Transcript Document

Human Rights and
Orders for Lifelong Restriction
Professor Jim McManus
Fiona Killen
Sinead Riach
Sources of human rights
obligations in Scots law
• European Convention on Human Rights
(“ECHR”) (1950)
• The Scotland Act 1998
• The Human Rights Act 1998 (“HRA”)
European Convention on Human Rights
• European Convention for the Protection of Human Rights and
Fundamental Freedoms (‘the Convention’)
• A treaty of the Council of Europe
• ECHR opened for signature on 4 November 1950
• Treaty ratified by UK in March 1951 and entered into force on 3
September 1953
• ECHR intended to provide a common standard across
European nations in respect of the protection of fundamental
rights and freedoms
• ECHR comprises Articles and Protocols (not all ratified by UK)
The Scotland Act 1998
• Section 29 – to be competent, Acts of the Scottish
Parliament must comply with Convention Rights
• Section 57 – “a member of the Scottish Executive
has no power to make any subordinate legislation, or
to do any other act, so far as the legislation or act is
incompatible with any of the convention rights”
• Provisions came into force:
– For Scottish Executive: 6 May 1999
– For Crown Office: 20 May 1999
– For Scottish Parliament: 1 July 1999
The Human Rights Act 1998
• Came into force on 2 October 2000
• Requires all public authorities in the UK to comply
with Convention - Human Rights Act 1998: section
6(1) – “It is unlawful for a public authority to act in a
way which is incompatible with a Convention right”
• S 6(3) – a public authority includes:
– A court or tribunal; and
– Any ‘person’ whose functions are of a public nature
• But does not include either House of the UK
Parliament (except House of Lords sitting in its
judicial capacity)
Definition of public authorities
• Not defined in HRA, but Guidance Note from Home
Office Human Rights Task Force (‘A New Era of
Rights and Responsibilities: Core Guidance for Public
Authorities’) included:
– Ministers, government departments and agencies,
local authorities, health authorities and trusts,
Armed Forces, police,
– courts and tribunals,
– any person or organisation carrying out functions
of a public nature (but only to the extent that their
functions are of a public nature).
Characteristics of public authorities
• Some key characteristics (Home Office Guidance):
– operates in public domain as integral part of a statutory system
which performs public law duties;
– performs duty of public significance;
– individual rights/obligations may be affected by performance of the
duty or may be deprived of legitimate expectation in performance of
the duty;
– non-statutory body, established under authority of central/local
government;
– supported by statutory powers and penalties;
– performs functions that central/local government would otherwise
perform;
– under a duty to act judicially in exercising what amount to public
powers.
ECHR incorporation
• Enables individuals to enforce rights through domestic
courts and defines ‘Convention Rights’
• Section 2: UK courts and tribunals under an obligation to
take into account Convention law and principles of
interpretation when determining a Convention rights issue
• Section 3: All legislation (where possible) to be read and
given effect to in a way which is compatible with
Convention rights
• If incompatible, primary and secondary legislation dealt
with differently: declaration of incompatibility v quashing
legislation
• Section 21 defines primary and secondary legislation for
the purposes of the Human Rights Act 1998
Nature of Convention Rights
• Convention Rights can be divided into three
categories:
– Absolute Rights
– Limited Rights
– Qualified rights
Absolute Rights
• Absolute rights are those Convention Rights
which do not contain limiting provisions on
the exercise of that right, although they are
effectively delimited by the court in the
process of judicial interpretation, e.g. the
rights contained in Article 3 (protection from
torture, inhuman or degrading treatment and
punishment)
Limited rights
• Limited rights are Convention Rights which
contain in their terms limitations, but only to
the extent of the circumstances explicitly
delineated in the Convention, e.g. Article 5
(right to liberty) falls into this category
Qualified rights
• Qualified rights are Convention Rights whose
application is qualified in line with certain criteria, e.g.
where it is argued that a qualification is required in
order to meet an aim set out in the Convention, e.g.
public safety. Article 8 (right to private and family life)
is a qualified right.
• Each case judged on its merits, but the overall scope
of the right not narrowed by a qualification in a
particular case. The qualification merely applies in
respect of the individual circumstances of that case.
Criteria for qualifications to be
applied
• Have a basis in law
• Be necessary in a democratic society, I.e.
must fulfil a pressing social need, pursue a
legitimate aim and be proportionate to that
aim
• Be related to the legitimate aim set out in the
relevant Convention Article
Principles of ECHR interpretation
• What principles do courts apply in interpreting
Convention rights?
– Effectiveness principle: rights should be practical and
effective, e.g. implied rights, positive obligations on
contracting states;
– ‘Autonomous concepts’ – autonomous/independent
interpretation of Convention concepts required to
achieve uniformity of application of Convention rights;
– A ‘living instrument’ – Convention terms to be
interpreted in a dynamic way, reflecting changes in
society, technology, etc; no binding precedents.
Adjudication on Convention Rights
• In adjudicating on Convention Rights, the
courts apply the following doctrines:
–
–
–
–
–
–
The ‘victim’ test (Article 34)
Margin of appreciation
Necessity
Proportionality
Subsidiarity
No ‘fourth instance’(‘quatrième instance’)
Article 3: Prohibition of Torture
No one shall be subjected to torture or to
inhuman or degrading treatment or
punishment.
Article 5: Right to liberty and
security
1.
Everyone has the right to liberty and security of person. No one shall be
deprived of his liberty save in the following cases and in accordance with a
procedure prescribed by law:
a.
b.
c.
d.
e.
f.
the lawful detention of a person after conviction by a competent court;
the lawful arrest or detention of a person for non-compliance with the lawful order
of a court or in order to secure the fulfilment of any obligation prescribed by law;
the lawful arrest or detention of a person effected for the purpose of bringing him
before the competent legal authority on reasonable suspicion of having
committed an offence or when it is reasonably considered necessary to prevent
his committing an offence or fleeing after having done so;
the detention of a minor by lawful order for the purpose of educational supervision
or his lawful detention for the purpose of bringing him before the competent legal
authority;
the lawful detention of persons for the prevention of the spreading of infectious
diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
the lawful arrest or detention of a person to prevent his effecting an unauthorised
entry into the country or of a person against whom action is being taken with a
view to deportation or extradition.
Article 5 (continued)
2.
3.
4.
5
Everyone who is arrested shall be informed promptly, in a language
which he understands, of the reasons for his arrest and of any charge
against him.
Everyone arrested or detained in accordance with the provisions of
paragraph 1.c of this article shall be brought promptly before a judge
or other officer authorised by law to exercise judicial power and shall
be entitled to trial within a reasonable time or to release pending trial.
Release may be conditioned by guarantees to appear for trial.
Everyone who is deprived of his liberty by arrest or detention shall be
entitled to take proceedings by which the lawfulness of his detention
shall be decided speedily by a court and his release ordered if the
detention is not lawful.
Everyone who has been the victim of arrest or detention in
contravention of the provisions of this article shall have an enforceable
right to compensation.
Article 6: Right to a fair trial
1.
2.
In the determination of his civil rights and obligations or of any
criminal charge against him, everyone is entitled to a fair and
public hearing within a reasonable time by an independent and
impartial tribunal established by law. Judgment shall be
pronounced publicly but the press and public may be excluded
from all or part of the trial in the interests of morals, public
order or national security in a democratic society, where the
interests of juveniles or the protection of the private life of the
parties so require, or to the extent strictly necessary in the
opinion of the court in special circumstances where publicity
would prejudice the interests of justice.
Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law.
Article 6 (continued)
3.
Everyone charged with a criminal offence has the following minimum
rights:
a.
to be informed promptly, in a language which he understands and in detail,
of the nature and cause of the accusation against him;
to have adequate time and facilities for the preparation of his defence;
to defend himself in person or through legal assistance of his own choosing
or, if he has not sufficient means to pay for legal assistance, to be given it
free when the interests of justice so require;
to examine or have examined witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him;
to have the free assistance of an interpreter if he cannot understand or
speak the language used in court.
b.
c.
d.
e.
Article 8: Right to respect for
private and family life
1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a
democratic society in the interests of national
security, public safety or the economic well-being of
the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the
protection of the rights and freedoms of others.
Article 12: right to marry
Men and women of marriageable age
have the right to marry and to found a
family, according to the national laws
governing the exercise of this right.
HRA – the future
• Negative media coverage
• Criminal justice arena– victims’ rights v
offenders’ rights
• Role of the Courts and tribunals as public
authorities – act in a manner compatible with
Convention Rights – influence on private as
well as public sphere
• Suggestions of reform or repeal
Issues Arising and
Case Law Analysis
•
•
•
•
•
OLRs in their infancy – no specific case law
Sentencing raises human rights issues
Articles 3, 5, 6, 8 and 12
Issues Arising
Case law analysis
Article 3
Inhuman + Degrading Treatment
• High threshold but frequently invoked
• Poor prison conditions can amount to breach:
• Solitary confinement not breach if justified
– Wardlaw v the UK
• Detention on death row could be breach
– Soering v the UK (death penalty/extradition)
Article 3
Inhuman + Degrading Treatment
• Sanitary facilities
– Peers v Greece (lack of privacy re facilities)
– Napier v the Scottish Ministers
• Physical and mental effect (eczema)
• Balance of proof
• Length of determinate sentence
– Outwith scope of ECHR unless conditions v. poor
– Right to parole not guaranteed by ECHR
Article 3
Inhuman + Degrading Treatment
• Indeterminate Discretionary Life Sentences
• Essentially a life sentence – lots of challenges
• 2 types of indeterminate + justifications differ:
– Mandatory life sentence (for murder)
• Justification –punishment
– Discretionary life sentence (where risk to public)
• Justification – combination of punishment and
public risk
Article 3
Inhuman + Degrading Treatment
• Indeterminate Life sentences not incompatible with
ECHR unless contrary to Article 3
• Discretionary Setences – Weeks v UK
–
–
–
–
Robbery of 35p with blank pistol
Discretionary life sentence
Previous history and mental conditions = high risk to public
Must be justified by risk or be proportionate to offence
• Mandatory Sentences – gravity of offence justifies
indeterminate sentence
Article 5
Right to Liberty
• Right to liberty and security – limited right
• Article 5(4) – vehicle for review of sentence
• Discretionary Life Sentence – right to review
(Weeks case)
– Grounds may change with passing of time
– Regular review only after determinate part served
Article 5
Right to Liberty
• Mandatory Life Sentences – right to review
– Stafford v UK 2002
– Prior to Stafford, no right to review under Art.5(4)
– Stafford – once punishment part satisfied, grounds
for continued detention must be same as for
discretionary – considerations of risk.
– If no risk, continued incarceration no longer
legitimate
– Post Stafford – right to review of continued
detention under Art. 5(4)
Right to a Private Life
Sentences interfere with private + family life
– Frequently invoked
– No right to choose place of detention
– Privacy of correspondence is protected
– Interference justified to prevent crime
– Stopping, delaying and opening mail can be a breach
but a level of control can be required
– Regina (Daley) v Secretary of State for Home Dept
Interference with legal correspondence is a breach
Article 12
Right to Marry and Found
Family
•
•
•
•
Severely curtailed by sentence
Preventing marriages – breach
Preventing conjugal visits – no breach
Elh and Pbh v the UK
– No right to conjugal visits. Justified by Art. 8(2) so no breach
of Art. 12. Right to artificial insemination. Art 9 and freedom
of religion. Not exempted from general rules of society
• Regina (Mellor) v Secretary of State for Home Dept
– Artificial insemination only in exceptional circumstances
Conclusion
• The Court is a ‘tribunal’ for purposes of Art 6
• The RMA Risk Assessor does not make a
determination of civil rights and obligations
• Sentences restricting liberty will always be subject to
challenge
• Prisoners can rely on ECHR in UK Courts
• Early days for the OLR
• Human rights is always evolving
• Positive for human rights to be considered at early
stage
1 Rutland Court
Edinburgh
EH3 8EY
Tel: +44 (0)131 270 7700
Fax: +44 (0)131 270 7788
DX ED3 Edinburgh 1
www.andersonstrathern.co.uk