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Human Rights and Orders for Lifelong Restriction


Human Rights and Orders for Lifelong Restriction Professor Jim McManus Fiona Killen Sinead Riach Article 12: right to marry Men and women of marriageable age ... – PowerPoint PPT presentation

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Title: Human Rights and Orders for Lifelong Restriction

(No Transcript)
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)
  • 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
  • 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
  • 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
  • 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
  • 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
  • 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
  • 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
  • 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
  • A living instrument Convention terms to be
    interpreted in a dynamic way, reflecting changes
    in society, technology, etc no binding

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
  • 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

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
  • 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

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
  • Everyone charged with a criminal offence shall be
    presumed innocent until proved guilty according
    to law.

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
  • 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.

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 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)

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

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
  • Justification combination of punishment and
    public risk

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
  • Mandatory Sentences gravity of offence
    justifies indeterminate sentence

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

Article 5Right to Liberty
  • Mandatory Life Sentences right to review
  • Stafford v UK 2002
  • Prior to Stafford, no right to review under
  • 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
  • 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

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
  • Regina (Mellor) v Secretary of State for Home
  • Artificial insemination only in exceptional

  • 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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