#19839 - Ocr Human Rights Law - OCR A-Level Law (with Human Rights Law)

Human Rights law overview

Topics:

• How to tackle the questions

• Types of rights

• Article 5: right to liberty and security

• Article 6: right to fair trial

• Article 8: right to respect for family and private life

• Article 10: freedom of expression

• Article 11: freedom of assembly and association

• Enforcement

How to tackle the questions

Article 5

Overview

No need to write in exam - just for your knowledge

Just put 1 introductory sentence summarising

Article 5 rules

Always write s5(1) - can summarise as 'arrest or detention for lawful reasons' and include 2 examples.

Write about s5(2) if relevant (arrested or legal access in fact pattern)

Write about s5(3) if relevant (period of detention (inc bail) in fact pattern)

Write about s5(4) if relevant (appeals in fact pattern)

Always write s5(5)

Apply to facts to work out if Article 5 is engaged, can refer to 5(1) situation that is relevant.

Definition of deprivation of liberty

Write about definition of deprivation of liberty.

Apply to facts to work out if there was an interference/breach.

TPIMs/Care/Kettling/Stop and search

Write about the law for the topics that are relevant.

Apply to facts to work out if the interference/breach was lawful.

If relevant/appropriate, discuss remedies (judicial review or use as defence).

Article 6

Overview

No need to write in exam - just for your knowledge

Just put 1 introductory sentence summarising

Article 6 rules

Always write s6(1)

Write about s6(2) if relevant

Write about s6(3) if relevant

Apply to facts to work out if Article 6 is engaged.

Definition of fair trial

Write about definition of fair trial.

Apply to facts to work out if there was an interference/breach.

Write about the law for the topics that are relevant.

Apply to facts to work out if the interference/breach was lawful.

If relevant/appropriate, discuss remedies (judicial review or use as defence).

Article 8

Overview

No need to write in exam - just for your knowledge

Just put 1 introductory sentence summarising

Article 8 rules

Always write main law.

Apply to facts to work out if Article 8 is engaged, refer to specific situation (points/examples of assembly or association).

Write how the situation can be interfered with.

Apply to facts to work out if there was an interference/breach.

Qualified right restrictions

Write the first test to work out if interference/breach was lawful: prescribed by law.

Write the law on the specific Article-related situations that are relevant.

Apply to facts to work out if the interference/breach was lawful.

Write the second test, include 3 examples.

Apply to facts the relevant example(s).

Write the third test.

Apply to facts.

Write the fourth test.

Apply to facts.

Write the fifth test.

Apply to facts.

If relevant/appropriate, discuss remedies (judicial review or use as defence).

Article 10

Overview

No need to write in exam - just for your knowledge

Just put 1 introductory sentence summarising

Article 10 rules

Always write main law.

Apply to facts to work out if Article 10 is engaged, refer to specific situation (points/examples of assembly or association).

Write how the situation can be interfered with.

Apply to facts to work out if there was an interference/breach.

Qualified right restrictions

Write the first test to work out if interference/breach was lawful: prescribed by law.

Write the law on the specific Article-related situations that are relevant.

Apply to facts to work out if the interference/breach was lawful.

Write the second test, include 3 examples.

Apply to facts the relevant example(s).

Write the third test.

Apply to facts.

Write the fourth test.

Apply to facts.

Write the fifth test.

Apply to facts.

If relevant/appropriate, discuss remedies (judicial review or use as defence).

Article 11

Overview

No need to write in exam - just for your knowledge

Just put 1 introductory sentence summarising

Article 11 rules

Always write s11(1) - include 2 points/examples for peaceful assembly and include 2 points/examples for association.

Apply to facts to work out if Article 11 is engaged, refer to specific situation (points/examples of assembly or association).

Write how the situation can be interfered with.

Apply to facts to work out if there was an interference/breach.

Qualified right restrictions

Write the first test to work out if interference/breach was lawful: prescribed by law.

Write the law on the specific Article-related situations that are relevant.

Apply to facts to work out if the interference/breach was lawful.

Write the second test, include 3 examples.

Apply to facts the relevant example(s).

Write the third test.

Apply to facts.

Write the fourth test.

Apply to facts.

Write the fifth test.

Apply to facts.

If relevant/appropriate, discuss remedies (judicial review or use as defence).

Types of rights

Absolute (no interference allowed).

Limited (limitations allowed in clearly defined and finite situations).

Qualified (state can restrict right if prescribed by law for a legitimate aim in a proportionate manner). Rules (Sunday Times v UK):

• Is the restriction prescribed by law? Qualification must be expressed and prescribed by law accessibly and precisely.

• Does it have a legitimate aim? Qualification must be for a legitimate aim:

  • National security/public safety (R v Shayler; H v Greece).

  • Disorder/crime prevention (Surek v Turkey).

  • Health/morals protection (Muller v Switzerland (sexual); Open Door and DWW v Ireland (abortion); R v Hicklin (obscenity); Larmela v Finland (drug promotion association)).

  • Rights/freedoms protection (Bedat v Switzerland); includes:

    • Confidential information prevention/disclosure (Guja v Moldova; Heinisch v Germany).

    • Judiciary authority and impartiality (Sunday Times v UK; Pinto Ciekho v Portugal (No 2)).

    • Exercising assembly/procession/association to express view (Countryside Alliance v AG).

• Is it necessary in a democratic society? Qualification must be necessary (pressing social need (Guardian v UK)) in a democratic (non-discriminatory) society.

• Is it proportionate? Relevant state action must be proportionate (R(Laporte) v CCG) (issue must be sufficiently important, action must be rationally connected to issue, no less intrusive measure could have been used (Yildirim v Turkey), and fair balance must be struck between individual rights/freedoms and society interests (Delfi v Estonia)).

• Is it within the margin of appreciation? Wide margin of appreciation for striking balance between rights/freedoms must be afforded to state.

Article 5: right to liberty and security

Overview

Limited right to liberty and security: state cannot deprive individual liberty/security unless they deprive:

1 In good faith, connected to specific purpose: lawfully arrest/detain; imprison convicted criminals; hospitalise mentally ill; detain for asylum/deportation; detained minors for education. This depends on context like restriction intensity and circumstances (example: no breach with restriction on movement; breach with physical confinement and significant restrictions).

2 Follow correct/non-arbitrary procedure: must be necessary (less severe measure considered first), length must be reasonable, reason(s) must be properly recorded, and must adhere to domestic law.

Article 5 rules

5(1) Cannot deprive liberty unless one of below occurs and it is done in a prescribed procedure (must be done by someone with authority) and is lawful (lawful in UK law; cannot be arbitrary (Shimovolos v Russia; Stafford v UK)):

• Detention after conviction.

• Arrest or detention to have someone obey the court.

• Arrest or detention for someone authority has reasonable suspicion committed a crime.

• Detention of minor for educational or legal supervision.

• Detention to prevent disease spreading, persons of unsound mind, alcoholics, vagrants.

• Arrest or detention for deportation or extradition.

5(2) Must inform anyone arrested promptly in language they understand with reasons for arrest (Christie v Leachinsky; Taylor v CC Thames Valley Police). Must offer access to legal support unless justifiable reason exists otherwise (R v Samuel).

5(3) Must bring detainee before a court promptly. Must be tried within reasonable time from when detainee is first remanded into custody (Brogan v UK). Detainee has right to bail unless custody is justified (when defendant may abscond; very serious crime; will commit another offence; interference with justice) (Bail Act 1976).

5(4) Detainee must have access to court proceedings to challenge detention (usually bail rejections or parole requests) in front of an impartial board and receive decision promptly (R v Secretary of State ex parte Noorkoiv).

5(5) Must be awarded compensation for breaches.

Definition of deprivation of liberty

• Objectively determined person is detained for a time period;

• Detainee has not consented to detention;

• State set reason for confinement.

Detention need not be due to physical barriers, just has some restrictions (Re D E).

TPIMs

Terrorism Prevention and Investigation Measures (TPIM) are used by the Government beyond the criminal justice system to control persons suspected of involvement in terrorism.

Cannot use police supervision within criminal system, as amounts to unlawful deprivation (Guzzardi v Italy).

Control conditions (maximum 2 years per order) must be proportionate (Secretary of State v JJ). Common examples:

• Electronic tagging.

• Curfew requirement (Secretary of State v E).

• Restrictions on internet use.

• Restrictions on travel.

Care

Usually no deprivation of liberty if person of sound mind is being cared for and subject to these restrictions.

If person has disabilities/vulnerabilities, determine whether...