The ECHR - Articles 5 and 6 (Article 6 - Right to a fair trial/fair legal…
The ECHR - Articles 5 and 6
Article 5 - right to liberty and security of person
"In urging the fundamental importance of the right to personal freedom... the appellants were able to draw on the long libertarian tradition of English law, dating back to... Magna Carter 1215, given effect in the ancient remedy of habeas corpus... upheld in a series of landmark decisions down the centures and embodied in the substance and the procedure of the law to our own day" - Lord Bingham, A & Others (2004)
Art 5(1) - arrest
Everyone has the right to liberty and security of person
No one shall be deprived of his liberty save...
i) In the following cases [Art 5(1)(a) to (f)] AND
ii) In accordance with a procedure proscribed by law
Has there been a deprivation of liberty?
Or just a restriction of liberty?
Prevention of Terrorism Act 2005
"Control orders" - now T-PIMs
Re JJ (2007)
Guzzardi v Italy (1980) - intensity of restrictions?
Nature of deprivation?
Austin v Met Police Commission (2009)
Austin v UK (2012)
No engagement of Art 5 unless deprivation is arbitrary?
Does it fall within one of the 6 accepted "cases" (limitations)? - likely to be Art 5.1(c)
Art 5.1(c) - the lawful arrest of a person... 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.
Reasonable suspicion = objective standard
Requires evidence, irrespective of context
Fox, Campbell and Hartley v UK (1990)
Has the deprivation been carried out in accordance with a procedure "prescribed by law"?
Is there a LEGAL BASIS for the intereference with a right? If so...
i) Is the relevant law sufficiently ACCESSIBLE to the (affected) individual? AND
ii) Is it formulated with SUFFICIENT PRECISION to enable the citizen to regulate his conduct?
Sunday Times v UK (1979) (Art 10)
Prescribed by law - a gloss
Gillan v Quinton v UK (2010) - is the law sufficiently narrowly prescribed in order to prevent arbitrary abuse of power?
5(2) - reasons for arrest
Reasons required for arrest
Fox, Campbell and Hartley v UK (1990)
5(3) - period of detention by the police
Suspect must be brought promptly before a judge - ties in with 5.1(c)
Brogan v UK (1989) - PoTA 1984
Guidelines on detention
PACE 1984 - 24 hours-36 max
Terrorism Act 2006 - current maximum = 14 days (28 before)
On police authority = 1st 48 hours only
Extensions through a judge
5(4) - right to challenge detention
Right to challenge lawfulness of detention "speedily"
Life sentences and tariffs
Osborn v Parole Board (2013)
R (Haney) v SosS JUstice (2014) - "IPP" cases - indeterminate sentences
Mental Health Act 1983
Article 6 - Right to a fair trial/fair legal process
Art 6(1) - in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entited to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law
"Right to fair trial"
Fair legal process generally
Link to fairness/"procedural impropriety" - JR
Right of access to courts/public funding
Airey v Ireland (1979)
R (Gudanaviciene) v Director of Legal Aid Casework and Lord Chancellor (2014) - "exceptional case funding" (ECF)
Judgement - to be pronounced publicly, unless interests of justice require otherwise (e.g. protection of children; national security)
Additional criminal law rights
Art 6.2 - presumption of innocence until proven guilty for anyone CHARGED
Art 6.3 - everyone CHARGED has the following minimum rights
a) To be informed promptly and in detail of accusaion
b) Adequate time and facilities for defence
c) Ability to defend oneself through legal assistance (free, if in interests of justice)
d) To be able to examine witnesses against and have one's own witnesses
e) Free interpreter (if necessary)
Criminal law - application
Access to legal advice during questioning
Murray v UK (1996)
Magee v UK (2000)
Right to silence?
Condron v UK (2001)
R v Betts; R v Hall (2001)
Right against self-incrimination
Brennan v UK (2002)
Saunders v UK (1997)
Right to cross-examine?
R v A (CSH) (2001)
R v Horncastle (2009)
Othman (Abu Qatada) v UK (2013)
Deportation to Jordan (without safeguards) = breach of Article 6
Use of evidence against him obtained by torture (on others)
Police and Criminal Evidence Act 1984 - supplementary