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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