Flashcards
(Articles) Freedom of Person
Cards in this deck (7)
- 1art 2 ECHRRight to life
1) right to life is protected by law, no one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2) deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary in:
a) defense of any person from unlawful violence
b) Order to effect a lawful arrest or to prevent the escape of a person lawfully detained
c) Acton lawfully taken for the purpose of quelling a riot or insurrection - 2Art 3 ECHRfreedom from torture and inhuman and degrading treatment.
when can a state interfere with this right ?
absolute right, in that it permits no derogation and is expressed unequivocally.
imposes both negative and positive duties on public authorities.
negative: no one shall be subject to torture or to inhuman or degrading treatment or punishment.
Positive: generally not absolute, see r v secretary of state for the home department. imposes positive duty on public authorities to take action to prevent individuals being subjected to torture and or inhumane na degrading treatment or punishment. - 3Art 5 ECHRright to liberty and security of the person guarantees against arbitrary arrest and detention are provided for by the ECHR art 5. A detention may be lawful where someone is imprisoned pursuant to the lawful sentence of a properly constituted out of for instance detained in hospital according to procedures laid down in the Mental Health Act 1983. Legislation such as the police and criminal evidence act 1984 allows for arrest and detention of persons suspected of certain crimes.
cannot be engaged unless a person has ben DEPRIVED of their liberty.
different varieties: question of a degree or intensity of the restrict placed upon freedom of movement and the general extent to which the state regulates control over the individual. Factors = type, duration, effects, manner of implementation of restrictive measure in question. must be sufficiently serious. - 4art 5(1)provides for the substantive right of liberty itself: goes not o say that no one cane be deprived of their liberty unless this is done "in accordance with a procedure described by law" and then only under 6 specific circumstances outlined a-f
C is most important: states that a person may be deprived of their liberty where that person is being lawfully arrested and detained for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offense or when it is reasonably considered necessary to prevent his committing an offense or fleeing after having done so. - 55(2)requires that an arrested person be informed promptly and clearly of the reasons for their arrest and any charge against them. Fox campbell and Hartley, court held that simply informing someone at the time of the arrest that they were being arrested on suspicion of being a terrorist, i.e. a broad allegation. did not satisfy this part of the art. However subsequent questioning in relation to specific offenses did provide enough detail of rate person questioned to understand why they were arrested so ultimately satisfying the requirement son the ECHR 5(2)
- 65(3)ECHR is one of the most important due process guarantees: right of a person arrested and detained under the ECHR art 5(1) (c) to be brought promptly before a judge.
see Brogan v UK (1989) 11 EHRR 117 - 75(4)states that a person who is arrested and detained shall be entitled (speedily) to challenge in court the lawfulness of the action taken against them.
see Hirst v UK (2001) Held that delays of 21 months and 2 years between reviews of the applicants continued detention amounted to a breach of the ECHR art 5(4).
See T and V v UK (2000) 30 EHRR 121 held that the ECHR art 5(4) had been vileatec because there had been no judicial control father applicants detention. Home secretary rather than a court had decided on the length of the tariff to be served and there had been on form of review.
Information
- Description
- BPP study notes ch 10, ECHR art 2,3,5,6
- Created by
- Spencer Bienvenue
- Views
- 4
- Rating