succeed
Art 5
Ensures no-one is deprived of liberty in an ‘arbitrary fashion’ aka except in cases of lawful arrest (art 5(1)(a-f))
Necessary procedures:
- giving of reasons for arrest and charge (art 5(2))
- prompt and fair trial (art 5(3))
- availability of JR of the legality of the decision (art 5(4))
- right to compensation for breach (art 5(5))
- ‘lawful arrest of detention’ does not extend to the indefinite detention of terrorist suspects (Belmarsh)
- control orders as deprivation of liberty (Guzzardi; Re JJ) - key elements of confinement is curfew
- provided restraint is reasonable and proportionate, resorted to in good faith and necessary to prevent serious public disorder/public safety, it will not requires justification under art 5(1)(a-f) - Austin
- PACE 1984 powers exercisable when police have ‘reasonable grounds’ to believe that an arrest is necessary for one of the reasons specified
Art 6
- requires independent and impartial trial aka freedom from political and executive bias (Findlay; Anderson)
- evidence which has been obtained by breaching a convention right (eg art 8) did not preclude the evidence from being permissible (Khan)
- legal advice should be free if applicant cannot afford it and interests of justice requires it - effective access to court and legal representation (Airey)
- person under control order must be given sufficient info about the case against him to enable him to give effective instructions to the advocate (Re MB)
Police and Criminal Evidence Act 1984
- exercisable where police have ‘reasonable grounds’ to believe that an arrest is necessary for one of the reasons - reflected in art5(1)(c)
- s36: custody officer responsible for authorising and reviewing the detention of arrestees
- s37: detention authorised if necessary to secure or preserve evidence, or obtain evidence through questioning
- s76: criminal court must exclude a confession if obtained by oppression
- s78: court has a discretion to exclude any evidence in order to ensure a fair trial
Proportionality
- doctrine ensures that there is a fair balance between pursuing a legitimate aim and the protection of convention rights
- 4 part test in Bank Mellat:
1. whether the objective of the measure is sufficiently important to justify the limitation of a convention right
2. whether then measure is rationally connected to the objective
3. whether a less intrusive measure could’ve been used
4. whether a fair balance has been struck between the rights of the ind and the interests of the community
Art 8
Guarantees respect for: private life, family life, home and correspondence
Private life:
- does not protect values or sporting preferences of the appellant in a public setting (Countryside Alliance)
- Includes image rights incl for celebrities (Von Hannover) and at a specific event where rights may have been exclusively sold (Douglas and Zeta; Campbell)
- blogging is a public activity, so does not have a reasonable expectation of privacy (Author of a blog)
Correspondence:
- acceptable to randomly open prisoners’ letters for spot checks (Campbell) but not in the prisoner’s absence (Daly)
