THE HUMAN RIGHTS ACT THE HUMAN RIGHTS ACT AND THEAND THE

UK POLICE SERVICEUK POLICE SERVICE

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.

VICTIMS

• Victim of an unlawful act

• would be victim of an unlawful act

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)

BEST PRACTICE

IS MY ACTION• LAWFUL?• NECESSARY & JUSTIFIABLE?• PROPORTIONATE?• NON-DISCRIMINATORY?

• DO NOT FORGET - RECORD THE THOUGHT PROCESS