W200 Exam Review, Unit 11

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A Protection of an individual's rights and freedoms in the UK

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.

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How were human rights enforced before the Human Rights Act 1998

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Human rights in the UK were not actively legislated for but based on an absense of restraint in law

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What possible failings existed in the UK constitution before the Human Rights Act

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(i)No agreement on fundamental rights

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(ii) inconsistencies in the common law system which would permit any act which was not prohibited by law

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.

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B The European Convention on Human Rights and the Human Rights Act 1998

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.

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What refers to art. 57 which allows a State to reserve a particular law so that it cannot be challenged under the convention

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Reservations

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Once a Member State has ratified the ECHR, this does not mean that

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it is bound to it provisions indefinitely

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Article 15 of the ECHR allows a Member State to derogate from a particular right at a time of

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war or another threat to the life of a nation.

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An individual will therefore not be able to

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challenge an infringement under the ECHR under these circumstances

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Three institutions govern and enforce the ECHR:

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(i) The European Commission of Human Rights

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(ii) The European Court of Human Rights (ECtHR)

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(iii) The Committee of Ministers of the Council of Europe

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What is the organisation of the court:

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(i) There are a quantity of judges equal to that of number of contracting states

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(ii) There are no restrictions on the number of judges of one nationality

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(iii)The judges do not represent any State

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What are the procedures of the court:

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(i)Application: an individual (individual application) or State (State application) may lodge an application alleging a breach by a State of one of the convention rights

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(ii) Procedure on merits: the provison of evidence from both parties and attendance of a public hearing on the merits of the case

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(iii)Judegements: Respondent States are bound by the judgement and responsibility for the execution of the judgement lies with the Committee of Ministers of the Council of Europe

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How is the ECHR interpreted:

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The basic rule is that a treaty 'shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of treaty in their context and in the light of its object and purpose'

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What intepretive principle was introduced into UK law

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purposive approach

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Do the judiciary have the power to strike down legislation which is incompatible with the convention

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no

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What provision is made for a situation where it is not possible to reconcile domestic legislation with the convention

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the courts can make a declaration of incompatability with the convention

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What provision is made for the amendement of incompatible legislation

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a parliamentary fast track procedure is used

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C The right to personal liberty

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.

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What is the purpose of art. 5

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the purpose of art.5 is to ensure that no-one should be dispossessed of his liberty in an arbitrary fashion

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What are the freedoms protected by art. 5 and art.6 of the ECHR:

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(i) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

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(a) the lawful detention of a person after conviction by a competent court;

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(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

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(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

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(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

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(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants

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(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition

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(ii)Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for

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his arrest and of any charge against him.

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(iii)Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be

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brought promptly before a judge and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

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(iv)Everyone who is deprived of his liberty by arrest or detention shall be entitled to

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take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

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(v)Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall

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have an enforceable right to compensation.

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Law on detention refers to:

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the power of the police to arrest and detain a person without charge if that person is suspected of having committed a criminal offence

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PACE' refers to

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the Police and Criminal Evidence Act 1984

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Where will you find the code of practice for the Detention, Treatment and Questioning of Persons by Police Officers

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.

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What term refers to the power available to different ranks of police officer regarding detention

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Powers of rank

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What rank authorises detention between 24 hours and up to 36 hours and delay in access to legal advice

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Superintendent

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What rank carries out regular reviews during detention (before charge); authorises delay in contacting friend or relative

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Inspector

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What rank is responsible for maintaining the custody record; decides whether to detain or release before charge, and whether to charge

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Sergeant

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What section of PACE allows the power of arrest under reasonable grounds(without need for an arrest warrant) of anyone who is about to, is or suspect is going to commit an offence

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s. 24 of PACE

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What sections of PACE allows the power of arrest of anyone who is guilty of suspected of being guilty of an offence which has been committed

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s. 24(2) and (3)

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What section of PACE states the power of arrest can only be exercised if the police have reasonable grounds for believing the arrest is necessary under any of the reasons set out in s. 24(5)

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s. 24(4)

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What section of PACE allows the power of arrest by a private citizen in certain circumstances (indictable offence)

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s. 24(a)

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What offence under the Interpretation Act 1978, if committed by an adult, is triable on indictment (i.e. In the Crown Court) either because it is an offence triable only by indictment or an offence triable either way.

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an indictable offence

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What section of PACE allows the suspect be informed of the fact and grounds for his or her arrest as soon as is reasonable and practicable after his or her arrest

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s. 28

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What section of PACE refers to the right of a person attending a police station voluntarily to leave at will unless being placed under arrest

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s. 29

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Power of arrest refers to:

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an individual being detained against their will and being deprived of their liberty

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an arrest will only be lawful if done

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in accordance with the law

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What section of PACE states a suspect is arrested anywhere that is not a police station a person must be taken to a station as soon as it is practicably possible

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s. 30

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What section of PACE states that a suspect can be released on bail if the situation of s. 30 applies (known as street bail)

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s. 30(a)

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Who is responsible for the well-being of persons in custody

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The custody officer

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What are the custody officer's powers and duties before charge:

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(i)The custody officer determines whether there is sufficeint evidence to charge an individual under arrest

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(ii)if there is not sufficient evidence the custody officer authorises bail

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(iii) if the custody officer has reasonable grounds they can detain the suspect without charge in order to preserve evidence or to obtain evidence through questioning

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On what grounds can someone be detained without charge

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on reasonable grounds they can detain the suspect without charge in order to preserve evidence or to obtain evidence through questioning

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How long can a suspect be held without charge

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24 hours