Human rights and civil liberties in the UK
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It is a guideline to use which includes statutes and case law relating to the UK but perhaps relevant for other EU countries. Only looks closely at 3 issues!
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Human rights and civil liberties in the UK
- 1. Human Rights and Civil Liberties in the UK Revision Exam revision – 1SLC651
- 2. European Convention on Human Rights Article 2-18
- 3. Absolute Rights • Right to LifeArticle 2 • Prohibition of TortureArticle 3 • Prohibition of Slavery and Forced LabourArticle 4 • Right to Liberty and SecurityArticle 5 • Right to a Fair TrialArticle 6 • No Punishment without LawArticle 7
- 4. Qualified Rights • Right to Respect for Private and Family LifeArticle 8 • Freedom of Thought, Conscience and religionArticle 9 • Freedom of ExpressionArticle 10 • Freedom of Assembly and AssociationArticle 11
- 5. Other Rights • Right to MarryArticle 12 • Right to an Effective RemedyArticle 13 • Prohibition of DiscriminationArticle 14 • Derogation in Time of EmergencyArticle 15 • Restrictions on Political Activity of AliensArticle 16 • Prohibition of Abuse of RightsArticle 17 • Limitation on Use of Restrictions on RightsArticle 18
- 6. Human Rights Act 1998 Recap
- 7. History 1941 Atlantic Charter Post-war blue print 1. No key territorial gains 2. All people have the right to self determination 3. 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)
- 8. 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
- 9. Benefits (principally): 1. Ensures consistent legal interpretation 2. Obliges public authorities to comply Refers to all public bodies and their agents Legal and political debate given definition 3. Delay and cost reduced 4. Symbolically – cultural shift 5. Better dialogue between UK judiciary and European Court of Human Rights Mutual respect
- 10. Case Law Terrorism 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
- 11. More detailed look at some articles Freedom of expression – article 10 National security Privacy – article 8
- 12. 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
- 13. 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
- 14. 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
- 15. 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
- 16. Statute and Case Law 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
- 17. 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
- 18. Statute and Case Law 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
- 19. 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
- 20. Case Law Summaries Chronological Order
- 21. 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
- 22. 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
- 23. The Observer and Guardian v. UK 1990 Spycatcher case 1986 Article 10 – Freedom of Expression 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
- 24. 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
- 25. Douglas v. Hello! 2001 Article 8 – Privacy Article 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
- 26. Wagstaffe Case 2001 Article 10 – Freedom of Expression 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
- 27. R v. Perrin 2002 Article 10 – Freedom of Expression 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
- 28. A v. B plc (Flitcroft v. MGN Ltd) 2002 Article 8 – Privacy Article 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
- 29. R v. Shayler 2002 Article 10 – Freedom of Expression National 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
- 30. R v. Secretary of State 2004 British Tobacco Article 10 – Freedom of Expression 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
- 31. Attorney General v. Scotcher 2005 Article 10 – Freedom of Expression National 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
- 32. Mosley v. News Group Newspapers Ltd (No 3) 2008 Article 8 – Privacy Article 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
- 33. R v. Perrin 2002 Article 10 – Freedom of Expression 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
- 34. R v. Perrin 2002 Article 10 – Freedom of Expression 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
- 35. 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
- 36. 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
- 37. HRH The Prince of Wales v. Associated Newspapers Ltd 2006 Article 8 – Privacy Article 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‟
- 38. CTB v. News Group Newspapers Ltd 2011 Ryan Giggs Case Article 8 – Privacy Article 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
- 39. 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
- 40. Past papers
- 41. 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?
- 42. 2011 1. “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.
- 43. 2010 1. 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.