human rights and civil liberties in the uk

Human Rights and Civil Liberties in the UK Revision

Exam revision – 1SLC651

European Convention on Human Rights

Article 2-18

Absolute Rights

•Right to Life

Article 2

•Prohibition of Torture

Article 3

•Prohibition of Slavery and Forced Labour

Article 4

•Right to Liberty and Security

Article 5

•Right to a Fair Trial

Article 6

•No Punishment without Law

Article 7

Qualified Rights•Ri

ght to Respect for Private and Family Life

Article 8

•Freedom of Thought, Conscience and religion

Article 9

•Freedom of Expression

Article 10

•Freedom of Assembly and Association

Article 11

Other Rights

•Right to Marry

Article 12•R

ight to an Effective Remedy

Article 13

•Prohibition of Discrimination

Article 14

•Derogation in Time of Emergency

Article 15

•Restrictions on Political Activity of Aliens

Article 16

•Prohibition of Abuse of Rights

Article 17

•Limitation on Use of Restrictions on Rights

Article 18

Human Rights Act 1998

Recap

History

1941 Atlantic Charter Post-war blue print1. No key territorial gains2. All people have the right to self determination3. Freedom from want and/or fear

1948 – Universal Declaration on Human Rights (UDHR) 1950 – European Convention on Human Rights (ECHR)

British led document (Sir Maxwell Fife 1966 – access to redress 1997 – Rights Brought Home (New Labour White Paper)

Rationale was about time and cost of going to Court of Justice 1998 – Human Rights Act (HRA)

Human Rights Act 1998 Applies to:

Public bodies Central government Local government Public service providers Agencies of public bodies

Does NOT apply to Parliament

Anti-terrorism and national security are contested areas

Habeas corpus = article 6

Internment reintroduced

“Victim test” – section 7, article 34 Have to be a victim or

potential victim Exhausted all other

available proceedings domestically

Apply no more than 6 months after matter concluded in domestic courts

Benefits (principally):

1. Ensures consistent legal interpretation2. Obliges public authorities to comply

Refers to all public bodies and their agents Legal and political debate given definition

3. Delay and cost reduced4. Symbolically – cultural shift5. Better dialogue between UK judiciary and

European Court of Human Rights Mutual respect

Case LawTerrorism and national security

• Ireland v UK 1980• Internment – articles 3 and 6

Criminal law – procedure and sentencing• Attorney General Reference 2004

• Delay – article 6• R v Loosley 2002

• Entrapment• Bulger and Criminal Justice Act 2003

• Crime and Disorder Act 1998• Abolished doli incapax

Immigration and asylum• Afghan hijack affair

• torture• Soering 1989

• Death penalty

Family, gender and child law• Res

Mental health laws

Travellers rights and free movement

More detailed look at some articles

Freedom of expression – article 10

National security

Privacy – article 8

Article 10 – Freedom of Expression

Article 10 is a qualified right 1-7 absolute rights 8-11 subject to exceptions

Provided in common law and ECHR, and then the HRA 1998

Lord Steyn – “primary right” in democracy Relates to

National Security Privacy

Statute and Case Law

Statute Cases

Contempt of Court Act 1981

Official Secrets Act 1989 Data Protection Act

1998 Human Rights Act 1998 Freedom of Information

Act 2000 Racial and Religious

Hatred Act 2006

R v. Advertising Standards Authority Ltd, ex parte Vernons Organisation Ltd. 1992

Silverton v Gravett 2001 Wagstaffe 2001 A v. B plc (Flitcroft v. MGN Ltd)

2002 R v. Perrin 2002 R v. Shayler 2002 Hammond v. DPP 2004 British American Tobacco 2004 Attorney General v. Scotcher 2005 CTB v. News Group Newspapers

2011

Key points

National security vs. freedom of expression Freedom of the press/ social media

Public interest Public disorder, potential for crime Tolerance of others

Article 17 and 18 ECHR Problematic legislation

Vague, broad, interpretation

National Security Relates to (not exclusive):

Article 10 – freedom of expression Article 8 – privacy Article 5 – liberty and security

MI5, MI6, GCHQ – security agencies Work with criminal intelligence agencies (special

branch) Funded by War Office but part of Foreign

Office National security main reason for withholding

information


Statute Case

Official Secrets Act 1911, 1989

Public Records Act 1958

Data Protection Act 1984, 1998

Intelligence Services Act 1994

Freedom of Information Act 2000

R v. Ponting 1985 The Observer and

Guardian v. UK 1990 (Spycatcher 1986)

R v. Shayler 2002 Katharine Gun 2003 Attorney General v.

Scotcher 2005

Article 8 and Privacy No comprehensive legislation in UK

No action for breaches Glidewell Report 1991 called for statute ECHR and HRA 1998 allow for privacy

Qualified right – states can interfere with this right Open to wide interpretation

Law of confidence developed from commercial and corporate law No comprehensive law, statute provides some measure of

protection Relates to:

Article 10 – freedom of expression National Security Prisoner’s Rights


Statute Case

Consumer Credit Act 1974 Rehabilitation of Offenders Act

1974 Data Protection Act 1984 Interception of

Telecommunications Act 1985 Security Service Act 1989 Broadcasting Act 1990, 1996 Police Act 1997 Protection Against Harassment

Act 1997, 2012 Human Rights Act 1998 Regulation of Investigatory

Powers Act (RIPA) 2000

Bernstein of Leigh v. Skyviews and General Ltd. 1978

Malone v. Met Police 1979 Kaye v. Robertson and Sport

Newspapers Ltd 1991 Douglas v. Hello! Ltd 2001 A v. B plc (Flitcroft v. MGN Ltd) 2002 Wainwright v. Home Office 2003 HRH Prince of Wales v. Associated

Newspapers Ltd. 2006 Mosley v. News Group Newspapers

Ltd. (No. 3) 2008 AMP v. Persons Unknown 2011 CTB v. News Group Newspapers Ltd

and Anor 2011

Other Points All 3 things need to be proven prior to court

Information is confidential There is a duty to keep information confidential The proposed use of information is incompatible

with this duty Lots of these cases are about celebrities and

the media Naomi Campbell case – photographed coming out

of rehab Duchess of Cambridge case – photographed

topless on holiday, and published in various European countries

Issues about the internet – social media e.g. Giggs case

Case Law Summaries

Chronological Order

Bernstein of Leigh v. Skyviews and General Ltd. 1978

Article 8 - Privacy

Aerial photograph taken of house Question about airspace ownership No trespass – did not invade privacy Adjoining owners have no right to obstruct

neighbour’s land Plane did not effect the use of the land

R v. Ponting 1985

National Security

Civil servant leaked confidential documents to opposition MP To raise issue in Parliament – Parliamentary

privilege Concerned lying about the sinking of a ship

during Falklands Charged under Official Secrets Act 1989 Found not guilty by jury

Judge clear there was an offence committed

The Observer and Guardian v. UK 1990Spycatcher case 1986


Memoirs of former secret service member living in Australia

Parliament sought injunction Published elsewhere

Lord Goth: In a free society there is a continuous public interest

that the workings of government should be scrutinised Violation of article 10

No violation of article 14 (discrimination) and not necessary to look at article 13

Compensation awarded for costs and expenses

Kaye v. Robertson and Sport Newspapers Ltd. 1991

Article 8 – Privacy Article 10 – Freedom of Expression Journalists gained access to a private

hospital room where celebrity actor was recovering Conducted photographs and interview Threatened to publish interview

Actor sought an injunction Any article implying consent to the interview

would amount to falsehood No actionable right of privacy in English law

Douglas v. Hello! 2001

Article 8 – PrivacyArticle 10 – Freedom of Expression Michael Douglas and Catherine Zeta-Jones’

wedding photographs in Hello! but had agreement with OK!

Interim injunction awarded, Hello! appealed Organised publicity surrounding wedding

tipped balance in favour of allowing publication Damages adequate Injunction discharged

Wagstaffe Case 2001


Shipman inquiry should be a public not private as there is a right to the information found Victims families not consulted – 70 approved Private so it would be quicker and more likely to have

witnesses Press sought judicial review

National Health Act 1977 did not apply because it involved agencies outside the NHS

Public interest Application for judicial review allowed

Allowed to be held in public – important right for public to know

R v. Perrin 2002


Distribution of content via the internet Pornographic images

Servers not in the UK “Downloading” in the UK is “publication”

Irrelevant where it was uploaded Offence had been committed

A v. B plc (Flitcroft v. MGN Ltd) 2002

Article 8 – PrivacyArticle 10 – Freedom of Expression Married footballer sought injunction from the

media disclosing information of sexual activities

Freedom of press vs. Privacy Even when there is no public interest in

information Defendants’ appeal allowed

The more stable the relationship the more significance given to it Marriage permanent vs. affairs

R v. Shayler 2002

Article 10 – Freedom of ExpressionNational Security

Former member of secret services disclosed information and charged under the Official Secrets Act 1989

Question whether he could have public interest defence, if not use article 10, if not then use a declaration of incompatibility

Should have used appropriate channels Article 10 not absolute Sufficient safeguards available

R v. Secretary of State 2004British Tobacco


Tobacco Advertising and Promotion (Point of Sale) Regulations 2004 allowed Aimed at deterring pubic from smoking Not a disproportionate restriction of commercial free

speech 5 companies involved

Acknowledged health risk and preventing influencing children

Unimpressed with deterring adults as smoking is legal Application refused due to health and social policy

Attorney General v. Scotcher 2005

Article 10 – Freedom of ExpressionNational Security

Juror wrote to mother of convicted disclosing jury’s deliberations

Intention to expose injustice Not a defence of the Contempt of Court Act 1981

Could have written to judge, lawyer, Court of Appeal, etc.

Guilty verdict Only because it was written to the wrong authority Little can be done to expose injustice in this

process

Mosley v. News Group Newspapers Ltd (No 3) 2008

Article 8 – PrivacyArticle 10 – Freedom of Expression

President of FIA filmed engaging in sado-masochistic activities in private flat Claimed there were Nazi elements/role play with

published video on NGN website Interim injunction denied as access to

footage was already widely accessible Mosley award £60,000 damages

Nazi element could not be proven If there had there would have been public interest

R v. Perrin 2002


Distribution of content via the internet Pornographic images

Servers not in the UK “Downloading” in the UK is “publication”

Irrelevant where it was uploaded Offence had been committed

Wainwright v. Home Office 2003

Article 8 – Privacy

Mother and son stripped searched on prison visit for drugs Breach of Prison Rules, humiliated and distressed Son mentally impaired and developed PTSD

Trespass against both persons had been committed. Son’s “trespass” amounted to battery Awarded £2,600 and £4,500 respectively

Appealed trespass charges No common law tort of invasion of privacy Needed legislation not common law Used ECHR and HRA 1998 to fill gaps

Katharine Gun Case 2003

Article 10 – Freedom of Expression National Security

GCHQ worker Leaked emails about spying intimidation

surge prior to invasion of Iraq UK-US

Deemed in national interest Not prosecuted, case dropped Lots of public/internet support

HRH The Prince of Wales v. Associated Newspapers Ltd 2006

Article 8 – PrivacyArticle 10 – Freedom of Expression Extracts of a journal by Charles written on

his official visit to Hong Kong in 1997 were published Breach of confidence and copyright

Public interest defence by newspapers Court held that publication would be

restrained ‘an arguable case that they contain private

confidential information of a sensitive nature’

CTB v. News Group Newspapers Ltd 2011Ryan Giggs Case

Article 8 – PrivacyArticle 10 – Freedom of Expression Article published in The Sun about

footballer’s affair – defendant not named but right expired next day

Giggs wanted injunction Appeared Giggs was blackmailed with

information Giggs would get injunction but information

already in public (Twitter etc.) Nothing left to protect

AMP v. Persons Unknown 2011

Article 8 – Privacy

Phone stolen at university contained private images of family and friends, and sexual

Images uploaded to web, images removed by host but used by ‘persons unknown’ to blackmail claimant Images uploaded to ‘BitTorrent’ with claimant’s

name attached ‘Persons unknown’ as it is lengthy to find IP

addresses and names Reasonable expectation of privacy for images

Past papers

2012

1. ‘The Human Rights Act 1998 and the Police and Criminal Evidence Act 1984 are wholly ineffective as a means of preventing miscarriages of justice.’ Do you agree with this statement? Justify your answer

2. ‘Enjoyment of civil liberties no longer stops at the prison gates.’ Explain and assess this statement.

3. To what degree is a balance struck between the interests of a state in withholding information and the interest of the individual in acquiring government information?

4. Is there a proper balance between freedom of the press and privacy?

5. Why despite recent changes to the Sex Discrimination Act 1975 and Race Relations Act 1976 do applicants still face difficulties in bringing a case?

20111. “One of the hallmarks of a free society is the ability of its citizens to go about

their business without the need to explain to anyone in authority what they are doing.” (Stone, 2004). Critically evaluate this statement in the context of the use of police powers in the UK

2. After reviewing the current legislation on freedom of expression, critically assess whether it manages to find a balance between important conflicting interests.

3. Critically examine the achievements and failures of the Commission for Racial Equality, and the Equal Opportunities Commission, in preventing discrimination and protecting civil liberties in the UK.

4. Do you agree with the argument that, prior to the Human Rights Act 1998, English law did not recognise a right to privacy? If so, on what basis?

5. Critically assess the role which the European Convention on Human Rights has played in strengthening and defining the rights of prisoners.

6. ‘The general attitude towards official government information in the UK has traditionally been one of secrecy and denial.’ Critically assess this claim.

20101. The introduction of the Human Rights Act 1998 was superfluous, as citizens of the UK have

historically always enjoyed guaranteed civil liberties. Discuss.

2. The civil rights of prisoners are left at the prison gates. Critically evaluate this statement.

3. The widespread use of CCTV in the UK is essential to the government’s fight against crime and poses no threat whatsoever to individual privacy. Do you agree? Give reasons for your answer.

4. The serious miscarriage of justice cases during the 1970s have led to increased scrutiny of police powers of detention and questioning along with greater safeguards for suspects. Discuss.

5. Critically examine the success of the Human Rights Act 1998 as our human rights guarantee.

6. Do you agree that the longstanding tradition of official government secrecy in the UK is finally coming to an en? Give reasons for your answer.

7. The strict regulatory system for broadcasting in the UK may be at odds with Article 10 of the European Convention on Human Rights (Freedom of Expression). Discuss.

8. “English law has intervened to control unjustifiable discrimination in only a limited way. It only applies to certain types of discrimination, and only in relation to discrimination for certain purposes” (Stone, 2009). Critically evaluate this statement.

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