Transcript The European Convention in Human Rights in the Northern

The European Convention on Human
Rights in the Northern Ireland Courts
Karen Quinlivan
“In law context is everything”
Lord Steyn, R v Secretary of State (ex parte
Daly [2001] 3 All ER 433 (28)
“The House of Lords and
the Northern Ireland Conflict”
Prof. Stephen Livingston (1994) 57 MLR 333
“This article examines the jurisprudence of the House
of Lords in respect of Northern Ireland and compares it
with that of other supreme courts in times of
emergency. It endorses the views of those who find
the record an undistinguished one. The decisions show
a consistent failure to recognise, let alone fully
consider, the human rights implications and are
frequently unsatisfactory even as regards their
technical aspects of reasoning and explanation.”
European Committee for the
Prevention of Torture
“Even in the absence of overt acts of ill-treatment, there is no
doubt that a stay in a holding centre may be – and is perhaps
designed to be – a most disagreeable experience. The
material conditions of detention are poor (especially at
Castlereagh) and important qualifications are, or at least can
be, placed upon certain fundamental rights of persons
detained by the police . . .. To this must be added the
intensive and potentially prolonged character of the
interrogation process. The cumulative effect of these factors is
to place persons detained at the holding centres under a
considerable degree of psychological pressure. The CPT must
state, in this connection, that to impose upon a detainee such
a degree of pressure as to break his will would amount, in its
opinion,
to
inhuman
treatment.”
• Magee v United Kingdom [2001] 31 EHRR 35
“The austerity of the conditions of his detention and his
exclusion from outside contact were intended to be
psychologically coercive and conducive to breaking down
any resolve he may have manifested at the beginning of
his detention to remain silent.” [43]
• R v Magee [2001] 1 NI 217
• In re Magee [2007] NICA 34
“the fact that the regime in Castlereagh was oppressive
was known to all. It was designed to be oppressive in
order to deal effectively with the investigation of terror
suspects.” [33]
• Jordan v United Kingdom (2003) 37 EHRR 2
• McKerr v United Kingdom (2002) 34 EHRR 20
• Kelly & O’rs v United Kingdom [2001] ECHR
328
• Shanaghan v United Kingdom [2001] ECHR
330
Jordan v United Kingdom
McKerr v United Kingdom
• The police officers investigating the killing lacked the
requisite degree of independence from those implicated
• There was a lack of public scrutiny and information to the
victim’s family because of the failure of the DPP to give
reasons for the decision not to prosecute
• The persons who used lethal force were not compellable
witnesses
• The inquest proceedings did not allow a verdict or findings
which could play an effective role in securing a prosecution
• There was no legal aid for the next of kin at the Inquest and
no advance disclosure
• The Inquest proceedings did not commence promptly and
were not pursued with reasonable expedition
In re McKerr’s Application
[2004] 1 WLR 807
“The duty to investigate is, in short,
necessarily linked to the death itself and
cannot arise under domestic law save in
respect of a death occurring at a time when
Article 2 rights were enforceable under
domestic law, i.e. on and after 2 October
2000.” Lord Browne [91]
In re Jordan’s Application
[2004] NICA 29
“By one means or another the jury should
meet the procedural obligation under article 2
and be permitted to express their conclusions
on the central facts explored before them.”
Girvan J [25]
Jordan v Lord Chancellor & Ano’r
[2007] 2 WLR 754
“a coroner's verdict in Northern Ireland can
make explicit factual findings pointing towards
a conclusion that criminal or civil
responsibility exists, although such a
conclusion cannot expressly be stated, even in
terms which do not identify anyone who
might have responsibility.” Lord Mance [59]
R v Secretary of State, ex parte Simms [2000] 2
AC 115
“Parliamentary sovereignty means that Parliament can, if it chooses,
legislate contrary to fundamental principles of human rights. The Human
Rights Act 1998 will not detract from this power. The constraints upon its
exercise by Parliament are ultimately political, not legal. But the principle
of legality means that Parliament must squarely confront what it is doing
and accept the political cost. Fundamental rights cannot be overridden by
general or ambiguous words. This is because there is too great a risk that
the full implications of their unqualified meaning may have passed
unnoticed in the democratic process. In the absence of express language
or necessary implication to the contrary, the courts therefore presume
that even the most general words were intended to be subject to the basic
rights of the individual. In this way the courts of the United Kingdom,
though acknowledging the sovereignty of Parliament, apply principles of
constitutionality little different from those which exist in countries where
the power of the legislature is expressly limited by a constitutional
document.” Lord Hoffman (131E)
In re C, A, W, M and McE
[2007] NIQB 101
“[The Regulation of Investigatory Powers Act] (RIPA) 2000 is framed
in extremely wide terms to apparently permit surveillance (and
hence intrusion) into all manners of private and confidential
communications. If the apparently wide and sweeping provisions of
RIPA were to apply to communications between a lawyer and his
client in the course of a private consultation under [the Terrorism
Act or the Police and Criminal Evidence (NI) Order] this would
represent a significant interference with the strictness of the rule
relating to legal professional privilege and the statutory right to
privacy. Bearing in mind the fundamental nature of the right to such
privacy it would require clear and explicit language to qualify what
Lord Hoffman described as a fundamental human right. The wide
and general words of RIPA would have conferred a power on the
authorising officers under the Act to undermine that fundamental
right in the absence of a clear enunciation of principle to that effect
by the legislature.” Girvan LJ [26]
In re E’s Application
[2004] NIQB 35
“The so called protest directed towards the
young children of Holy Cross school for girls is
one of the most shameful and disgraceful
episodes in the recent history of Northern
Ireland. The sheer weight of evidence about
those terrible events permits no conclusion
other than that many of those involved in the
protest had as their purpose the terrorising of
these innocent children and their parents.”
Kerr LCJ [63]
“In a case such as this, there is an understandable
inclination to view the matter of policing in
straightforward terms. Innocent children and their
equally innocent parents were being prevented from
making their way peaceably to school. They were
entitled to do so without having to endure the
brickbats and intimidation of others – especially since
these so-called protesters avowedly impeded their
way for reasons that had nothing to do with the
schoolchildren and their parents. The immediate
reaction of right thinking people is that those who
intimidated, threatened and attacked those children
and parents, who blocked their way and frightened
them were committing criminal offences; they should
have been prevented from doing so; they should have
been arrested and prosecuted.” [45]
“Sadly, policing options and decisions do not readily permit
such uncomplicated solutions, particularly in such a uniquely
fraught situation. Those who had to decide how to deal with
this protest were obliged to have regard to the effect that
their decisions might have in the wider community. It is not
difficult to understand that an aggressive, uncompromising
approach to the protest might have been the catalyst for
widespread unrest elsewhere. It is precisely because the
Police Service is better equipped to appreciate and evaluate
the dangers of such secondary protests and disturbances
that an area of discretionary judgment must be allowed
them, particularly in the realm of operational decisions.
While the sense of grievance of the parents is perfectly
reasonable and the perplexity of those who could not
understand why the police did not adopt more forceful
tactics is unsurprising, I cannot accept that it has been
established that the measures taken by the police were
unreasonable. I have concluded that no breach of article 3
has been demonstrated, therefore.” [46]