Human Rights AO1s - OCR, A-LEVEL

what does article 5 state?

everyone has the right to liberty and security. no one is to be derived if their liberty, unless it’s for one of the lawful reasons set out in Article 5(1)(a-f)

what are the reasons in Article 5(1)(a-f)?

a) after conviction

b) non-compliance with a lawful obligation

c) reasonable suspicion of having committed an offence

d) educational supervision

e) prevent of spreading infectious diseases and persons of unsound mind

f) detention to prevent those unlawfully entering the country

what is Article 5(2)?

a person should be informed promptly and in a language they understand of any arrest (Taylor)

what is Article 5(3)?

you must be brought promptly before a judge rand you’re entitled to a trial within a reasonable time (Brogan). remand time limit is 182 days

what is Article 5(4)?

you have the right to challenge your deprivation of liberty speedily in court

what is Article 5(5)?

you are entitled to compensation

Article 5: what are TPIMs?

• no longer than two years, but can be renewed

• tagging and an overnight residence requirement

• restrictions on who you meet and where you go

• restrictions on foreign travel

Article 5: care

detention is allowed if a person is in care - Winterwerp states: must be a medically recognised mental condition, established by an expert, sufficient to justify detention, should be reviewed regularly and only last for the duration of the disorder - Section 7 of the MHA 1983

Article 5: acid test

comes from Lady Hale in the Cheshire West case - “is the person under continuous supervision and control and not free to leave?”

Article 5: what does deprivation depend on?

the circumstances and is the matter of “degree and intensity”

Article 5: IF RELEVANT

kettling can only be used as a last resort when violence is imminent, must be proportionate and necessary and enforced for no longer than is necessary (Austin)

what is Article 6?

sets out the right to a fair trial, the Magna Carta also sets out rights e.g trial by jury

what is Article 6(1)?

everyone is entitled to a fair and public hearing within a reasonable time

Article 6: what must the judges be?

must be and independent and impartial tribunal - in Pinochet, Lord Hoffman was not impartial as he was an Amnesty member

Article 6: what does justice have to be?

justice has to be seen to be done and judgements should be made public - if there is a threat to national security though, trials can be heard in secret courts without a jury

Article 6. equality of arms

parties must be on equal footing, there should be an “equality of arms” (Steel and Morris)

evidence must also be disclosed unless it’s a national security issue

what is Article 6(2)?

a suspect is presumed innocent until proven guilty, the prosecution must prove guilt

what is Article 6(3)?

it sets out minimum rights:

a) to be informed promptly, in a language he understands, the nature and cause of the accusation

b) adequate time and facilities to prepare his defence

c) free legal assistance if you cannot afford your own legal aid

d) examine to have witnesses examined

e) a free interpreter if needed

article 6: right to silence

a suspect has the right not to self incriminate, they can stay silent, but adverse inferences can be drawn from their silence

police powers - outside station: where does their power come from?

PACE 1984

outside station: what is section one of PACE?

you can stop and search a person or vehicle in a public place if they have reasonable grounds to suspect they’re in possession of stolen or prohibited articles

outside station: what is section two of PACE?

police must give a reason for the stop and search, their name and starion

outside station: what is section three of PACE?

police must give suspect a copy of the stop and search

outside station: what is section 117 of PACE?

police can use reasonable force

outside station: what is the Code A in PACE?

the police can stop and search based on age, race, gender, sex, appearance etc

outside station: what is the CJPOA 1994?

the Criminal Justice and Public Order Act - Section 60 gives police the power to stop and search any person in a defined area and during a specific time period. police must believe serious violence will take place or has taken place and that dangerous items are being carried

outside station: where do police powers of arrest come from?

section 24 PACE - the police can arrest if they suspect a person is about to/is/has committed a crime (or reasonable grounds)

outside station: what is section 28 of PACE?

(1): told you’re being arrested (3) told for the reasons for the arrest

outside station: what is section 34 of the CJPOA 1994?

the suspect must be cautioned and have the right to silence

ALSO

if the arrest is unlawful, it’s a false imprisonment

inside station: what is section 56 of PACE?

right to have someone informed of your arrest, but this can be delayed if the police think it’s a tip off. under 18s or vulnerable people must have an appropriate adult

inside station: what is section 58 of PACE?

the right to a solicitor or duty solicitor, must be told about your rights

inside station: what is section 76 of PACE?

evidence gathered through torture is inadmissible

inside station: what is Code C of PACE?

sets out the rights at the station like food and drink, sleep 8 hours a day all in one go and also a ventilated room

inside station where are time limits set out?

section 41 of PACE: police can hold a suspect for 24 hours, 36 if it’s been extended by a superintendent and the magistrates can extend it to 96 hours. suspected terrorists can be held for 2 weeks

inside station: can access to a solicitor be denied?

access to a solicitor or a phone call can be denied if it’s in the public interest to prevent other crimes being committed (Ibrahim)

inside station: what is section 76 of PACE?

states evidence obtained through torture is inadmissible and s78 does not allow evidence if the accused didn’t have legal representation

what four rights are set out in article 8?

the right to a private life, family life, home and correspondence

can article 8 be interfered with?

any interference must be necessary in a democracy, meet a legitimate aim, proportionate and in accordance with the law. the state has a positive obligation to ensure article 8 is upheld

what type of right is article 8?

a qualified right and it can be limited in certain situations - national security, public safety, economic well-being of the country, prevention of crime/disorder, protection of health/morals or the protection of the rights/freedom of others

article 8: private life

this has a wide meaning - it includes sex life, gender, names (Johannson), office (Niemietz), touching the body (Wainwright)

article 8: private life, balance with 8 and 10

Campbell says the right to a private life must be balanced with article 10 - neither takes precedence over the other. children have a greater right to a private life (von Hannover)

article 8: family life

the right to enjoy family relationships without interference from the state (children, grandchildren) - this can be restricted in abuse or care proceedings as the courts consider the interests of children (Johannsen)

article 8: home

doesn’t mean the person has the right to a house/home (McDonald) - a person has the right to enjoy their home peacefully (Khatun)

article 8: correspondence

includes texts, phone calls, emails, letters. the right can be restricted if theres a good reason e.g national security

article 8: correspondence at work

Barbulescu states that at work, the right to a private life is reduced - most forms allow some personal internet use but they must have clear policies

what type of right is article 10?

a qualified right - the state can restrict a citizen’s rights, but any interference must be proportionate. lawful, justified and necessary in a democracy

article 10: what do member states have?

a wide margin of appreciation when limiting rights

article 10: what’s the first right?

the freedom to hold opinions - can’t be restricted, the state can’t indoctrinate citizens (Vogt)

article 10: what’s the second right?

the freedom to impart information and ideas - a number of expressions are covered: political, religious, artistic. a person is allowed to shock, offend and disturb (Handyside)

article 10: can you interfere with the press?

any interference with the press must be justified, they do not have to reveal their sources (Goodwin) - do have to check sources to avoid defamation

article 10: axel springer

set out criteria to decide if article 8 or 10 takes precedence (is it in the public interest, how was the information obtained, is it accurate, notoriety of the person, subject involved, consequences of publication)

article 10: what is political expression?

has a wide meaning and difficult to limit, it’s very important in a democracy and the government should be accountable so you should be able to criticise them (Incal v Turkey)

article 10: what is artistic expression?

states have a wider margin of appreciation (Otto Institute)

article 10: is hate speech included?

hate speech does not come under article 10 (Garaudy) - context, country etc

article 10: what is the third right?

the freedom to receive information and ideas - citizens should be able to gather information. Guerra: no positive obligation on the government to collect and disseminate information

article 10: when can the rights be restricted?

a) national security (Spycatcher case), b) prevention of crime and disorder (Brind), c) health and morals (Handyside), d) reputation and rights of others (Goodwin) e) disclosure of information in confidence (Stoll), f) maintain authority and impartiality of the judiciary (Sunday Times)

what is obscenity?

an item likely to “deprave” and “corrupt” the people seeing it. to “deprave” means to pervert or morally corrupt

do you need to prove intention for obscenity?

there’s no need to prove intention for obscenity e.g Lady Chatterly’s Lover book was banned

where does obscenity come from?

Obscene Publications Act 1959

what is section 1(2) of obscenity?

states that publication has a wide meaning and includes a range of media e.g films, sounds, pictures etc

what is section 2(1) of obscenity?

states that it’s an offence to publish an obscene article for gain

what is the defence to obscenity?

comes from section 4 of the act - that it’s for the public good e.g interests of science, art and education

how is the law for obscenity further restricted?

the OPA 1964 further restricts it by including gain for another

what’s the alternative charge to obscenity?

outraging public decency which is a common law (Shaw, Gibson)

where does defamation come from?

The Defamation Act 2013 - there are two forms: libel and slander

what does the claimant have to prove for defamation?

that an ordinary person would think worse of the claimant, claimant is identified, it has to be published to a third party and it must be likely to cause serious harm

what is the first defence to defamation?

truth - comes from section 2 DA 2013 and means that the d shows the information is substantially true (Depp)

what’s the second defence to defamation?

honest opinion - comes from section 3 DA 2013 where a person has good reason to believe it’s true based on facts at the time

what’s the third defence to defamation?

public interest - comes from section 4 DA 2013 - d needs to check the nature of sources, whether there were attempts to verify the truth or the extent to which d has the opportunity to comment

what’s the fourth defence to defamation?

for the internet with innocent dissemination - means companies that post stories can’t be sued

what’s the fifth defence to defamation?

privilege - two types:

absolute privilege where MPs and judges cannot be sued for what they say

qualified privilege includes academic journals and references in good faith - it’s published and is a fair and accurate report on a matter of public interest

what are the three rights under article 11?

freedom of assembly, association and to form/join a trade union

what type of right is article 11?

a qualified right - any state interference must be for a legitimate aim, necessary in a democracy and proportionate (Laporte)

what does the state have under article 11?

a positive obligation to ensure people’s rights are protected and they mustn’t interfere (negative obligation)

what are legitimate reasons to interfere under article 11?

national security, protection of health and morals (Larmela), lockdown restrictions, public safety, protection of rights and freedoms of others

what is the first right under article 11?

freedom of peaceful assembly - people are allowed to meet in public, march and protest.

this right was restricted in Cisse on health grounds

what do people have the right to do during protests under article 11?

counter protest (Austria) - a protest may annoy and be offensive to others. Appleby established that the owner of land can prohibit a protest as long as there’s another place to protest

what’s the second right under article 11?

freedom of association with others - a political party is classed as an association (Redfearn). the meaning of association is not defined, but it does not mean the right to choose who you spend time with

what’s the third right under article 11?

right to form and join a trade union. you also have the right to not be forced to join one (Young v Uk)

where are judicial review cases heard?

the KBD of the high court (administrative court) - decisions of a public body are reviewed

what classes as a public body?

the government, health authorities, police, prison, local authorities

how long does a claimant have to bring a judicial review case?

3 months

what must a claimant have in a judicial review case?

‘locus standi’ - sufficient interest in the case

what do you have to prove in judicial review?

did the body act ultra vires or lawfully?

what are the three grounds to bring a judicial review case?

illegality, procedural impropriety, irrationality and proportionality

what is illegality in a judicial review case?

the decision makers have acted without power or exceeded their power or misapplied the law (Fulham, Miller)

what is procedural impropriety in judicial review cases?

decision makers fail to follow the correct procedures set out in the law (Aylesbury Mushrooms)

what is irrationality and proportionality in judicial review cases?

the decision can be quashed if it’s unreasonable. Wednesbury said this means no reasonable body would have reached the same decision. the decision in Rogers was unreasonable and irrational

what are conflicting interests in judicial review cases?

Youssef stated that balancing conflicting interests must be considered: does the potential do nager posed by the claimant outweigh his liberties? it was not disproportionate to put him on the sanction list

what remedies can be given for judicial review cases?

quashing orders, prohibiting orders, injunctions, mandatory orders, declarations and damages

what is justice?

fairness - it’s subjective: what one person believes to be just, another may not

how is the law fair?

the law aims to be fair in how it treats people - it punishes wrongs and protects rights

what are the categories of theories of justice?

natural law theories and positivist theories

give an example of a natural law theory

Aquinas- said that laws should protect life, family and promoter the good e.g murder is illegal

what is positivism?

it emphasises the importance of written laws and legal systems rather than morals in determining what is just - austin says the law is separate from morals

what is the first type of justice?

procedural justice: systems are in place to ensure justice e.g detention at the police station - 96 hours max

what is the second type of justice?

substantive justice: the content of the law is just and legal rules are in place e.g people have human rights and freedoms under the ECHR

what is the third type of justice?

distributive justice: do all groups of people have equality in law and access to justice? e.g nobody is above the law under the rule of law

what is the fourth type of justice?

corrective justice: law claims to correct wrongs e.g retribution and prison in criminal law and remedies/damages in civil law