FCJ 4_human Rights

8/11/2019 FCJ 4_human Rights

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Foundations of CriminalJustice

LAWS 10421Lecture 5Human Rights

Dr Hannah Quirk


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Outline of issues

Introduction

Rights at common law

European Convention on Human Rights Human Rights Act 1998

Interaction of common law and ECHR


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Rights before the HRA

UK has no written constitution

Bill of Rights 1689 (An Act Declaring the Rightsand Liberties of the Subject and Settling the

Succession of the Crown) has no special status Residual freedoms (can do anything not against

the law)

Did not protect individuals against the state

Parliamentary supremacy, so nothing to preventActs that infringed an individuals rights

Universal Declaration on Human Rights 1948


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Human Rights before the Human

Rights Act 1998

Wednesbury unreasonableness :it is so unreasonable that no

reasonable authority could ever have come to

it (Associated Provincial Picture Houses vWednesbury Corporation[1948] 1 KB 223,230, per Lord Greene MR)

Shortcomings in domestic law e.g. right toprivacy Malone v UK(1984) 7 EHRR 14


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Council of Europe

Established post WW2

Signed in Rome 1950

European Court of Human Rights

Strasbourg

States can claim against each other /individual claims against state

47 members
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European Court of Human Rights andECHR are separate from the EU and ECJ

UK signed but did not incorporate

Could not be enforced by domestic courts

After 1966, individual could take case to

ECtHR Expensive, lengthy, embarrassing for govt

Labour manifesto 1997


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European Convention

on Human Rights

Art. 2 right to life*Art. 3 freedom from torture *Art. 4 freedom from slavery*Art. 5 right to libertyArt. 6 right to a fair trialArt. 7 bans retrospective criminal law*Art. 8 right to privacyArt. 9 freedom of thought/conscience/religion

Art. 10 freedom of expressionArt. 11 freedom of associationArt.14 prohibition of discrimination


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Derogation

Opt-outs (Art 15) in time of war or otherpublic emergency threatening the life ofthe nation

Internment in Northern Ireland


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Margin of Appreciation

the degree of latitude which signatoryStates are permitted in their observance ofthe convention (T. Jones The Devaluation

of Human Rights under the EuropeanConvention [1995] Public Law430)

Important where no European consensus

e.g. pornography, abortion


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Proportionality

Is the legislative objective sufficientlyimportant to justify limiting a fundamentalright

Are the measures designed rationallyconnected to it

Are the means no more than is necessaryto accomplish the objective?


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Without right to life, all other rights areirrelevant.

Broad generic statement that then

establishes limitations. Not simply a negative right preventing the

State from killing people. includes unintentional killing.

imposes positive duties on States topreserve life and to investigate deaths.

Article 2: Everyone's right to life shall

be protected by law.


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Those in custody

Keenan v UK(2001) persons in custodyare in a vulnerable position and that theauthorities are under a duty to protectthem

Paul & Audrey Edwards v UK (2002)son murdered by cell mate withschizophrenia


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Undertake effective investigations into

killings

Article 2 + Article 1 (to secure rightsand freedoms in the Convention)

requires by implication that there

should be some form of effectiveofficial investigation when individualshave been killed as a result of the useof force by, inter alia, agents of theState. (Ergi v Turkey (2001) 32EHRR 13)
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Death Penalty

Optional Protocol 6 to the ECHRabolishes the death penalty apartfrom certain acts during war, or

where war is imminent. Optional Protocol 13 removes war

exception
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Article 3

No one shall be subjected to torture or toinhuman or degrading treatment orpunishment.

Article 3 is an absolute right in allcircumstances. No limitations within the

Article and no derogations under Article 15


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Ireland v UK(1978) 2 EHRR 25

5 techniques (hooding, wall standing,white noise, sleep deprivation, food

and drink) ECHR found did not constitute torture.

Bar has been lowered since.


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Extradition or deportation

the activities of the individual in question,however undesirable or dangerous, cannotbe a material consideration. (Chahal v UK,

1996 D v UK(1997) 24 EHRR 423HIV+

death penalty does not necessarily breach

Art. 3 but: death row syndrome may(Soering v UK, 1989)


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defines circumstances where it maybe curtailed

essential conditions to control power can be derogated from in

national emergency

Article 5: The Right to Liberty and the

Security of the Person
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Article 5(2) Must be informed promptly, in

language S understands, of reasons forarrest and any charges.

Article 5(3) brought promptly before ajudge and entitled to trial within areasonable time, or release pending trial.

Article 5(4) - entitled to take proceedingsby which the lawfulness of detention shallbe decided speedily by a court and releaseordered if detention is not lawful.


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Article 6 Right to a Fair Trial

1.

In the determination of his civil rights andobligations or of any criminal charge againsthim, everyone is entitled to a fair and publichearing within a reasonable time by an

independent and impartial tribunalestablished by law. Judgement shall bepronounced publicly by the press...

2. Everyone charged with a criminal offenceshall be presumed innocent until provedguilty according to law.


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Everyone charged with a criminal offence

has the following minimum rights:

(a) to be informed promptly, in language which heunderstands and in detail, the nature and cause ofthe accusation;

(b) adequate time and facilities to prepare defence;

(c) to defend himself in person or through legalassistance of his own choosing or, given free ifcannot pay;

(d) to examine witnesses against him and to obtain theattendance and examination of witnesses on hisbehalf under the same conditions as witnessesagainst him;

(e) to have the free assistance of an interpreter


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Article 14

The enjoyment of the rights and freedomsset forth in this Convention shall besecured without discrimination on any

ground such as sex, race, colour,language, religion, political or otheropinion, national or social origin,

association with a national minority,property, birth or other status.


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Human Rights Act 1998

s. 2- courts and tribunals are to takeinto account ECHR jurisprudence

whenever [it] was made or given, so faras, in the opinion of the court or tribunal,

it is relevant to the proceedings in whichthat question has arisen.


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s. 3-So far as it is possible to do so,primary legislation and subordinatelegislation, must be read and given effect in

a way which is compatible with Conventionrights

s. 6 - it is unlawful for a public authority toact in a way which is incompatible with aConvention right


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S 19 Ministers have to certify Act is inaccordance with HRA

NB judges cannot strike down

Declaration of incompatibility

Fast-track procedure to remedy

Commission for Equality and HumanRights

Power given to judiciary


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Vertical effect (citizens can take actionagainst state)

Limited horizontal effect (Douglas v Hello!

Ltd[2001] 2 WLR 992) R (on the app of Al-Skeini) v Secretary of

State for Defence[2007] UKHL 26

applies beyond physical boundaries of UK Does not have retroactive effect (R v

Lambert [2001] UKHL 37; [2002] 2 AC

545)


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Remedies

Court has discretion to grant such relief orremedy, or to make such order, within itspowers as it considers just and

appropriate

E.g. damages, declaration, quashing/mandatory / prohibiting order


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R v Ministry of Defence, ex p Smith[1995] 4 All ER

Ban on gays in armed forces foroperational effectiveness was notunreasonable

Smith and Grady v UK [2000] 29 EHRR 493

Violation of Article 8


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Benefits

Quicker

Cheaper

More effective remedies Ensures domestic and ECHR compatibility

Reputation

Educative effect


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Backlash

Judicial law making (too much / notenough)

Conservative party opposes HRA,favouring British Bill of Rights


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Conclusion

Importance of human rights

Speaks to key themes of:

relationship between citizen and state

Balance of power between judiciary,legislature and executive

Peculiar status of British constitution

Importance of law and legal system

Documents

FCJ 4_human Rights