Human Rights and Orders for Lifelong Restriction

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Human Rights and Orders for Lifelong Restriction

• Professor Jim McManus
• Fiona Killen
• Sinead Riach

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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)

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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)

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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

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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)

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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).

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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.

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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

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Nature of Convention Rights

• Convention Rights can be divided into three
  categories
• Absolute Rights
• Limited Rights
• Qualified rights

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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)

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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

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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.

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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

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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.

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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)

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Article 3 Prohibition of Torture
No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.
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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
• 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.

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Article 5 (continued)

• 2. 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.
• 5 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.

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Article 6 Right to a fair trial

• 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.

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Article 6 (continued)

• Everyone charged with a criminal offence has the
  following minimum rights
• 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.

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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.

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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.

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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

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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

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Article 3Inhuman 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)

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Article 3Inhuman 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

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Article 3Inhuman 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

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Article 3Inhuman 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

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Article 5Right 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

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Article 5Right 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)

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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

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Article 12Right 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

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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

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