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BEST PRACTICE
IS MY ACTION
• LAWFUL?
• NECESSARY & JUSTIFIABLE?
• PROPORTIONATE?
• NON-DISCRIMINATORY?
The European Conventionon Human Rights
• was drafted in 1950
• was signed by UK but not incorporated into UK domestic law
• 1966 UK individuals given right to take alleged breaches to the European Court
• received Royal Assent in November 1998
• came into force 2nd October 2000
The Human Rights Act 1998
The aim of the Human Rights Act
1998
• to incorporate the European Convention of Human Rights and Fundamental Freedoms into UK domestic law
The European Convention on Human Rights
• 20% of ECHR are from the UK
• 95% of all cases are inadmissible
• 75% of which are judged as ‘manifestly ill-founded’
Convention Rights
• Article 2 - right to life
• Article 3 - prohibition of torture
• Article 4 - prohibition of slavery and forced labour
• Article 5 - right to liberty and security
• Article 6 - right to a fair trial
• Article 7 - no punishment without law (no retrospective law)
Convention Rights
• Article 8 - right to respect for private and family life
• Article 9 - freedom of thought, conscience and religion
• Article 10 - freedom of expression
• Article 11 - freedom of assembly and association
Convention Rights
• Article 12 - right to marry
• Article 14 - prohibition of discrimination
• Article 16 - restrictions on political activity of aliens
• Article 17 - prohibition of the abuse of rights
• Article 18 - limitation on use of restrictions on rights
Categories of rights
• Articles 2, 3, 4, 5, 6 and 7– the state cannot interfere with these in the
public interest
• Articles 8, 9, 10, and 11– general public interest can be taken into
account allowing the state to interfere
Public Authorities
• Section 6 (1) and (2) of the Act– makes it unlawful for a ‘public authority’ to
act incompatibly with the Convention– allows a ‘public authority’ to act
incompatibly if domestic legislation cannot be interpreted compatibly
What is a Public Authority?
• a court or tribunal, and
• any person certain of whose functions are functions of a public nature (s 6)
DOCTRINES
• LAWFUL
• NECESSARY & JUSTIFIABLE
• PROPORTIONATE
• NON-DISCRIMINATORY
• EQUALITY OF ARMS
• MARGIN OF APPRECIATION
• POSITIVE OBLIGATION
LEGALITY
• identified and established
• accessible (written down and available) and
• formulated with sufficient clarity to be foreseeable in its consequences
The ‘law’ referred to is domestic
law which must be:
NECESSITY
• IS THE RESTRICTION ‘NECESSARY IN A DEMOCRATIC SOCIETY’?
• IS THE RESTRICTION LEGITIMATE?
PROPORTIONALITY
• FAIR BALANCE BETWEEN INDIVIDUAL RIGHTS & THE INTERESTS OF THE COMMUNITY.
• THE INDIVIDUAL RIGHTS PROPORTIONAL TO THE LEGITIMATE AIM PURSUED. (not a sledgehammer to crack a nut)
EQUALITY OF ARMS
• IN TRAIL PROCESS, DEF. MUST HAVE SAME INFORMATION & ACCESS TO INFORMATION AS THE POLICE/PROECUTION
• APPLIES TO BOTH CRIMINAL AND CIVIL CASES
MARGIN OF APPRECIATION
• the State is in a better position to decide domestic ‘necessity’ than an international court
POSITIVE OBLIGATIONS
• State cannot refrain from interfering with people’s Convention Rights.
• Duty to protect them.
HOW WILL VICTIMS BE ABLE TO USE THE CONVENTION
IN OUR COURTS?
• as a defence in criminal proceedings
• as a basis of an appeal
• to seek judicial review
• to bring civil proceedings for damages
Individuals who believe their rights have been infringed can rely on the Convention:
WHAT MIGHT HAPPEN IN COURT IF INFRINGEMENT IS FOUND TO BE UNJUSTIFIED?
• proceedings stayed for abuse of process
• evidence ruled inadmissible
• indictments and convictions quashed
• compensation awarded (where the court is able to do so)