Due process under ECHR Flashcards
Article 5 - Definition
Limited and contains express exceptions. Permits an individual to be deprived of his liberty where he is being lawfully arrested on reasonable suspicion of committing a criminal offence or where it is necessary to prevent him committing an offence of fleeing after having done so. Police and Criminal evidence act falls under this
Article 5 - Police and Criminal evidence act (PACE)
S. 24 provides that an arrest may be made in relation to ‘any offence’. These powers are exercisable where a police officer has reasonable grounds to believe that an arrest is necessary for one of the reasons specified in S. 24(5) which reflect the requirements in Article 5
Article 5 - Requirements
1) The detained person must be brought before a court promptly
2) The detained person must be able to challenge the legality of their detention
3) The detained person has a right to compensation for any breach of Article 5
Article 5 - Lawful reasons for interference
1) The lawful detention of a person after conviction by a competent court
2) The lawful arrest or detention of a person for the purpose of bringing them before the competent legal authority on reasonable suspicion of having committed an offence
3) The lawful arrest or detention of a person for non-compliance with the lawful order of a court
4) The lawful detention of a person in order to deport them
Article 6 - Definition
Article 6 provides an individual must have a fair hearing. Article 6(1) allows a court to exclude the press and public from all or part of a trial for several reasons which include the interests of public order, juveniles or national security.
Contempt of court - Situations
This area involves freedom of expression and the administration of justice. Contempt of court can be either:
1) Civil contempt involving disobedience to an order of a court in civil proceedings
2) Criminal contempt which covers other forms of interference with justice - criminal contempt of court to publish an article which interferes with the course of justice
Contempt of court - Trial by press
Where a newspaper comments on a court case which has not yet been decided there is a danger that the newspaper report will influence a jury or put excessive pressure on the judge to decide the case in a particular way. This used to be a form of criminal contempt but now the court has to consider a range of issues before making a finding of contempt
Contempt of court - The contempt of court act - Strict liability
Doesn’t matter if there is not intent. This rule applies only to an act with interferes with particular proceedings such as prejudicing the jury against the defendant
Contempt of court - The contempt of court act - How it restricts liability
1)There can be liability only where a publication creates a substantial risk of serious prejudice. Risk of prejudice has to be substantial and the degree of prejudice has to be serious
2) The proceedings myst be active at the time of publication
Contempt of court - The contempt of court act - Defences
Defence of innocent publication - show that they were unaware and had no reason to believe that the criminal proceedings were active at the time of publication.
Contempt of court - Common law contempt - Definition
The offence will be committed where the publication was calculated to impede or prejudice the administration of justice - the publisher knew of the inevitable consequences of publication. Also an offence to impede the judicial process in the courtroom itself. Intentional. Proceedings need not be active.
