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57 Cards in this Set
- Front
- Back
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Phone tapping case (qualify right to private life)...
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Malone v UK (1984)
Held that UK law on phone tapping was too unclear to provide legal basis for limitation to right to respect for private life. |
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Assisted suicide and clarity for regulation of ones conduct
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R (on the application of Purdy) v DPP (2009)
The DPPs factors taken into account were not sufficiently clear to allow a person to predict whether they could be prosecuted for assisting suicide. |
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Case with UK obscenity law, margin of appreciation...
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R v Handyside (1976)
No breach of Article 10 where UK obscenity laws prevent sex education manual for children Where convention law is unclear, “margin of appreciation” accorded to members to judge what is in the public interest |
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Case on qualities for a democratic society...
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R v Dudgeon (1982)
Qualities for a democratic society include minority tolerance Majority support does not excuse a law criminalising minority homosexual conduct |
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Derogations...
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Under Article 15
State may derogate from part of the convention in times of war or other public emergency threatening the life of the nation” Not bound to apply articles during this period No derogation for 3 (torture), 4(1) (slavery) or 7 (retrospective criminal offences) |
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s1 HRA 1998...
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Convention rights are to be read subject to any derogations
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Example of UK derogation...
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A (FC) v Secretary of State for the Home Department (2005)
There was a derogation in delegated legislation from the Anti-terrorism, Crime and Security Act 2001 Quashed by the Lords |
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Definition of "public authority" re suitability for judicial review...
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R (on the application of Beer) v Hampshire Farmers Market Ltd (2004)
terms “public body” and “public authority” are synonymous for testing suitability for judicial review |
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Definition of "horizontality"...
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Courts have a duty as public authorities to apply the convention, meaning that the convention can affect the relationship between private individuals – this is “horizontality”.
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HRA98 s1...
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Incorporates and gives effect to convention rights
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HRA98 s2...
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Domestic Courts must “take into account” judgements of the EctHR but are not bound to follow them
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HRA98 s3...
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as far as possible, past and future legislation must be read and given effect compatibly with convention rights
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HRA98 s4...
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High Court and up can declare Acts of Parliament incompatible
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HRA98 s6...
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It is unlawful for a public authority including a court to act incompatibly with convention rights. Exception is where they are giving effect to an incompatible statute. This affects grounds of challenge
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HRA98 s7...
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Victims of such unlawful acts can bring proceedings against public authorities and rely on the convention in the proceeding
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HRA98 s8...
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Where it is necessary “to afford just satisfaction” to an injured party, a court can award damages where a public authority has infinged a convention right
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HRA98 s10...
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creates a “fast track” procedure for amending incompatible legislation. Delegated “remedial order” can be made, which has to be approved by Parliament under the “affirmative procedure”. Cannot change the common law
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HRA98 s19...
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Ministers promoting future legislation must make written statements stating compatibility or that despite incompatibility the government wishes to proceed
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Qualification of human right must:
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Be prescribed by law
Serve a legitimate aim Be necessary in a democratic society |
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Limitations must be prescribed by law...
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A state can rely on a convention limitation only if prescribedby law and clearly accessible, so people can regulate their conduct
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Legitimate aims...
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Limitations must be justified by reference to aims specified for each right.
National security, public safety or economic well-being Prevention of disorder or crime Protection of health or morals Protection of rights and freedoms of others Protecting disclosure of information received in confidence Maintaining authority and impartiality of the judiciary |
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Necessary in a democratic society...
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Limitatations are sometimes required to be necessary in a democratic socirty
Must be “pressing social need” rather than absolute requirment Interference must be proportionate |
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ECHR summary:
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- ECHR is an international treaty
- ratified by the UK in 1951 - Other states can bring cases to the EctHR as well as individual applicants - Judgements are binding under international law. - State applications - Individual applications (UK law violates convention rights – exhaust domestic remedies first) - Must also be within six months of final UK decision. Possible remedies are compensation or requiring states to change domestic law - Force is international law, not directly domestic law |
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Article 2 summary
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Right to Life
Everyone's right to life is protected by law; no one to be deprived of life except as penalty for crime for which this is the lawful penalty. Not an infringement if deprivation of life is no more than necessary to: - protect a person from unlawful violence - effect lawful arrest or prevent escape of someone lawfully detained - quell riots or insurrection Art 2 does not prevent death penalty but protocol 6 (ratified 1999) does. No reintroduction except for acts committed in times of war/imminent threat of war. No derogation |
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embryo had no qualified right to life under article 2
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Evans v UK (2006)
- Accepted view of domestic courts that embryo had no qualified right to life under article 2 - Decision is within margin of appreciation for member states |
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Right to die cannot be read in to ECHR right to life...
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Pretty v UK (2002)
- DPP has no power to give undertakingthat husband would not be prosecuted for helping MND sufferer to commit suicide - Right to die could not be read into Article 2 right to life |
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DPP decision not to prosecute for manslaughter of de Menezes held to be lawful...
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The Queen (on the application of Patricia Armani da Silva) v DPP, The IPCC
- DPP's decision not to prosecute for manslaughter of de Menezes was held to be lawful - Not seen as breaching article 2 because of protection from unlawful violence - Not in the public interest |
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Local authority seeks injunction to prevent Dignitas trip...
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A Local Authority (Claimant) v Mr Z (Defendant) and The Official Solicitor (Advocate to the Court) (2004)
- Wife has cerebella ataxia, incurable loss of motor function and was disabled - Had attempted suicide and wanted husband to arrange Dignitas trip - Authority thought she was a vulnerable person and sought an injunction preventing her removal to Switzerland - Held she was competent to decide and therefore not a “vulnerable person” needing injunction |
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SAS shootings on the Rock of Gibraltar...
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McCann v UK (1995)
- SAS shot three IRA members on the rock of Gibraltar in 1988 - Relatives won a slim decision that the force was more than absolutely necessary |
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Article 5...
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Right to Liberty and Security
No one shall be deprived of liberty save in the following: - Lawful detention after conviction be competent court - Lawful detention after non-compliance of court order or to fulfill obligation precribed by law - arrest to bring a person before a competent court - detention of minor for educational supervision or to bring before competent court - lawful detention to prevent spread of disease, drug addicts, drunks, vagrants - detention to prevent unauthorised access to country or for deportation - Must have reasons for detention explained in a language you understand - Must be brought promptly before a court if that is reason for detention - Everyone detained may speedily challenge lawfulness of detention and get a quick resolution - Any detention in contravention of article has an enforceable right to compensation |
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Anti-Terrorism, Crime and Security Act 2001 s23 declared incompatible...
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A (FC) v Secretary of State for the Home Department (2005)... “The Belmarsh Case”
- Lord Bingham quashed HRA98 derogation order 2001 and declared s23 of Anti Terrorism, Crime and Security Act 2001 incompatible with Articles 5 and 14 of the ECHR. - Could not order release of detainees because courts cannot strike down the legislation - Could not in the circumstances be deported because of risk of torture in breach of article 3 |
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Control orders held to be effectively a derogation from Article 5
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Secretary of State for the Home Department v JJ and others (2006)
- six men had control orders imposed on them under the PTA 2005 - In order to determine whether a measure was a “deprivation” rather than a restriction, you must start with the concrete situation of the person and weigh a large number of factors; type, duration, effect and manner of implementation of measure in question - Looked at collective impact of measure on ability to lead a normal life - Orders quashed as a nullity because they were effectively derogating orders from Article 5 - Lords upheld the CA's decision |
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Kettling case...
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Austin and another v Commissioner of Police for the Metropolis (2009)
- Is “kettling” a deprivation of liberty under Article 5? - Public order does not appear as an exception under the definition of Article 5 - Despite exhaustive list, other considerations had to be taken into account - Intentions behind kettling are important - If constraint is reasonable, proportionate, done in good faith and needed to prevent serious public disorder it will not need justification under Article 5(1)(a-f) |
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Article 6 – Right to a Fair Trial
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Everyone is entitled to a fair trial before an impartial court in a reasonable time. Judgement is pronounced publicly, though the public may be excluded from bits if protecting minors, national security, morals, public order or the interests of justice
Everyone is presumed innocent until proven guilty Minimum rights: - to be informed promptly in a language you understand, of the charges against you - adequate time and facilities to prepare defence - to defend in person or use chosen legal help; free representation if insufficient means - to examine witnesses and obtain witnesses on same basis as used against him - free interpreter if needed for the language of the court |
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Freedom from bias includes freedom from appearance of bias
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Findlay v UK (1997)
Freedom from bias includes freedom from appearance of bias, including political or executive bias |
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Illegal recordings not necessarily inadmissible as evidence...
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Khan v UK (2001)
- Khan made admissions of drug trafficking while being unknowingly recorded - Recordings breached Article 8(1), but court held that evidence obtained from a breach was not necessarily inadmissible and to be excluded under article 6 |
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Breach of article 6 to rely on evidence from closed hearing to impose control order...
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Secretary of State for the Home Department v (1) AF (2) AM (3) AN (2009)
- HL held it was a breach of Article 6 to rely on material from a closed hearing to impose a control order. Controlled person needed sufficient information of the case against him |
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Case on Home Sec setting tarriffs for convicted murderers...
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R (on the application of Anderson) v Secretary of State for the Home Department (2002)
s29 of the Crime (Sentences) Act allowed Home Sec to fix tariffs for murderers - under 6(1), a defendant has a right to a fair trial by an impartial tribunal - sentencing is part of a trial - the sentence should be imposed by an impartial tribunal - fixing of tariff is indistinguishable from imposing a sentence - tariff should be fixed by an impartial tribunal - the Home Secretary is not impartial - The Home Secretary should not fix tariffs for convicted murderers - s29 declared incompatible under HRA98 |
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PACE 1984 s24...
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An arrest can be made for any offence where a police officer has reasonable grounds to believe an arrest is necessary for one of the reasons in 24(5)
- These reasons are essentially reflecting requirements of ECHR 5(1) |
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Article 8 – Right to Respect for Private and Family Life...
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Everyone has right to respect for four things: private life, family life, home and correspondence
No interference by a public authority except for protecting national security, public safety, economic well-being, disorder or crime, health or morals or the rights and freedoms of others |
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Proportionality test for necessity in a democratic society...
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R (on the application of Daly) v Secretary of State for the Home Department (2001)
- Exclusions from cells while prison officers searched legally privileged correspondence potentially infringed Article 8 - The test of proportionality: - The legislative object is sufficiently important to justify limiting a fundamental right - The measures doing so are rationally connected to the objective - The measures used are no more than necessary to achieve the legislative object |
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Hunting not covered by right to respect for private life...
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R (on the application of the Countryside Alliance and Others) v Attorney-General and Another (2007)
- Claimed the hunting ban breached Article 8 because homes and livelihoods might be lost - Held that fox-hunting is a very colourful, public activity and no analogy can be drawn with cases relating to the private autonomy of the individual |
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Blogger does not have an expectation of privacy under Article 8...
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Author of a Blog v Times Newspapers Ltd (2009)
- A blog does not have the quality of confidence and nor does it qualify as information which a blogger has an expectation of privacy in respect of under Article 8. - It is fundamentally public as an activity |
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Article 9 – Freedom of Thought Conscience and Religion...
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Everyone has the right to freedom of thought, conscience and religion. This includes the freedom to change their belief either alone or with others and to manifest his belief in teaching, belief, worship practice and observance. Subject to:
- democratic society - public safety - public order, health and morals - protection of rights and freedoms of others |
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Government able to ban corporal punishment based on rights of children...
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Williamson v Education Secretary (2005)
- Private school allowing corporal punishment of children as part of manifesting belief - Government able to justify corporal punishment ban based on the rights of children |
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Expulsion due to wearing of jilbab...
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R (on the application of Begum) v Headteacher, Governors of Denbigh High School (2006)
- Case of student seeking judicial review of decision to exclude her because of refusal to stop wearing a jilbab - Main weakness is three other schools in catchment did not have this rule - The court is concerned with whether a disproportionate breach of an article has occurred, not with the manner by which a decision has been arrived at |
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School that banned the niquab veil...
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R (on the application of X (by her Father and Litigation Friend)) v Headteachers and Governors of Y School (2007)
- A school prevented a pupil from wearing a niqab veil contrary to uniform policy - Court followed Begum case - Again, availability of alternative school may have been fatal |
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Christian girl and her chastity ring...
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R (on the application of P) v Governing Body of Millais School (2007)
- Christian girl lost High Court challenge over ban on her chastity ring, despite Sikh girls being allowed bangles - She was under no obligation to wear the ring, whereas the other girls had it as a requirement of their faith |
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Judicial review of decision to slaughter sacred cow...
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R (on the application of Swami Suryananda (as a Representative of the Community of the Many Names of God)) v Welsh Ministers (2007)
- Decision whether or not to make an exception to policy of slaughtering cattle with bovine tuberculosis for a Hindu community temple bullock - Held the decision to slaughter the bullock was a lawful exception under 9(2) - Slaughter was important because disease was rife and the importance to the agricultural industry |
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Article 10 – Freedom of Expression
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Everyone has the right to freedom of expression, freedom to hold opinions and receive and impart ideas free from interference. Doesn’t prejudice licencing of media enterprises. Subject to formalities, conditions, restrictions and penalties:
- Democratic society - National security - Territorial integrity or public safety - Prevention of disorder or crime - Protection of public health or morals - Preventing disclosure of information received in confidence - Maintaining authority and impartiality of the judiciary |
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Revolting foetus picture woman...
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Veronica Connolly v DPP (2007)
- Prosecuted for sending revolting images of dead foetuses to pharmacists to dissuade them from selling the morning after pill - Appeal dismissed, as the images sent satisfied the common-sense notion of “gross or indecent” in the Malicious Communications Act 1988 - While Article 10 might have been engaged, claimant’s right did not trump the rights of others under the qualification in 10(2) |
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Northern Ireland porno shop...
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Belfast City Council v Miss Behavin’ Ltd (Northern Ireland) (2007)
- Issue to consider was whether human rights had been infringed, not whether they had been taken into account |
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Article 11 - Freedom of Assembly and Association
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Everyone has the right to freedom of association assembly, as well as the right to join trade unions. This is limited by lawful restrictions based on:
- national security or public safety - for the prevention of disorder or crime, - for the protection of health or morals - for the protection of the rights and freedoms of others |
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MoD bylaw preventing camping by the AWE...
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Tabernacle v Secretary of State for Defence (2009)
- Appeal against refusal to quash a MoD byelaw preventing camping by the AWE once a month - Protest always peaceful - Held that SoS had to demonstrate a pressing social need. The 2007 byelaw violated T’s rights of free expression under Article 10 and 11 |
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Freedom of assembly case...
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R (Laporte) v Chief Constable of Gloucestershire Constabulary (2006)
- Police stretched common law power based on reasonable expectation of imminent breach of the peace beyond reasonableness - Laporte’s rights of free assembly under Article 11 was disproportionately infringed |
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Article 1 of First Protocol Protection of Property
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Guarantees right to peaceful enjoyment of possessions, both realty and personal property
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Landowners lost possession of their land due to domestic rules on adverse possession...
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Pye (Oxford) Ltd v UK
- Landowners lost possession of their land due to domestic rules on adverse possession - Strasbourg court held that UK law provides inadequate protection for true owners of land, especially as there is no statutory right for them to be notified of possessor’s intention to claim those rights |
