Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Wrapped: Legal Systems > LS10: Protecting Rights > Flashcards

LS10: Protecting Rights Flashcards

1
Q

Are civil liberties and human rights the same thing?

A

No, related but different things.

Civil liberties approach was before HRA 1998, when common law was used to allow citizens to be free to do as they wished, subject to law limitations. They’re described as residual. (E.g. UK)

Human rights are duties placed upon the state to protect and safeguard particular freedoms for the individual (e.g. USA, France).

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

What is the principle of legality?

A

To do with statutory interpretation:

An Act of Parliament will be construed subjected to a presumption that Parliament does not intend to interfere with constitutional rights.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Did the HRA 1998 replace common law?

A

No, it did not remove the existing common law or prevent common law action.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Does the ECHR counts as international law for the UK?

A

Yes, the UK recognises the ECHR and most rights are domestically enforceable in UK courts.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

How many judges are there in a Grand Chamber of the ECtHR?

A

17 judges. Each signatory nation appoints one judge (currently 47)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

What are some principles of jurisprudence applied in the ECtHR?

A

○ PURPOSIVE: a “teleological” or “purposive” interpretive approach, looking at the underlying purpose of the treaty;

○ EVOLUTIVE: that ECHR is a living instrument, ensuring that its words are not fixed in 1950 but are interpreted in light of changes in values over time (this is sometimes referred to as an “evolutive” approach to interpretation); and

○ APPRECIATION: the margin of appreciation, whereby a degree of leeway may be afforded to the signatory state in question with regard to its culture and history when considering its national law as relevant to the alleged breach of rights. For example, the prohibition of abortion in Ireland would be considered in light of its constitution being influenced by Catholic doctrine.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What are the ECtHR’s decisions binding on?

A

Decisions are binding in international law.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What are the 3 types of Convention rights?

A
  1. Absolute rights
  2. Limited rights
  3. Qualified rights
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What is an absolute right?

A

A right that has no qualification.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What is a limited right?

A

Rights that contain narrow express exceptions of qualifications in the text of the articles themselves.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What is a qualified right?

A

Broader right, includes conditions where it may be lawfully restricted.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What are the 4 elements in determining the proportionality of a restriction on the Convention right in the UK courts?

A

(1) Legitimacy: any restriction on fundamental rights must serve a legitimate aim. For Articles 8–11 these are set out in the second paragraph of the rights.
(2) Suitability: restrictions on a Convention right must be capable of furthering the stated aim.
(3) Necessity: any restrictions on fundamental rights must go no further than is necessary to achieve the stated aims.
(4) Fair balance: overall, a fair balance must be struck between the rights of the individual and the interests of the community.

Good example: In M v H [2020] the court was asked to make an order that two children be vaccinated at the wishes of their father, and in accordance with the NHS vaccination schedule, against the wishes of their mother. Their mother argued that to order vaccination of the children would be in breach of their rights under Art 8. The court rejected this contention. The vaccination served legitimate aims: protecting the children from disease and preventing disease spread in the wider population. The measure proposed (vaccination) was suitable for furthering the aim of preventing disease. The mother contended that vaccination was not necessary, and that other measures, such as dietary changes, would achieve the aim with less intrusion into Art 8 rights. The court rejected this. Finally, the court concluded that ordering vaccination represented a fair balance between the Art 8 rights of the children and the objectives of protecting both the children and the wider population from disease. The making of the order was proportionate.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

What is Article 2 ECHR?

A

Right to life (Limited Right)

  • Qualified that a death resulting from state action (arrest, riot) or self-defence may be lawful.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What is Article 3 ECHR?

A

Prohibition of torture, inhuman or degrading treatment or punishment. (Absolute Right)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What is Article 4 ECHR?

A

Prohibition of slavery and forced labour (Absolute)

  • Mostly human trafficking cases.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

What is Article 5 ECHR?

A

Right to liberty and security (Limited Right)

  • Unless convicted, arrested, minors for education, infectious diseases/under the influence, detention for deportation.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

What is Article 6 ECHR?

A

Right to a fair trial (Limited Right)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

What is Article 7 ECHR?

A

No punishment without law (Absolute Right)

  • prohibits punishment for retrospective crimes
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

What is Article 8 ECHR?

A

Right to respect for private and family life (Qualified Right)

  • physical and psychological integrity, images/info about individual, personal autonomy (sexual behaviour, consent to medical treatment), one’s identity.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

What is Article 9 ECHR?

A

Freedom of thought, conscience and religion (Qualified Right)

  • right to hold and manifest a belief.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

What is Article 10 ECHR?

A

Freedom of expression (Qualified Right)

  • written/spoken word, afforded a wide margin of appreciation.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

What is Article 11 ECHR?

A

Freedom of assembly and association (Qualified Right)

  • Assembly means protest and association means political or union party.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

What is Article 12 ECHR?

A

Right to marry (Qualified Right)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

What is Article 14 ECHR?

A

Prohibition of discrimination

  • can’t be relied upon independently, must be with another breach of a right.

Lady Hale highlighted four key questions to be considered in relation to Art 14.
(1) Do the circumstances “fall within the ambit” of one or more of the ECHR rights?
(2) Has there been a difference of treatment between two persons who are in an analogous situation?
(3) Is that difference of treatment on the ground of one of the characteristics listed or “other status”?
(4) Is there an objective justification for that difference in treatment?

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

What is Article 15 ECHR?

A

Derogation in time of emergency

  • a mechanism by which rights may be disapplied in certain circumstances.

E.g. UK Govt disapplied Art 5 in Anti-Terrorism, Crime and Security Act 2001 to detain terrorists without charge.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

What year did the HRA 1998 come into effect?

A

In 2000.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

After the HRA 1998, can you go straight to the ECtHR?

A

No, you must first go through the UK courts.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

In which 2 ways does the HRA 1998 protect rights?

A
  1. Legislation must be made and interpreted in line with the Convention rights.
    - s19 new legislation complies with Convention rights (statement of compatibility)
    - s3 requires legislation to be interpreted in line with Convention rights
    - s4 allows a declaration of incompatibility to be made about primary legislation if it cannot be interpreted to be compatible with the Convention rights.
  2. Ensures public authorities act in a Convention-compatible way and provides mechanisms for individuals to make legal challenges if they do not.
    - s6 states that it is unlawful for a public authority to act incompatibly with the Convention rights.
    - s7 allows victims of a Convention right to bring proceedings against a public authority
    s8 - allows for a remedy when Convention rights have been breached.

ALSO s2 requires UK courts to take into account decisions of the ECtHR when interpreting Convention rights.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

What is s2 of HRA 1998?

A

The UK courts must take into account ECtHR rulings when looking at an issue in connection with the Articles of the Convention.

ECtHR judgments are highly persuasive, but not binding.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

Which 3 sections of the HRA 1998 are key in ensuring legislative compliance with Convention rights?

A

s19: requires a minister to make a statement of compatibility when presenting a Bill to Parliament. No compatibility does not mean it cannot pass.

s3: requires legislation to be interpreted in line with Convention rights ‘so far as it is possible to do so’

s4: allows a declaration of incompatibility to be made about primary legislation if it cannot be interpreted to be compatible with the Convention rights.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

Which 3 sections of the HRA 1998 ensure public authorities act in a Convention-compatible way and provides mechanisms for individuals to make legal challenges if they do not.

A
  • s6 states that it is unlawful for a public authority to act incompatibly with the Convention rights.
  • s7 allows victims of a Convention right to bring proceedings against a public authority
    s8 - allows for a remedy when Convention rights have been breached.
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

What is the new Bill of Rights?

A

A Bill set forward to attempt to replace the HRA 1998.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

Which 3 Convention rights apply to policing in the UK?

A

Art 5: right to liberty
Art 6: right to a fair trial
Art 8: right to private and family life

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

What are police officers forbidden to do?

A

Join trade unions or take an active part in politics.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

Where are the statutory frameworks for police powers to stop, search, arrest and detain found?

A

In the Police and Criminal Evidence Act 1984 (PACE 1984).

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

What does the PACE 1984 allow police officers to do?

A

Stop
Search
Arrest
Detain

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

When is it okay for police to exercise the rights given in PACE 1984?

A

When there are reasonable grounds to suspect that a given state of affairs exist.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

Why does PACE 1984 refer to Codes of Practice to find out how to exercise their powers?

A

Using codes (non-statutory language) means a lay person and police officer can both understand the guidance.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

Are the Codes of Practice from PACE 1984 law?

A

No, they are not.

40
Q

Can the Code (PACE 1984) be admissible in evidence?

A

Yes, it can be referred to as evidence.

41
Q

What is the rule about the Code and evidence obtained in breach?

A

Courts help to ensure that police officers comply with the Codes by refusing to admit evidence that has been obtained in breach of the Codes.

42
Q

What is s2 PACE 1984?

A

Powers of stop and search.

43
Q

When can stop and search power be discharged?

A

Stop and search power can only be discharged if a police constable has reasonable grounds for suspecting that they will find stolen or prohibited articles (like offensive weapons) as a result of the search.

44
Q

What is the test for ‘reasonable suspicion’ in s2 PACE 1984?

A

The test for reasonable suspicion must be applied in the particular circumstances of each case and has two parts:

(1)   Genuine suspicion. The officer must have formed a genuine suspicion in their own mind that they will find the object for which the search power being exercised allows them to search. 
(2)   Objective basis on suspicion, reasonable person come to same conclusion. The suspicion that the object will be found must be reasonable. There must be an objective basis for the suspicion based on facts, information and/or intelligence which are relevant to the likelihood that the object in question will be found, so that a reasonable person would be entitled to reach the same conclusion based on the same facts and information.
45
Q

Which Code is the test for stop of search found?

A

Code A - reasonable suspicion.

46
Q

When can police officers disregard information?

A

When it is likely not to be trustworthy.

47
Q

What are the two types of powers of arrest?

A
  1. The power of arrest without warrant
  2. The power of arrest with a warrant
48
Q

Where can you find the statute and guidance on powers of arrest without a warrant?

A

s24 PACE

Code G s24

49
Q

What does Code G provide?

A

Powers of arrest WITHOUT a warrant.

Reasonable grounds to believe the suspect is:

  • about to commit/is committing an offence
  • guilty of a possible offence
  • guilty of an offence
50
Q

All powers of arrest are subject to a test of necessity. When is it necessary to arrest someone?

A

It is necessary to arrest someone to:

  1. Establish name or address
  2. Prevent injury to the person or another
  3. Prevent loss or damage to property
  4. Prevent an offence against public decency
  5. Prevent an obstruction of the highway
  6. Protect a vulnerable person from the arrested person
  7. Allow prompt and effective investigation of the offence
  8. To prevent prosecution of the offence from being hindered by the disappearance of the person in question.
51
Q

Who usually issues warrants?

A

Magistrates

52
Q

What must a warrant specify?

A

Specify the person and the general nature of the charge.

53
Q

Who can the courts issue a warrant against?

A

Warrants can be issued against anyone who has committed or is suspected of committing an offence within that jurisdiction or who is present in that jurisdiction.

54
Q

What is a general warrant?

A

A illegal warrant, that authorises the arrest of unspecified persons or arrest for unspecified crimes.

See in Entick v Carrington [1765]

55
Q

What are the rules of PACE 1984 around what happens with police stations?

A
  • s29: anyone attending a police station of their own volition can leave at any time unless under arrest.
  • s30: a suspect must be taken to a designated police station (those with adequate facilities for detaining a person for more than 4 hours) as soon as practicable.
  • s31: a person arrested or voluntarily attending a police station may be arrested for another offence rather than being released.
56
Q

When is it only okay to detain a person against their will?

A

When they are lawfully arrested.

57
Q

Which section of legislation and codes cover detention of suspects?

A

Part 4 (IV) PACE 1984

Code C

58
Q

What are the rules around how long you can detain a suspect?

A

○ no more than 24 hours without charge, unless authorised by a senior police officer or magistrate.

○ May be extended for up to 36 hours by an officer of superintendent rank or above.

○ s43 and s44 PACE: A Magistrates’ Court has the power to authorise further extensions, up to a total of 96 hours detention pre-charge.

59
Q

When must a person be brought before a Magistrates’ court after being detained?

A

s46: A person detained after being charged must be brought before a Magistrates’ Court as soon as practicable - no later than the day following the charge (with certain exceptions).

60
Q

What happens if the necessary reviews of detention aren’t undertaken?

A

The detention will be unlawful.

61
Q

What type of officer must every police station have?

A

A custody officer, who decides whether it is necessary to detain the arrested person.

They must be at least a sergeant and not part of the investigative team.

62
Q

What must the custody officer keep track of/make sure of?

A

‘The Custody Record’

Custody officer must keep a record of everything that happens to the accused ‘the custody record’, but also ensure that PACE 1984 and Codes are obeyed.

63
Q

Which part of the PACE 1984 is about clinical treatment and attention?

A

s9 PACE 1984

64
Q

What are the options for a detained person after further proceedings?

A

They can either be:

  • remanded in custody
  • remanded on bail
65
Q

What must be given to secure bail?

A

A surety, given by a person who guarantees that the prisoner will duly appear from trial. If they don’t the money given will be paid.

66
Q

When will a court deny bail to a defendant?

A
  1. court is satisfied that there is an unacceptable risk that if released on bail the defendant would:
    ▪ fail to surrender to custody;
    ▪ commit an offence; or
    ▪ obstruct the course of justice; or
  2. it is necessary to detain them for their own protection.
67
Q

What are some conditions that the defendant may have to comply with whilst on bail?

A
  • surrender their passport
  • reporting to police
  • enter a recognisance (promise to pay money if bail terms aren’t kept)
68
Q

Which piece of legislation governs bail?

A

The Bail Act 1976

69
Q

What are 5 safeguards for detainees?

A
  1. Custody officer must tell them orally and in writing that they have the right to have someone informed of their arrest.
  2. They must be given a written advice setting out their entitlements while detained (food, drink and interviews).
  3. If they don’t want legal advice, they must sign to this effect on custody record.
  4. They must be reminded of their right to legal advice before each review of detention, before interview and before identification procedures (Part 1 Code C).
  5. If the detained person is a child, their parent or guardian (and if they are subject to a supervision order, their supervisor) must be advised of their detention (s57).
70
Q

Where can interviews with an arrested person happen?

A

Only at a police station

71
Q

How must interviews be recorded?

A

Interviews must be noted down exactly at the same time.

All interviews related to indictable and triable either-way offences must be audio recorded in accordance with Code E.

72
Q

If evidence has been obtained unlawfully (outside of guidelines of PACE 1984 and Codes), can it still be admissible in court?

A

Usually no (s78), but there are exceptions.

E.g. in Alladice [1988] and in Dunn [1990], the court admitted interviews which were not contemporaneously recorded: the presence of a solicitor’s clerk at the interview was viewed as providing protection for the defendant.

73
Q

Is there still a ‘right to silence’?

A

No, it now is ‘you do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.’

74
Q

What if a police officer uses threats or promises to get a confession?

A

The court won’t allow these.

See Fulling 1987, woman told her husband was having an affair and confessed - not seen as threat or promise.

75
Q

According to ? section of PACE 1984, when may police take fingerprints?

A

s61 PACE 1984 permits police, on authority of a police inspector, to take fingerprints without consent in a range of circumstances.

If fingerprints are taken on suspicion, but are then cleared of offence, fingerprints must be destroyed as soon as is practicable.

76
Q

What are the rules around intimate and non-intimate body samples in the PACE 1984?

A

s62 PACE 1984 allows intimate body samples to be taken from non-arrested suspects for a recordable offence if authorised in writing by a superintendent.

s3 PACE 1984 allows non-intimate body samples (mouth swab) to be taken without consent from suspects who have not yet been arrested.

77
Q

What is the National DNA Database?

A

Police database that holds DNA from people with a recordable offence - around 5 million DNA profiles stored.

Under the new regime DNA and fingerprints of individuals arrested or charged but not convicted of an offence will have to be destroyed, unless one of the exceptions in PFA 2012 is triggered. For example, where someone has been arrested but not charged with a serious offence their DNA can be retained for up to five years.

78
Q

Which code contains guidance about the police’s power to search persons and property? (Powers of entry, search and seizure)

A

Code B

79
Q

What are the sections of the PACE for searching an arrested person?

A

s32: searches of an arrested person where a constable has reasonable grounds that the arrested person is a danger to themselves or others.

s54: searches at a designated police station by the custody officer, in order to complete custody record. (doesn’t allow intimate search)

s55: allows an intimate search if authorised by an officer at least inspector rank who has reasonable ground to believe that there are concealed items which could not be found without an intimate search.

80
Q

What does Code B say about when it is easiest to search premises?

A

It is easiest to search premises legally with occupier’s consent, preferably in writing if practicable. (PACE doesn’t mention this)

81
Q

What must be served each time a search is done?

A

Whatever power of search is being used, a Notice of Powers and Rights must be served. The form indicated the search power being used and explains the occupier’s rights.

82
Q

What are the PACE 1984 sections about warrants for entry and search?

A

s8: Warrant for entry and search can be granted by a magistrate if there are reasonable grounds for believing that an indictable offence has been committed and there is evidence on the premises, that will be admissible at trial.

s9: Without a warrant in order to:
- execute a warrant of arrest
- to arrest a person for an offence
- recapture a person at large
- to save life and limb
- prevent serious damage to a property

s18: provision for entry and search after arrest.

83
Q

Where in the PACE is power of seizure discussed?

A

The general power of seizure is contained in s19 PACE 1984, whereby a constable lawfully on premises may seize anything which is on the premises if they have reasonable grounds to believe that it has been obtained in consequence of the commission of an offence.
○ It must be evidence of the offence being investigated or evidence of any other offence. It must be necessary to seize it in order to prevent it from being concealed, lost, damaged, altered or destroyed.

84
Q

What is the Equality Act 2010 (EA 2010)?

A

It unifies anti-discrimination law, repealed many Acts (e.g. Disability, Equal Pay, Sex Discrimination etc)

85
Q

Under the Equality Act 2010, what framework was established?

A

EA 2010 established a framework of protected characteristics and prohibited conduct.

Under the Act it is unlawful to discriminate against someone (or act in another manner that is prohibited) because of a protected characteristic.

86
Q

Under the EA 2010, what are the 9 protected characteristics?

A
  • age;
  • disability;
  • gender reassignment;
  • marriage and civil partnership;
  • pregnancy and maternity;
  • race;
  • religion or belief;
  • sex
  • sexual orientation.
87
Q

What are the 4 main forms of prohibited conduct via the EA 2010?

A

1) direct discrimination
2) indirect discrimination
3) harassment
4) victimisation

88
Q

What is direct discrimination?

A

Direct discrimination is where person A treats person B less favourably than person A would treat others, because B has a protected characteristic. For example, it would be unlawful to refuse person B a promotion because she is pregnant.

89
Q

What is indirect discrimination?

A

Indirect discrimination is where person A adopts practices or policies which impact more severely on people (such as B) with a protected characteristic. For example, a company advertises a job requiring ten years’ experience. This could potentially be indirect discrimination on the basis of age, because it would exclude younger people who may still have the qualifications and skills necessary to do the job.

90
Q

What is harassment?

A

Harassment is where person A treats person B in a way which violates their dignity, or creates an intimidating, hostile, degrading, humiliating or offensive environment for B, in relation to a protected characteristic. For example, a person in a wheelchair visits a supermarket, and a shop assistant makes derogatory comments about them.

91
Q

What is victimisation?

A

Victimisation is treating someone unfairly if they are taking action under the Equality Act. For example, it would be victimisation for a person to be dismissed because they make a complaint of sexual harassment at work.

92
Q

Under the Equality Act, what if someone does not make reasonable adjustments for a disabled person?

A

This is unlawful under the EA.

93
Q

What else does the EA cover, on where unfair treatment may be restricted?

A

The Act also prohibits unfair treatment in the workplace; when providing goods, facilities and services; when exercising public functions; in the disposal and management of premises; in education; and by associations (such as private clubs).

94
Q

What is the Public Sector Equality Duty?

A

s149 EA 2010 imposes a particular duty on public authorities in relation to equality, the Public Sector Equality Duty (PSED).

Public authorities are to have due regard to:
- eliminate conduct prohibited under the Act;
- advance equality of opportunity between persons who share and do not share a protected characteristic;
- foster good relations between persons who share a relevant protected characteristic.

95
Q

What did the Equality Act 2006 establish?

A

The Equality and Human Rights Commission.

96
Q

What is the Equality and Human Rights Commission and what is its purpose?

A

The EHRC is a non-departmental public body with statutory powers.

The commission has duties to promote equality and human rights and has a range of powers underpinning this, including:
- the issuing of codes of practice,
- conducting inquiries and
- investigating whether persons have committed unlawful acts.

97
Q

What has the Equality and Human Rights Commission (EHRC) done?

A

Some of the commission’s work is broad ranging in nature:
- for example, the commission produced a range of guidance relating to the impact of the coronavirus pandemic on equality and human rights.

Other work looks specifically at particular individuals or organisations:
recent investigations by the commission have included anti-Semitism in the Labour Party, and the gender pay gap at the BBC.

Wrapped: Legal Systems (11 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions