Solicitors Qualifying Examination

ECHR, Art 2, 3, 5 & 6 | Public Law – SQE1 & SQE2 Exam

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ECHR, Art 2, 3, 5 & 6

Intro
• Articles 2, 3, 5 and 6 respectively protect the right to life, the prohibition
of torture, the right to liberty and security and the right to a fair trial.
• To assess any claims that C and Y may bring under the Human Rights Act
1998 (HRA 1998), we must first consider whether they each meet the
preliminary requirements to bring a claim.
Prelims
Standing
• Under s 7(1) HRA 1998, victims of unlawful acts by public authorities may
bring claims against the authority.
• S 7(7) makes clear that ‘victim’ has the same meaning as under Art 34
European Convention of Human Rights (ECHR): a person directly
(actually or potentially) affected by action or inaction, per Klass v
Germany.
• APPLY.
• Legal persons include organisations with legal personality (The Sunday
Times v UK) – corporations, trade unions / political parties
• Groups can only bring action when their rights as an organization are
violated
o E.g. Liberty v UK – NGO claimed Art 8 violation in interception of
its communications
• Person = unborn foetus = unresolved due to regional/religious
sensitivities (Vô v France)
• Applicant may be indirect victim in exceptional circumstances (e.g. family
members in right to life cases where victim dead)
• Applicants may be persons without close relative status very
exceptionally where egregious violation of ECHR (Centre for Legal
Resources on behalf of Valentin Campeanu v Romania – death of 18yo HIV
positive + severe mental disability in neuropsychiatric hospital)
© Liam Porritt 2020 2
Public authority
• Claims under HRA 1998 must be made against a public authority, per s
6(1) HRA 1998.
• Here the police / prison / court / immigration officers are a core public
authority in accordance with the criteria set out by Lord Nichols in Aston
Cantlow v Wallbank: they have special powers, must act in the public
interest and are publically funded.
• Here, X is not a core public authority as they carry out functions of a
private nature (s 6(5) HRA 1998), and are not publically funded.
• We thus consider whether it is a hybrid public authority per the factors
set out by Lord Nichols in Aston Cantlow v Wallbank:
o Exercising statutory power
o Providing a public service
o Publicly funded in respect of function
o Taking place of government / local authority
Timing
• As no date is given, we assume that / Given the date [X], the action is
being brought within a year of X and Y’s releases, as required by s 7(5)(a)
HRA 1998, although the court may extend this this in exceptional
circumstances (s 7(5)(b) HRA 1998).
• They ought bring a claim as soon as possible.
Jurisdiction
• Under Art 1 ECHR, a person may bring a claim in respect of an event
occurring in a signatory state, (regardless of their nationality).
• Per Al-Skeini and Others v UK, in which the UK was deemed to have
breached ECHR when UK armed forces killed 6 Iraqi civilians, claims may
be brought where a signatory state has a sufficient degree of control
and authority over the individuals (and not merely the territory, as in
Bankovic v Belgium), as the UK had over these individuals in Basra.
• ECHR also applies to all British servicepeople (Smith, Ellis and Allbutt v
MoD).
© Liam Porritt 2020 3
Answer structure
1. Article Engaged?
2. Violation?
a. Limitations to the right within the article
b. PBL for Art 5(1)
3. Statutory defence, under s 6(2) HRA 1998 of acting as required by
statute, where provision is made under statute
4. S 3 or S4 HRA 1998, where there is statute (i.e. where s 6(2)
applies)?
5. Remedy?
© Liam Porritt 2020 4
Article 2 ECHR: Right to Life
• Right to life is a limited / narrow right = it can only be interfered with by
the State under Art 2(2) ~ taking of life for ‘law enforcement purposes’
• Art 2(2) permits deprivation of life where use of force no more than
absolutely necessary
a) In defence of any person from unlawful violence
b) In order to effect a lawful arrest or to prevent the escape of a
person lawfully detained
c) In action lawfully taken for the purpose of quelling a riot or
insurrection
McCann obligations
• McCann, Farrell and Savage v UK, in which British security forces shot 3
alleged IRA members dead, set out two obligations:
1. General duty to refrain from unlawful killing (negative) and to
safeguard life (positive) (see below)
Ø Problem: what is unlawful killing? Agents of state often claim they
believed killing to be necessary = no Art 2 breach by SAS soldiers
in McCann
Ø Therefore, issue framed as one of duty over command, control
and training such that they are able to decide when to apply
deadly force (McCann: UK breached Art 2 on this ground)
Positive obligation to safeguard life
Ø Positive operational obligation on state to protect life of those at
risk of being murdered / suicide (Osman v UK – here no Art 2
violation) where:
o Authorities know or ought to have known there is a real
and immediate risk to life;
o And failed to take appropriate measures (R (A) v Lord
Saville – State did not oblige IRA soldiers to come and give
evidence as there would be a risk to their lives
Ø In Amin, the court stressed the state’s duty to protect those
involuntarily in custody, here being attacked by a known racist at
Feltham Young Offenders’ Institution, + to investigate, involving
the family of deceased.
Ø In Rabone v Pennine Care, assuming responsibility of a patient who
presented a real and immediate suicide risk, meant there was an
Art 2 breach in the failure to continue her detention
2. State’s duty to investigate all situations in which life is taken
Ø Investigation: independent, on own initiative, involving family
(Amin)
Ø Flawed inquests in NI ~ failure to require police to give evidence,
lack of independence of officers investigating + lack of disclosure =
breach of Art 2 + 6 (Jordan v UK, McKerr v UK, Kelly & Others v UK)
Ø Decision not to prosecute individual police officers due to a lack of
evidence, not want of investigation (Armani Da Silva v UK)
© Liam Porritt 2020 5
Article 3: Freedom from torture, and inhuman and degrading
treatment or punishment
• Absolute right permitting no derogation
• The conduct of the applicant is not a factor (Ireland v UK)
Negative obligation
• Negative: obligation not to undertake torture / degrading treatment
Defining ‘inhuman and degrading treatment’
• Pretty v UK:
o Inhuman = ill-treatment that attains a minimum level of severity
and involves actual bodily injury or intense physical or mental
suffering
o Degrading = humiliating or debasing treatment capable of
breaking an individual’s moral or physical resistance
• Assessment of minimum level of severity relative, depending on circumstances of the
case
o Context of treatment
o Manner of execution
o Duration
o Physical and mental effects
o Impacts on health of the person (both positive and negative) (R (B) v Responsible
Medical Officer, Broadmoor Hospital)
Defining ‘Torture’
• Aggravated, deliberate and cruel form of treatment or punishment,
distinguished from mere ‘inhuman treatment’ to attach ‘special
stigma’ (Ireland v UK)
o Five techniques such as wall-standing (limbs outstretched stood
next to wall); sleep deprivation; intense noise; hooding;
withholding food
o Initially torture = physical element
o Grand chamber: ‘inhumane treatment’ rather than torture, as more
psychological than physical – lack of consensus as to how to
distinguish
• Aksoy v Turkey: stripped naked, strung up with arms tied behind back;
electrodes to genitals; water thrown over him; regularly beaten = torture
• Aydin v Turkey: C raped, beaten, stripped and sprayed with water =
torture (even without rape possibly)
© Liam Porritt 2020 6
Prison conditions and sentencing
• Napier v The Scottish Ministers – Art 3 violation (degrading treatment) =
lack of toilet facilities and small size of cell, exacerbating facial eczema
o Prisoner entitled to have case for removal considered on
individual basis because of circumstances
• R (Spinks) v Secretary of State for the Home Department – failure of the
state to release a life-sentence prisoner to get chemotherapy (as opposed
to medication from prison medical centre, which required handcuffing) ≠
Art 3 breach, as conduct not serious and wholly unacceptable
• Vinter and Others v UK [2013] – life sentences ~ ‘whole life orders’, with
release impossible except on restricted compassionate grounds at
discretion of SoS = contrary to Art 3 ECHR, and there must be
‘reducibility’ via a clear means of review
o Attorney-General’s Reference [2014] – CoA: disagrees with
Strasbourg ~ whole-life tariff regime is compatible with Art 3,
deeming provision for release in exceptional circumstances
o R v McLoughlin & Newell – ditto.
Positive obligation
• Positive: R (Bagdanavicius) v Secretary of State for the Home Department:
authorities must take reasonable steps to prevent Art 3 violation where
they know / ought to know that likely to expose to risk of Art 3 violation
Intra-territorial threat
• Policy of dispersing asylum seekers throughout UK in Gezer v Home
Secretary – employs the spectrum approach set out by Laws LJ in
Limbuela, weighing the interest of the Turkish individuals threatened by
racist abuse and the broader interests of society = here, the courts
ordered the State to move the Turks away from Glasgow
Extra-territorial threat to detainees
• Soering v UK – duty to act against known extra-territorial threat
o Custody in UK of man wanted for extradition to Virginia on capital
murder charge, with Virginia seeking death penalty
o At that time, capital punishment not yet outlawed under
Convention
o Instead, successfully argued that process of capital punishment in
USA (nature of legal proceedings lasting years, producing ‘death
row phenomenon’ as psychological condition) = inhuman or
degrading treatment under Art 3
© Liam Porritt 2020 7
• Chahal v UK – extention of Soering to apply to non-state actors
representing possible cause of Art 3 treatment
o Activist of Sikh separatism in India in custody in UK
o Deportation sought
o No official risk, but risk from rogue elements in Punjab police
• R (on application of Bagdanavicius) v Secretary of State for Home
Department [2005] – for Art 3 to apply against deportation, must be
BOTH (i) risk of suffering serious harm AND (ii) lack of provisions for
prevention of this harm in territory of deportation = here, (ii) was not
fulfilled
• R (EM (Eritrea) and others) v Secretary of State for the Home Department [2014] – duty
not to deport even when the country to which X is to be deported does not have a
‘systemic’ risk of inhuman and degrading treatment (i.e. Italy here)
• Al-Saadoon and Mufdhi v UK (2010) – duty not to subject people to fear of extraterritorial execution
o Here, two Iraqis transferred by British authorities in Basra to the Iraq High
Tribunal in relation to the deaths of British soldiers ~ men at risk of execution
for a number of years = psychological suffering contrary to Art 3
• N (FC) v Secretary of State for the Home Department [2005] – individuals
subject to expulsion cannot claim entitlement to remain to receive
medical or social assistance
o Deportation of an asylum seeking Ugandan with HIV AIDS to
Uganda, where medical treatment problematic (although possible)
≠ breach of ECHR Art 3, on practical grounds that Art 3 could not
require CSs to admit and treat AIDS sufferers for the rest of their
lives
• D v UK [1997] – exceptional circumstances to resist expulsion on
medical grounds = medical condition at such a critical state that there are
compelling humanitarian grounds for not removing them to a place
which lacks the medical and social services which they need to
prevent acute suffering.
Duty to investigate for police
• DSD and NBV v Commissioner of the Metropolis [2018] – breach of police
obligation to conduct an effective investigation into the crimes of taxi
driver, Worboys = failure to prevent Art 3 violation of Cs by Warboys
o Majority: there is an operational duty on the police to conduct a
proper investigation (i.e. they are liable operationally and
systemically under the Convention)
o Lord Hughes: liability only structurally/systemically under the
Convention
© Liam Porritt 2020 8
Article 5 ECHR: Right to Liberty and Security
Article 5(1)
Art 5(1) Engaged? – Deprivation or restriction of liberty
• Art 5(1) is engaged as arrest by the State followed by detention
constitutes a deprivation of liberty, rather than a mere restriction of
liberty: A is likely kept under lock and key which is identified as
deprivation in Engel v Netherlands, in opposition to restriction to a whole
building.
• Art 5(1) is not engaged where there is a mere restriction on liberty
(Engel v Netherlands – consider measure and nature: soldiers confined
to building, not under lock and key, and continuing to perform military
duties VS locked in cell in disciplinary unit w/out being able to leave)
o Distinction is of degree and intensity not nature or substance
(Guzzardi v Italy)
Control Orders
• Response to ruling in A and Others = Prevention of Terrorism Act 2005
• S1 – control orders can impose a wide variety of obligations on individuals suspected of
terrorist activity (foreigners + British citizens)
o Prohibition on modes of communication / internet use
o Travel / movement restrictions + electronic tagging
o Curfews
o Restrictions on persons with whom they can associate
• ‘Non-derogating’ control orders = made by SoS where no incompatibility with Art 5
ECHR (s 1(2)(a)) + w/ permission from court (s3)
• Abolished in 2011, after 52 people subjected to such orders
Guzzardi v Italy (1980)
• Restrictions on Mafioso = confined to 2.5km2 on island; family lived with
him; constant supervision and unable to leave dwelling 10pm-7am;
permission from police to use phone; limited work / social opportunities
• ECtHR: Engel principles = overall, treatment had cumulative impact of
deprivation of liberty akin to open prison (rather than mere restriction)
• Limitations under Art 5(1)(a)-(f) do not apply ~ preventing committing
an offence (5(1)(c)) not sufficient = must be prevention of a concrete and
specific offence
© Liam Porritt 2020 9
Application to UK law – PTA 2005
• Re JJ [2007]– Certain non-derogating control orders = deprivations of
liberty
o 18-hour curfew + prohibited social contact with anybody who was
not authorised by Home Office + residences subject to spot
searches + electronically tagged + no modes of communication
except fixed telephone line in flat
o SoS had no power to make an order incompatible with Art 5 – therefore, the
courts felt obliged to quash the whole order, rather than certain parts of it, given
that the Art 5 breach was on holistic grounds
o Lord Hoffmann (dissenting): distinguished literal physical restraint (Art 5 =
unqualified right) from qualified rights of freedom of movement,
communication and association = felt that D’s situation was not comparable to
prison
§ Also felt that court could modify the order to make it lawful
• Home Secretary v AP [2010] – 16-hour curfew usually not Art 5 breach,
but here was obliged to live in town 150 miles from friends + family =
unusually destructive of life he would otherwise have been living ~ Art 5
breach
• Home Secretary v AF [2007] – 14-hour confinement to home overnight; no
communication equipment; restricted movement to nine square miles;
restrictions on visitors = not Art 5 breach
Reform of Control Order Regime
• 2011 – control orders replaced by Terrorism Prevention and Investigation Measures (TPIMS) = more flexible and less intrusive
• Some argue this does not go far enough to ensure compliance with ECHR requirements
© Liam Porritt 2020 10
Kettling
• Cordon around crowd during protest to confine to specific area
Austin v Commissioner of Police for the Metropolis
• Protests by anti-capitalist protestors
• Evidence that there might be looting / violence + similar protests resulted
in breakdown of public order
• Police officers formed cordon around protestors (when they gathered
earlier than expected), with bystanders caught in cordon
• 7 hours before people released from cordon
• Measures distinct from imprisonment = akin to other crowd control
measures = not Art 5 breach if measures proportionate and not
imposed arbitrarily
• Austin v UK – ECtHR agrees – Engel criteria require that the measure and
nature of the restriction be considered = have regard for specific
content and circumstances
o Here, cordon = least intrusive and most effective means of
preventing serious injury / damage
Art 5(1) – application
Under Art 5(1), no one shall be deprived of liberty except in accordance with:
1. The six circumstances (a)-(f); and
2. A procedure prescribed by law
(a)-(f) limitations
• In the cases of A and B, the police rely on Art 5(1)(c) permitting an arrest
on the grounds of reasonable suspicion of having committed an offence or
reasonably considered necessary to prevent the commission of an
offence, or fleeing after having done so.
1. For A, we consider whether there appears reasonable suspicion of having
committed an offence, employing the test of Fox, Campbell and Hartley v
UK: reasonable suspicion requires ‘evidence of facts or information that
would satisfy an objective observer that the person concerned may have
committed the offence’
Ø Previous convictions of two of the people arrested for terrorism
were not sufficient on their own
Ø There should have been further investigation prior to arrest
Ø Anonymous tip-off does not satisfy requirement that information
would satisfy an objective observer that the person concerned
may have committed the offence
© Liam Porritt 2020 11
2. We second consider on the same basis of reasonableness in Fox, as clear
from Ostendorf v Germany, whether arrest may be reasonably necessary
to prevent the commission of an offence, or fleeing having done so.
Ø Arrest would likely be justified following the UKSC approach in R
(Hicks) v Commissioner of Police for the Metropolis, where
detention of someone during the royal wedding to prevent
violence was justified.
Ø By contrast, the ECtHR made clear in Ostendorf that Art 5(1)(c)
only permits pre-trial detention in connection with criminal
proceedings, and thus a football hooligan could not be lawfully
detained during a match to prevent violence.
In accordance with a procedure prescribed by law
The arrest must also be prescribed by law. This requires, per Sunday Times v UK,
that the law be:
a. Adequately accessible, which here it is as it is statute; and
b. Formulated with sufficient precision to enable citizens to foresee the
consequences (legality) of a given action, although not with absolute
certainty, per Müller v Switzerland.
Ø Here, the degree of imprecision goes beyond / is akin to the
flexibility of the word ‘obscene’ that enables the law to move with
the times in Müller v Switzerland.
Ø In contrast to the relatively narrow definition of blasphemy at
issue in Wingrove v UK, with a fairly narrow margin for what is
blasphemous, here, the description of X is nebulous and lacking
clear indication on the scope and manner of the exercise of
discretion as to what is X.
Ø Steel and Others v UK – court order to be ‘bound over’ for a breach of the peace
was sufficiently clear
o Bound over = pay money and get it back if keep peace after period of
time
o Applicants refused to be ‘bound over’ so imprisoned
o Breach of peace defined by case law
o Binding over order + imprisonment allowed by Statute
o Therefore, in accordance w/ law
Ø This seems closer / to fall short of the ‘good behaviour’
formulation in Hashman & Harrup v UK.
o Bound over to be of good behaviour after interrupting fox
hunt, due to contra bonos mores behaviour
o CBM = wrong to majority of contemporary citizens =
imprecise
o Therefore, ‘good behaviour’ imprecise
o Violation of Art 10 right to freedom of expression
© Liam Porritt 2020 12
c. There are / is a lack of safeguards against the unfettered or arbitrary use
of these powers of arrest.
Ø Who may exercise the power? – there is / is no need for higher
authorisation (as was required in Gillan v UK, where the consent
of the Secretary of State was required to grant a stop and search
order, but this was still not deemed to be PBL)
o Gillan: s 44 Terrorism Act 2000 – senior police officer can, where
‘expedient’ grant stop and search of any vehicle in area for
prevention of terrorism, w/ confirmation by SoS = ‘expedient’ is too
broad, and short of ‘necessary’ + black and Asian persons subject to
greater searches, with no terrorism-related arrests
Ø Is the scope limited?
o As in / Distinguished from Malone v UK, where the SoS
could issue a warrant without restrictions on the purpose
or manner of its exercise, there used for phone tapping,
there is (no) prescribed situation (i.e. extent of
endangerment) or manner in which the power is to be
exercised.
o As in / Distinguished from Roberts, there is (no)
requirement that the suspicion be reasonable and that the
degree of endangerment be ‘serious’. Arrest is also a more
serious ECHR infringement than a stop and search, which
here was exercised for a limited time in a limited
geographical area.
§ R (Roberts) v Metropolitan Police Commissioner: s 60 Criminal
Justice and Public Order Act 1994 – senior police officer can,
where expedient and where reasonable belief that incidents
involving serious violence may take place in locality, give
authorisation to stop and search anyone for 24hrs = stronger
grounds for authorisation, with reason recorded in writing +
limited time and geographical area + stop and search
requirements under PACE 1984 and Equality Act 2010 ~
therefore, not incompatible.
Ø However, s41(1) Terrorism Act 2000, giving officers the power
to arrest a person without warrant whom the officer ‘reasonably
suspects’ is ‘concerned in the commission, preparation or
instigation of acts of terrorism’, demonstrates that broad
provisions may be PBL, especially in relation to terrorism.
o Compare + conclude
Statutory defence
• The police / D may raise the statutory defence of acting as required by
statute, under s 6(2) HRA 1998.
• Apply – do arrests comply with statute?
Response of the court
• In response to these violations, the court may either read the legislation
in accordance with the ECHR under s 3 HRA 1998 or may, if this is not
© Liam Porritt 2020 13
possible, as a ‘last resort’ (Lord Hoffmann, R v Home Secretary ex p.
Simms) declare the statute incompatible under s 4 HRA 1998.
Subject matter?
• As this is / is not a legalistic issue (e.g. considering the grounds for
arrest), the courts likely (do not) have institutional competency, as in R v
A, which concerned the used of evidence in court, where Lord Steyn
advocated a bold approach, striving to find a possible Conventioncompatible interpretation.
• In opposition to / Akin to Bellinger, this is (not) an issue of such a
substantially social nature as marriage and gender reassignment.
o Apply considering whether statute has social implications /
concern
• Consider also whether any change would have cost implications which
the court is ill-equipped to evaluate, as in Re S and Re W.
The possibility of reading down words – can s 3 be achieved?
• It seems difficult / unproblematic to read in words to make the statute Art
5 compatible: APPLY SUGGESTIONS.
• In Re S and Re W, Lady Hale’s drastic statutory reinterpretation, which
departed, per Lord Nicholls ‘substantially from a fundamental feature of
the Act’, was overturned by the House of Lords.
• It is (not) akin to Ghaidan v Godin-Mendoza, where the court read
‘husband and wife’ to mean a relationship of social or sexual intimacy,
whereby the substance of the legislative provision may be maintained.
• Where applicable: There is an express term, akin to the term ‘foreigner’ in
A and Others v Home Secretary, against which the courts cannot read,
without changing the substance of the provision.
Conclude
• If the courts declared the provision incompatible under s 4, no remedies
under s 8 HRA would be available to A, as the declaration is not binding
on the parties (s 4(6) HRA 1998).
• However, if the courts used their s 3 powers, A would likely to entitled to
the remedy of damages, his arrest [APPLY, e.g. having not been made on
‘reasonable’ suspicion (reasonable read down by the courts)].
© Liam Porritt 2020 14
Art 5(2) to 5(5) – procedural rights
Art 5(2)
• Informed promptly of reasons for arrest + charges
o Fox – being arrested on suspicion of being a terrorist deemed
insufficient ~ but note TA 2000 s 40(1)(b)
Art 5(3)
• Art 5(3) is engaged as A is detained and thus should be brought promptly
before a judge to prevent the ‘ill-treatment and abuse of power by law
enforcement officers’ (McKay v UK)
• Consider whether there is a breach of statute – how long are detentions?
• From Ipek v Turkey, it is apparent that there is no ‘bright line’ as to the
limits on detention – consider TIME + PURPOSE OF EXTENDED
DETENTION
o Brogan v UK – terrorist investigations can justify prolonging period
before being brought before judge, but 4 days + 6 hours w/out
judicial authorisation = too long
o McKay v UK – suggests maximum period of 4 days (here just 36
hours = fine), but circumstances may dictate that shorter periods
may still be incompatible with Art 5(3):
o Ipek v Turkey – 16 year-old boys detained for 3 days + 9 hours
before court = minors not allowed access to lawyers w/out
investigative measures by police
o Brogan v UK – ECtHR suggests a restrictive approach on basis of
French translation as ‘aussitôt’ (immediately)
o PACE 1984 perhaps suggests that the delay here may be excessive
without a magistrate’s authorisation – under PACE, 36 hours is the
maximum detention without authorisation.
• Statutory defence likely
• NB courts unlikely to s3 interpret as there is an express term, i.e. the time
limit, akin to the term ‘foreigner’ in A and Others v Home Secretary, against
which the courts cannot read, without changing the substance of the
provision.
© Liam Porritt 2020 15
Art 5(4)
• Person detained / arrested entitled to take proceedings re: lawfulness of
detention to court/bodies of judicial character speedily + release ordered
if unlawful
o Hirst v UK – delays of 2 years between reviews by Parole Board =
breach
§ Where automatic periodic review required by national law,
decisions must come at regular and timely intervals
§ Maximum period determined in light of circumstances, but
period longer than 1 year generally not reasonable
Art 5(5)
• Right to compensation for Art 5 breach = only if case goes to ECtHR, as s 8 HRA 1998
provides for remedies in UK courts
Art 5 and Detention after arrest under UK legislation (Art 5(3))
PACE 1984
• Person can be detained before charge if custody officer has reasonable grounds to
believe detention necessary (s 37(2)):
o To secure / preserve evidence
o To obtain evidence through questioning
• 24-hour detention without charge from arrival at police station (s 41(7) PACE 1984)
o 36-hour detention for same ends as under s 37(2) can be authorised (if
indictable offence + diligent and expeditious investigation) by superintendent or
higher (s 42(1))
§ McKay v UK – this delay before magistrates’ court authorisation is
acceptable under ECHR
o > 36 hours = magistrates’ court warrant needed (similar conditions to s 42(1))
(ss 43 + 44(1))
o 96 hours = maximum period of detention (s 44(3)(b) PACE 1984)
TA 2000
• s 41(1) arrest
• 48-hour detention on police authority (s 41(3))
• 7-day detention = senior judge / designated District Judge by warrant (para 29, Sch 8, TA
2000)
• 14-day detention = reauthorization by courts (Sch 8)
o 28-day detention under TA 2006 repealed by s 57 Protection of Freedoms Act
2012 = back to 14 days
• My opinion: Art 5(3) ECHR + McKay requires that people not be detained for longer than
4 days before being brought before a judge = this is the case here, as judicial
authorisation preventing abuse of power by police officers is required after 48 hours (so
even with minors involved, this seems well under the 3 day 9 hour period in Ipek)
• However, with longer periods, there could be an issue with prompt notification of reason
for arrest + charges (Art 5(2)), as here there is a 14-day lapse before this.
© Liam Porritt 2020 16
Derogation from Art 5
• Art 5 derogation in emergency situations ‘threatening the life of the nation’ (Art 15
ECHR)
• UK derogations:
o NI from 1957-1984 + 1988-2001 (due to decision in Brogan = 4 days 6 hours
too long)
o December 2001 – 2005 = 9/11 attacks ~ derogation permitted detention on
suspicion of international terrorist activities (Part 4 Anti-Terrorism, Crime and
Security Act 2001); withdrawn in 2005 = HoL: unlawful derogation (A and
Others v Home Secretary)
A and Others v Home Secretary
• Following Art 15 derogation, states may not go beyond the ‘extent strictly required by
the exigencies of the crisis’.
• Anti-terrorism, Crime and Security Act 2001, s 23 = Home Secretary can imprison any
non-national reasonably suspected of being terrorist.
• Detainees appealed to HoL, which held that there was a public emergency, but that the
measures adopted by the Home Secretary went beyond what was required by the
exigencies of the situation – in its singling out of ‘foreign’ terrorist threats
• Lord Walker emphasised failure of govt to show that less severe measures than
incarceration would not have sufficed
• Hoffmann (dissenting): fundamentally opposed to the unconstitutional incarceration of
anyone without trial at the discretion of a single cabinet member (HS)
o Sending clear message to restrict executive from justifying restriction of
freedom on the grounds of national security
o NB recent arrests of Stansted protestors under Terrorist laws
© Liam Porritt 2020 17
Article 6: Right to a fair trial
• Art 6 only applies where someone is charged (i.e. is going to trial)
• Art 6 is a limited/narrow right
Art 6(1) – right to a fair trial
• Art 6(1) – right where
o Civil rights and obligations determined
§ Bank Mellat v HM Treasury (No 2) – Treasury made order prohibiting
business with Mellat; Art 6 not engaged as here the Treasury was not
acting as a tribunal; instead, Mellat had a right to apply to High Court
for the order to be set aside (and this was where Art 6 was engaged)
o Criminal charges determined
… to…
o ‘Fair and public hearing (not necessarily trial)
o within a reasonable time
o by an independent and impartial tribunal established by law’
#1 Impartiality of courts
• Determination of rights ‘… by an independent and impartial tribunal established by law’
• Findlay v UK:
i. Independent
§ Manner of appointment of members of court
§ Term of office of members
§ Guarantees against outside pressures
§ Presentation of an appearance of independence
ii. Impartiality
§ Subjectively free of personal prejudice or bias
§ Objectively impartial
o Court martial system contrary to Art 6(1) due to role of convening officer, with
powers to:
§ Choose charges
§ Appoint members of court + prosecuting and defending officers
§ Dissolve the court martial
§ Give effect to the decision of the court martial by ratifying it (only
effective once ratified)
o Therefore, Armed Forces Acts 1996 + 2006 ~ new system, with permanent
standing court presided over by civilian judges
• McGonnel v UK – Bailiff of island of Guernsey acted as judge in planning appeal =
contrary to Art 6(1), as involved in development plan at issue in the planning appeal ~
not impartial from an objective viewpoint, regardless of actual subjective impartiality of
decision
© Liam Porritt 2020 18
#2 Timely process
• Per Lord Bingham in HM Advocate v Watson, Burrows and JK, A has a right
to trial within a reasonable time under Art 6(1), depending on the
complexity of obtaining evidence and the severity of the offence.
o 20 months from date police officers charged with perjury and trial
not excessive as required for thorough investigation
o 27 months from date 14 year-old boy charges with sexual offences
and trial = excessive, due to age + significant period of inactivity by
authorities
#3 Access to justice – legal aid (Art 6(1) + Art 6(3)(c))
• A has a right to effective access to the courts (Art 6(1)) and to free legal
representation where the interests of justice so require (Art 6(3)(c)).
• R (Gudanaviciene and Others) v Director of Legal Aid Casework and Lord
Chancellor – Question is whether D can fairly self-represent in
circumstances
o Exceptional case funding (ECF) only available where would be a breach of Art 6
not to provide, with Legal Aid, Sentencing and Punishment of Offenders Act
2012 setting the threshold for ECF ‘very high’ ~ CoA: no basis for this in ECtHR
case law
• Airey v Ireland – proceedings must be able to be brought with free legal
aid, or through sufficiently simple proceedings that legal
representation is unnecessary.
o Wife of an abusive alcoholic unable to bring proceedings because complex and
unable to afford legal representation = Art 6(1) violation
• Benham v UK – where deprivation of liberty at stake (as here – nonpayment of community charge has penalty of up to three years’
imprisonment), especially where law difficult to understand, legal
representation must be provided where insufficient means
© Liam Porritt 2020 19
Fair Legal Process – access to a lawyer (Art 6(1) + Art 6(3)(c))
• A’s rights under Art 6(1) and Art 6(3)(c) are engaged as he is not allowed
to speak to his solicitor within the first X hours of his detention.
• Murray v UK makes clear that Art 6(1) and 6(3)(c) apply to the
preliminary investigation conducted by the police before the suspect is
charged.
• In both Murray and Magee v UK, access to a solicitor was denied for 48
hours.
• In Murray, M was thus unable to know the consequences of refusing to
answer questions during police interviews, i.e. adverse inferences in court
• In Magee, the delay was designed to sap the will of the accused and induce
a confession.
• Brennan v UK – presence of police officer during consultation with lawyer
= contrary to Art 6(3)(c), as no ‘good cause’ for this
• APPLY.
• The right to see a solicitor may be restricted for ‘good cause’, not
including that the solicitor may advise the client not to answer, for up to
36 hours where authorised by a superintendent, under s 58(4) PACE.
o Good cause is likely to arise in terror-related arrests, where there
is a risk that solicitors could be complicit in transferring
information.
• Criminal Justice and Public Order Act 1994 – no adverse inferences may
be drawn where silence of suspect who has not been allowed the
opportunity to consult a solicitor (as advocated by ECtHR in Murray)
© Liam Porritt 2020 20
Art 6(2) – the right to silence & pressure to give evidence
• Give facts
• Therefore, his Art 6(1) and 6(2) right to remain silent under the
presumption of innocence are engaged.
• This includes the right not to incriminate oneself (Funke v France).
• Criminal Justice and Public Order Act 1994, ss 34-37 – permits drawing
adverse inferences when accused fails to mention a fact or material piece
of evidence which he later relies upon in his defence, unless there is no
access to a solicitor
• Murray: Conviction should not be based solely or mainly on D’s silence,
but can be taken into account when other strong evidence requiring
explanation
• Condron v UK: Judge should direct jury only to take into account silence
where only reasonable cause of silence is having no answer to the case
put to them that would stand up to cross examination, and not where
there is another explanation
o Heroine addicts in withdrawal advised by lawyer not to answer
questions as not fit for interview
Use of evidence obtained under legal compulsion
Saunders v UK (1997)
• In Saunders v UK, compulsion to answer questions through fear of
punishment for not answering was deemed to be contrary to Art 6(2), and
were thus deemed inadmissible at trial.
o Saunders investigated for inflating share prices
o Compelled to answer questions, as refusal punishable in same manner as a
contempt of court (s 426 Companies Act 1985)
• ECtHR: Prosecution in criminal case must prove case without resort to
evidence obtained through methods of coercion or oppression in
defiance of the will of the accused
• Evidence may not be admitted at trial when obtained by means of
coercion, oppression or legal compulsion.
© Liam Porritt 2020 21
Exclusion of evidence under statute
R v A (Complainant’s Sexual History) (No 2) [2001]
• S 41(3)(c) Youth Justice and Criminal Evidence Act 1999 impeded D’s
right to fair trial under Art 6(1) ~ almost blanket exclusion of evidence as
to relationship between V and D = disproportionate
• Lord Steyn read in an implied condition that evidence required to ensure
a fair trial should not be inadmissible (s 3(1) HRA 1998)
Al-Khawaja and Tahery v UK (2009) – Hearsay
• Art 6(3)(d) – right to examine witnesses against and call witnesses for
• Chapter 2 part 11 Criminal Justice Act 2003 – permits a statement not
made in oral evidence at trial to be admitted where person who made
statement:
o Dead
o Fears giving oral evidence
• Both these cases arose in this joint case ~ contrary to Art 6(1) + 6(3)(d)
where decision made solely or decisively on hearsay statements made
by witnesses who could not be cross-examined, unless very strong
procedural safeguards to ensure no Art 6 breach
• R v Horncastle – SC refused to follow ECtHR in Al-Khawaja, ruling that
there are sufficient safeguards in CJA 2003
o This was accepted by ECtHR in Horncastle v UK (2014)
© Liam Porritt 2020 22
Extra-territorial application of Art 6
• No general obligation to impose standards under Art 6 on other states,
Art 6 may prohibit extradition/deportation where risk that person will
suffer a flagrant denial of fair trial (Soering v UK)
• Othman v UK: deportation of Jordanian man would be contrary to Art 6 as
high probability evidence obtained through torture would be used in
Jordan = risk of flagrant denial of justice
o Led to Mutual Legal Assistance Treaty 2013 – Jordan and Britain
agreed not to use evidence secured by torture
Closed evidence procedures
• Permitted under:
o Special Immigration Appeals Commission Act 1997 = Immigration + national
security
o Anti-Terrorism, Crime and Security Act 2001 ~ used in Belmarsh cases
o Prevention of Terrorism Act 2005 = control orders
o Justice and Security Act 2013 = civil proceedings where disclosure damaging to
national security
• Closed evidence procedure:
o Evidence not disclosed to suspect where not in public interest to disclose
o Exclusion of suspect + legal representative from ‘closed’ part of legal
proceedings
§ Interests protected by ‘special advocate’ who has been security vetted +
is not responsible to person he is representing
• Re MB [2007] – challenge of PTA 2005 which allows for review of control orders by
courts
o Control order effects person’s civil rights and obligations, so Art 6 engaged
o No breach of Art 6(1) due to ‘special advocate’
• A v UK (2009) – Belmarsh cases: sufficient information must be given to allow D to ‘give
effective instructions’ to the Special Advocate
• Secretary of State for the Home Department v AF, AM and AN – departure from Re MB =
not possible (consistently with Art 6) to tell suspects of allegations in general terms,
without details
o Must be ‘core irreducible minimum’ of procedural fairness to allow for effective
instructions by detainee

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