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Human Rights (Everything) - Coggle Diagram
Human Rights (Everything)
Article 8 - Right to Private, Family Life, Home and Correspondence
Article 8(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
These rights can overlap.
This tends to be a negative right – the state should not interfere.
Private Life
Private life
Has not been defined precisely.
Niemetz v Germany (1992) - No exhaustive definition of private life but not limited to an inner circle.
Xand Y v Netherlands – Includes physical and moral integrity
Gaskin v UK – Includes private information including medical records
Malone v UK – Includes telephone calls
S & Marper v UK – Includes retaining DNA profiles of innocent people
Peck v UK – Includes releasing CCTV pictures of a suicidal person to the media.
Key Case
Von Hannover v Germany – failure to provide remedy to Princess Caroline of Monaco after photos published without her consent was a breach of Article 8.
Family Life
R (Agyarko & Ikuga) v Home Secretary - illegal immigrants who had partners in UK were deported. Not a breach as could continue relationship outside country. State has wide margin of appreciation for immigration matters
Johansen v Norway - Putting child up for adoption and cutting of contact with birth parent which caused a breach of Article 8 as positive obligation on state to facilitate contact, where it is in the child's best interest.
Home
Niemetz v Germany 1992 - business premises could be considered home.
Correspondence
Kennedy v UK - Mail, email and telephone messages all classed as correspondence
Interception of Communications Act 1085 - Gives Home Secretary power to grant phone tapping warrant.
Article 8(2) - there shall be no interference by a public authority except:
In pursuit of a legitimate aim
Economic Well-Being (Gillow v UK
Prevention of disorder or crime (Malone v UK
Public Safety (Buckley v UK
Protection of health and morals (Laskey, Jaggard and Brown v UK) sadomasochism case
National Security (Klass v Germany)
Protection of rights and freedoms of others (Chappell v UK)
Necessary in a democratic society
Must be proportionate, will consider margin of appreciation. If there is national security considerations or no European consensus more likely to be wide margin of appreciation.
Key Case
Handyside v UK – laid out test for proportionality
Is there a pressing social need?
Do the restrictions correspond to that need?
Is the restriction proportionate?
Are the reasons relevant and sufficient?
Evans v UK – man withdrawing consent for embryo implantation – wide margin of appreciation as no European consensus
In accordance with the law (clear, predictable and accessible)
Relevant UK law
Tort – breach of confidence (where there is a duty of confidentiality such as lawyer client)
Protection from Harassment Act 1997 – must be a course of conduct.
If dispute is between private individuals the court must take account of HR as in Campbell v MGN
Article 11 - Freedom of Assembly
Article 11 (1) Everyone has the right to freedom of peaceful assembly and to freedom of association with others including the right to form and join trade unions.
Freedom of Assembly
Cisse v France – sit in at church was covered by Art 11 even though it was illegal.
States have a positive obligation to protect peaceful protest
Plattform Artze fur das Leben v Austria – state had taken reasonable precautions to protect protest even though it was egged.
Appleby v UK – Owners of private property can exclude others from it. The protestors in Appleby could protest elsewhere so their rights weren’t restricted.
McFeely v UK – Did not include a right to associate with other prisoners convicted of terrorism offences. It is a right to be part of a group not a right to company.
Freedom to join a trade union
Young, James & Webster v UK – A person cannot be forced to join a trande union.
Demir and Baykara v Turkey – Trade union rights must be secured
Article 11(2)
In accordance with the law
Breach of the peace (R v Howell)
Trespass to land
Public Order Act 1986
In pursuit of a legitimate aim
Prevention of disorder or crime
Pendragon v UK
Protection of Health and Morals
Friend & Countryside Alliance v Uk
National Security or Public Safety
Ollinger v Austria
Protection of Rights and Freedoms of others
Ollinger v Austria
Necessary in a democratic society (Handyside)
Tabernacle v Sec State Defence – Ban on camping was disproportionate
Balances of Article 8 and Article 10
These two rights often come into conflict, you may have an evaluation question about balancing rights such as 8 and 10.
Key Cases:
Campbell v MGN Ltd (2004) - Model leaving narcotics anonymous, this was private and publication of information breached article 8 rights.
A v B (Flitcroft v MGN Ltd) (2002) - Greater restriction on details of sexual relationship in married relationship than that of unmarried people.
Thompson and Venables v News Corp (2001) – Publication of identity not allowed as there would be a risk to their safety
Mills v News Group Newspapers Ltd (2001) - publication of address not a breach as no risk to safety
Mosley v News Group Newspapers Ltd (2008) - public figure in F1. Right to privacy violated by news story about him visiting prostitutes as there was no public interest in this information. (Things that interest the public aren’t necessarily in the public interest.
Possible evaluation questions
There is a tension between the two articles which requires the court to hold the balance between the conflicting interests they are designed to protect.
Discuss the extent to which the court struggles to balance the rights in article 8 and 10.
A01 – Briefly explain rights in Article 8 and restrictions
Briefly explain rights in Article 10 and restrictions.
Point 1 – One persons rights should not infringe on the other. Both rights are qualified allowing scope to balance. Use cases either way.
Point 2 – Courts tend to favor privacy where a couple is married – should this be the case with less marriage in society?
Point 3 – Difficulties with press intrusion and phone hacking scandal
Point 4 – Bringing these issues to court is expensive and time consuming. Difficult for parties to know which right will win.
Conclusion
Rules and Theories of Human Rights
Human rights are
Inalienable
Cannot be taken away
Universal
Apply to everyone
Inherent
Not earned
Fundamental
Can only be limited in specific circumstances
Three types of rights
Limited
Can be restored in some way (e.g. right to liberty)
Qualified
Need to be balanced against others (e.g. right to freedom of expression)
Absolute
Cannot be limited (e.g. right to freedom from torture)
Human rights and Civil liberties
Human Rights
Provide an overall framework
Cannot be taken away
Universal
Civil Liberties
Can be removed
May only be given to certain groups
Rights you have provided there is no law against
Human Rights Act made the European Convention directly applicable in the UK
Key sections:
S3(2)(c) - DL can be declared ineffective as long as the enabling act does not prevent it.
S4 - Allows the court to make a declaration of incompatibility (this can be done by the supreme court, court of appeal, high court and privy council)
S3(2) - This does not impact the validity of acts of parliament (parliament is still sovereign)
S6 - Unlawful for public bodies to act in a way that is incompatible with the convention (unless there is a statutory duty to do so)
S3 - Judges must read law in a way that gives effect to the European Convention as far as it is possible to do so
S8 - Damages can be awarded for breaches of convention rights
S2(1) UK courts must take into account previous decisions of ECHR
S10 - Ministers can make remedial orders to allow compatibility
S2 - Allows direct enforcement of HR in UK courts
Key Cases:
A & Others v Home Secretary
Terrorism legislation was incompatible on grounds of nationality BUT Uk court could not strike down legislation and A & Others remained in detention.
Rights can be limited if it coincides with three things
In pursuit of a legitimate aim
These are laid down in each article
Necessary in a democratic society
This specifically relates to articles 8, 10 and 11. The courts will use proportionality and the margin of appreciation to decide. There must be a fair balance between the rights of individuals and society.
In accordance with the law
The law must be clear, predictable and can be accessed by claimant
Handyside v UK
Test for necessary in a democratic society
If so does the restriction correspond to this need?
Is it a proportionate response to this need?
Are the reasons presented by the authorities relevant and sufficient?
Is there a pressing social need for a restriction
OOO v Commissioner of Police
Damages awarded when police failed to investigate women kept in slavery
Margin of Appriciation – there are areas in which national authorities are better placed than the court to decide what is best in their state. Can apply rights in their own way (particularly important for national security).
More divergence of views across states, the wider the margin tends to be.
Article 5 - Right to Liberty and Security of persons
Article 5 is a limited right, it can only be restricted for the reasons set our in a-f
Article 5(1) Everyone has the right to liberty and security of person
(a)-(f) lawful detention after a conviction by a competent court, lawful arrest or detention, detention or a minor for educational supervision, to prevent the spread of disease, to prevent unauthorised entry to the country.
c) Lawful arrest or detention to bring him before a court
Fox, Campbell & Hartley v UK
d) Detention of a minor for educational supervision (under 18)
Bouamar v Belgium
b) Lawful arrest or detention for breach of a court order
Perks v UK
e) Prevention of spreading or disease, persons of unsound mind, alcoholics, drug addicts
Winterwerp v Netherlands
a) Lawful detention after conviction by a competent court
Van Droogenbroeck v Belgium
f) Prevent authorised entry or for deportation
Bozano v France
And in accordance with a procedure proscribed by law.
Three main issues to apply
What is a deprivation of liberty?
Requires confinement to a certain limited place for a not negligible length of time
Guzzardi v Italy
Court will look at the degree or intensity of the measure in question, they will consider the type, duration, effects and manner in which the restriction is implemented.
Has there been a procedure prescribed by law?
Police Kettling - unethical tactic in rounding up people for a long duration of time and refusing to let them go
Austin v UK (2012)
Kettling is a deprivation unless a breach of the peace is imminent and kettling is used as a last resort. The court will consider type, manner and context.
Mengesha
Requiring photos to leave a kettle is unlawful
Does the restriction fall under the grounds in a-f?
Cheshire West & Chester CC v P (2014)
Where someone is not in a position to consent to the circumstances or their care there may be the need for periodic review
Care settings
Article 5(3) Shall be brought promptly before a judge, within a reasonable time.
McKay v UK - a maximum of four days
Article 5(2) Everyone arrested shall be informed promptly in language he understands of the reasons for his arrest and of any charges against him
Restrictions on Article 5 Police Powers
If there is a deprivation this is a breach pf Article 5, unless it falls under the allowed exceptions and is in accordance with a procedure prescribed by law
Stop and Account
Police can ask stop and ask someone to account for their behavior, actions or presence.
No requirement on person to answer questions unless police reasonably believe that person is engaged in antisocial behavior (Ricketts v Cox)
It is a criminal offence to refuse to give your name.
Stop and Search
Governed by S1 PACE and Code A
S1 PACE - Police must have reasonable grounds for suspecting a person is in possession of stolen goods or prohibited articles (including weapons, things used to commit a burglary, terrorism, criminal damage and drugs)
Suspicion must be based on intelligence, information or the suspects behaviour. Not age, race or previous convictions). Stop and search must be done in a public place, and must be used fairly, without discrimination.
S60 CJPOA – Stop and search without reasonable suspicion can occur for up to 24hrs in a limited area if an authorised officer reasonably believes serious violence may occur.
R (Roberts) v Commissioner of the Metropolis - Being kept waiting during stop and search is not a deprivation of liberty.
The police are allowed to remove suspects coat, jacket and gloves. If they wish to remove more clothing then they must move to a place out of view.
Reasonable force can be used and prohibited articles seized.
A record of the search must be made as soon as possible
Osman v DPP (1999) - Police did not give names and station number, search was unlawful and Osman could not be charged with assaulting a police officer.
Arrest
Governed by S24 PACE and Code G
Under s24 - Can arrest any they has reasonable grounds to suspect may be committing, about to commit or has committed an offence.
Officer must have reasonable grounds to suspect arrest is necessary to find out a name or address, prevent harm or protect a child, prevent a suspect disappearing or allow prompt investigation.
Suspect must be informed of arrest and grounds for arrest as soon as practicable.
Has the right to have someone informed of their arrest.
Must be told of duty solicitor and has the right to consult the solicitor in private.
Detention
S21-43 PACE Police can only detain or arrest person for 24hrs must then charge or release. Can be extended to 36 hours for indictable offence or 96 hours with warrant from magistrate.
Can be granted by police under PACE or by magistrate/crown court under Bail Act.
S4 Bail Act General right to bail – can be refused if
Defendant would fail to surrender to bail
Defendant is already on bail
Defendant would interfere with witnesses
Defendant has broken bail conditions in the past
Defendant needs to be in custody for own protection
Defendant would commit further crimes if granted bail
Court will consider seriousness of offence and defendants previous convictions.
Article 10 - Freedom of Expression
Article 10(1) Everyone has the right to freedom of expression. This includes:
Freedom to hold opinions
Handyside v UK – Article 10 is one of the essential foundations of a democratic society. Subject to 10(2) Article 10 applies to information or ideas that offend, shock or disturb.
Freedom to receive and impart information and ideas
Vogt v Germany – dismissal from teaching job due to membership of communist party was against article 10.
Without interference by public authority
Key Case
*
Handyside v UK – laid out test for proportionality
Is there a pressing social need?
Do the restrictions correspond to that need?
Is the restriction proportionate?
Are the reasons relevant and sufficient?
Evans v UK – man withdrawing consent for embryo implantation – wide margin of appreciation as no European consensus
Types of Expressions:
Artistic
Wider margin of appreciation
Especially where offensive or blasphemous
Cases:
Muller v Switzerland
Otto-Preminger v Austria
VBK v Austria (restriction disproportionate as are was satirical)
Commercial
Wider margin of Appreciation
Cases:
MIV v Germany
Political
Extremely important
Underpins democracy
Narrow margin of appreciation
Also extends to expression in the public interest
Cases:
Lingens v Austria
Incal v Turkey
Steel v Morris
Article 10(2) - The exercise of this right may be subject to restrictions
In accordance with the law
Common Law
Defamation
Outraging public decency
Breach of confidence
Statute
Obscene Publications Act 1959 & 1964
Theatres Act 1968
Broadcasting Act 1990
In pursuit of a legitimate aim
Protection of health or morals
Handyside v UK
Otto-Preminger v Austria
Protection of rights or reputation of others
Goodwin v UK
Prevention of disorder or crime
Brind v UK
Prevent disclosure of information received in confidence
Stoll v Switzerland
National security, territorial integrity or public safety
Observer and Guardian v UK (Spy catcher case)
Maintaining authority and impartiality of the Judiciary
Sunday Times v UK
Necessary in a democratic society
Defamation and Harassment
Relevant legitimate aim is protecting the rights of others
Defamation
Libel – permeant, written or filmed
Slander – transient, spoken words or conduct
Comes from common law but altered by Defamation Act 2013.
For a successful claim of defamation there must be
A defamatory statement
Must have a tendency to have adverse effect of claimants reputation. Sim v Stretch
Not just damage to pride. John v Guardian Newspaper
The court view it as a whole. Charleston v News Group
Which is untrue
Published
Refers to the claimant
Causes serious harm
To reputation, will usually include financial loss. Consider impact – Lachaux v Independent Print
Defences
that it is true
that it is an honest opinion based on facts at publication (Butt v Home Secretary)
that defendant reasonably believed it was in the public interest.
That the report is protected by privlige (e.g. said in parliament)
Remedies
Damages or injunction
Harassment
Harassment is covered by the Protection of Harassment Act 1997. A restraining order can be made to prevent someone causing alarm or distress or putting a person in fear of serious violence. This usually needs to be a course of conduct.
Malicious Communications
Malicious Communications Act 1998:
An offence to send another person a letter, electronic communication or article which conveys: A message which is indecent or grossly offensive, A threat, Information which is false and is known to be false by the sender The effect must be to cause distress to the recipient or any other person
Obscenity
Obscene publications Act 1959 – article will be deemed obscene if it is like to deprave and corrupt people who may see, read or hear it.
Protection of Rights and Freedoms
Development of Human Rights in the UK
1953 - European Convention of Human Rights
1959 - Established European Court of Human Rights (UK signed up in 1966) - allows individuals and states to take actions against any of the 47 countries that have ratified the convention
1948 - Universal Declaration of Human Rights - Foundation of Human Rights law
1998 - Human Rights Act
1688 - Bill of Rights - Protects freedom of Parliament, freedom from cruel/unusual punishment. trial by peers
Devolution
Some HR powers have been devolved (given away to Scotland, Wales and Northern Ireland)
Human Rights are entrenched – meaning devolved bodies (Scottish parliament, Welsh assembly, Northern Irland Assembly) cannot act in a way which is against convention rights.
**Scotland Act 1998
**Government of Wales Act 1998
**Northern Ireland Act 1998
1215 - Magna Carta - protects an individual rights to freedom, origin of fundamental principles of the rule of law, trial by peers and freedom from arbitrary
Article 6 - Right to a fair trial
Article 6 is an absolute right, the only limitations are in relation to public hearings.
There are extra protections for criminal cases but Article 6 applies to both criminal and civil cases. This is about fair process not fair law.
Schenk v Switzerland (1988) - There is a wide margin of appreciation as to how courts operate provided the trial is fair.
Article 6(1)- Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly
Fair hearing, Includes:
Access to court
Golder v UK – not allowing prisoner to write to solicitor to start a liable case against a prison officer was a breach of article 6.
Legal representation
Airey v Ireland – right to legal representation is required where it is indispensable for effective access to court, if someone is of low means this means free legal representation.
Attendance at court
Steel and Morris v UK – fact defendants were denied legal aid meant there was a breach of article 6 because there was not equality of arms.
Rules of evidence
Edwards and Lewis v UK – in criminal cases prosecution should disclose all material evidence in their possession for or against the accused.
Final and reasoned judgement
Boldea v Romania – Fair trial means all essential issues of the case should be addressed when pronouncing a decision
Equality of arms
T and V v UK – Their right to participate effectively in the trial had not been respected.
Within a reasonable time
Justice delayed is justice denied. (Stogmuller v Austria a person should not be left uncertain as to his or her fate for too long).
Public Hearing
All Hearings should be in public unless it is in the interests of:
Morals, public order or national security in a democratic society
Where the interests of juveniles or the protection of the private life of the parties requires
Or to the extent strictly necessary where publicity would prejudice the interests of justice.
B and P v UK – Divorce hearings about child custody are an example of where a private hearing is justified.
Independent and Impartial Tribunal established by law
Judiciary should be independent
R v Bow Street Magistrate ex parte Pinochet (2000) Judges membership of Amnesty International meant he was not impartial.
Article 6(2) Everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law.
Criminal cases include those which the state says are criminal but...
Engel v Netherlands (1976) ECtHR will include other cases they consider criminal taking into account the nature of the offence and severity of penalties.
Presumption of innocence
Burden of proof rests with the prosecution (Woolmington v DPP)
Presumption includes the right to remain silent.
Saunders v UK – There is a protection against self incrimination (you cannot be forced to answer questions)
Article 6(3) - Everyone charged with a criminal offence has a following minimum rights
-a) be informed promptly on a language he understands of the nature of the accusation (Brozicek v Italy)
-b) adequate time and facilities to prepare a defence (Hadjianastassiou v Greece)
-c) defend himself in person or where justice requires be given free legal assistance (Benham v UK)
-d) examine witnesses against him and have witnesses attend on his behalf (Saidi v France)
-e) have the free assistance of an interpreter (Cuscani v UK)