A fundamental contribution of constitutional courts is offering clarifications of the nature of the binding power that the European Convention on Human Rights (ECHR) has on domestic laws despite the divergences. In UK, the ECHR has been incorporated in the laws via the enactment of the Human Rights Act (HRA) of 1998, which places a legal obligation to public authorities and the police system to consider the people’s rights while exercising their operations.
This paper would be discussing the importance of the three of the four principles in the jurisprudence of the European Court of Human Rights (ECtHR). To briefly name them, these principles are (a) the notion of the European Convention on Human Rights being a ‘living instrument’; (b) the Margin of Appreciation; (c) proportionality; and (d) absolute v Qualified rights. Out of the four, the paper will focus on concept of ECHR being a living instrument, the margin of appreciation, and proportionality.
The doctrine of ‘living instrument’ (hereinafter, ‘doctrine’) has its background in the decision of Tyrer v United Kingdom where the judges defined the ECHR convention as the ‘living instrument.’ The doctrine features three main principles. The first one is the accommodation of the ‘present-day standards’ in the interpretation. The meaning of the rationale is that as the society changes, the rights and freedoms protected by ECHR should also be updated to fit well with the contemporary society. The second one is that the Court is able to consider only the present-day standards which are common amongst member states. What this means is that the Court will only include into the convention the matters that can be found in each of the member states. To illustrate this with an example, the development of transsexual’s rights as enshrined in Article 8 were once left to the UK discretion. However, later after 12 years, the Court changed the approach due to the progressing international trend in the increased social and legal recognition of the transsexuals as an emerged sexual identity. Lastly, the Court does not assign a decisive position to what the respondent member state considers as an acceptable standard.
The importance of the interpretation as living instrument has also had an impact on the Police and Crime Evidence Act 1984. The application of the ‘evolutive’ interpretation of ECHR has led to far less use of physical force on the detainee to extract information or confession. In the ruling of Cadder, the Supreme Court of UK ruled that any evidence acquired without access or presence of a lawyer will irreversibly violate the suspect’s right to a fair trial. Another example that had a landmark change on PACE was the case that was filed by 17 years-old minor where it changed the historical treatment of 17-year-old kids as adults.
The significance of this doctrine can be inferred from its different justifications. One of the important features of the Court is its general approach in the interpretation of treaties which Letsas refers to as the Strasbourg’s interpretive ethic. The approach rejects the traditional interpretation which used textualism and intentionalism when interpreting treaties to adapt to the new changing demands. A landmark case is the decision given above of acceptance of the transsexual gender. A further justification adding to the rejection of textualism is that the Convention’s text in itself is sometimes ambiguous, and it often requires to be supplemented with elaborative interpretation to make it practical in adjudication. For instance, ‘respect for private life’ as contained in Art 8 was construed to include people’s social, economic or personal aspects of everyone’s private life including the aliens. Also, someone’s family life was interpreted to mean substantive family which includes people with near ties such as grandparents and grandchildren.
The MoA is the extent wo which ECHR is willing to expand the convention to fit to the concerned domestic law. The flexibility allows national authorities to blend the provisions of the convention with their laws in a way that is workable as per the state due to varying differences within national systems. Another importance is that it allows states to tailor the convention depending on their available resources.
MoA is places national authorities in charge of their own legal dilemmas as they are in a better understanding of the situations back in their home states than international courts. MoA has its roots in the principle of subsidiarity inherent in international law decision-making processes. The principle of subsidiarity ensures that international institutions do not assume the functions in which the government institutions nearest to the people could have performed more efficiently and appropriately. For instance, in Handyside v The United Kingdom the ECtHR specified that it had no consensus on the whole matter of protecting public morals, it gave the national authorities room to interpret it as per their society. Another example is the issue of gay marriage that was handled in Schalk v Kopf.Again, at para 58, the court stated that it had not reached to a consensus yet leaving contracting States a margin of appreciation to their judicial and legislation supervisions. Furthermore, apart from national authorities being able to understand their issues, these authorities are in a better position in adopting the general policies decided at the international level.
Another illustration of the application of MoA in UK is the case of Austin. The court first based its reasoning on ECHR a living instrument while analyzing the technique used for crowd control (kettling), and decided that there was no deprivation of right to liberty. The ECtHR said that interpreting the PACE in present day, it must consider modern challenges that police forces faces which the textualism application of Article 5 would make it impractical for the police to exercise their duty. In the same case, the ECtHR stated that the police must be allowed some discretion to make operational decisions.
MoA creates an avenue for the expansion of the law within party states. For instance, despite the fact that entire decisions are directed on an individual case, the courts in the party state can extend the decision to create a ‘generic’ decision through preliminary reference to Strasbourg decision. Lastly, MoA enables the Court to utilize underenforcement principles in situations where there is uncertainty. That is, they can subcontract the decision-making process to reliable national authorities. Through MoA, the Court can always seek help with the issues that it may not have resources. For instance, the decision of James case was reached through cooperation with the British legislature to find out what would be best for the public interest.
Considering the lack of consensus reason given above by ECtHR for justifying the extent to the state’s margin, it seems that MoA undermines the concept of universality human rights. This fact can be illustrated the Hoffman’s lecture that human rights might be universal, however, at their ‘application necessitates some trade-offs and concessions, and application of judgments which only fits to the social and legal frameworks of a particular society. Dominic McGoldrick an explanation through the nature ‘voluntarist version of margin of appreciation’ by asserting that ECtHR need to have a political projection on the fact that judicial authorities ultimately must attain citizen’s confidence. So if Court make interpretations that extremely diverge from citizen and their governments, contemplation, the people will eventual resist those decisions.
The principle of proportionality (PoP) instructs that any attempt by the state that interferes with human rights must be reasonable or proportionate. The main objective of PoP is to ensure that there is no arbitrary limitation on freedom and human rights. On analysis, PoP comprises three sub-principles which are adequacy, necessity, and proportionality stricto sensu. However, some legal scholars have added ‘legitimate aim’ as a fourth element which comes before all the others since any attempt to limit human right should first go through a legitimacy test.
The importance of a legitimate aim while deciding on imposing a limitation on freedom and rights serves to protect fundamental principles of democracy in a society. One example is where the freedom of movement (modified quarantine) could be limited during an outbreak of infectious diseases to prevent its spreading.
Adequacy in limiting people’s human rights ensures that there a reasonable or justifiable relationship between the legitimate aim and the methods employed in accomplishing the pursued aim. In Hirst v. the United Kingdom case, ECtHR reasoned that preventing the appellant from voting since he was subject to blanket ban was not adequate to limit his right to vote.Necessity is another sub-principle of proportionality that requires authorities limit rights when it is necessary, or limit human rights when it is the last resort. For instance, Osman case, the ECtHR held that the police violated Art 6 when by restricting the applicant’s right to access the court.
Conversely, there have been arguments that even though proportionality can fit in England law, it could bring unclear and regrettable situation to the courts when they overrule administrative decisions of bodies. Sometimes, proportionate was viewed as novel and dangerous when the House of Lord were preventing its influence in the judgement. In the same case, the court looked at proportionality as a tool for forcing the courts to substitute its own judgments on what was needed for the Secretary of State. In this regard, proportionality was viewed as an unlawful burden on executive powers.
The main issue in this scenario regards a violation of rights of a Suspect or Accused persons. The idea of interdependence and interrelations of human rights means that the enjoyment of one right contributes to the enjoyment of another, and violation of one connects to the violation of others. While looking at the scenario, Article 8 of the UK HRA prohibits against violation of someone’s right to privacy and family life. In addition, article 14 prohibits against any form of discrimination based on someone’s “sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Therefore, searching Anjam and Craig just because they matched some physical factors is a form of discrimination which is a contravention of article 14.
The Article 14 may also apply broadly in different contexts, but in the case of arrests, it deals with discriminative actions of criminal and justice systems. The law requires equality in all treatment of arrested persons, which means persons arrested for a similar issue should be treated the same. There was this violation when Anjam was processed and Craig was left out.
In In UK law, the powers by the police to stop and search someone are regulated in PACE under Code A. According to PACE part 1(3), “the provisions gives no powers to a constable to conduct a search on people of vehicles or anything of this concern unless such officer has reasonable grounds for believing or suspecting he would be likely to get the stolen items.” In the case of Gillan and Quinton v United Kingdom, the court ruled that personal factors must be supported by reliable information such as intelligence report or specific behavior. In PACE Code A, Para 2.2B explains that personal factors and general information are not reasonable grounds that police should use to suspect that someone has committed a certain crime. Again, stop and search or arresting someone due to a previous conviction is prohibited in PACE Code A in para 2.2B. Coming back to the scenario, it was unlawful for the police to stop and search Craig and Anjam. Matching the descriptions of the burglars or having a previous record of conviction were not reasonable grounds for the police actions.
Also, under article 6(2) of HRA, the provisions require that all arrested persons to be held and treated as innocent until the time when the court would decide that the person was guilty on the account of the required legal procedures. There is no violation of this right when someone is handcuffed or when police use restraint methods to prevent escaping. However, this right mostly subject to violation in situations where the rights to be processed without delay and freedom from torture are violated. Also, the right can be violated when arrested persons are denied the chance to see lawyers or communicated with family members. During arrests, Anjam and Craig should have been informed of the reason for the arrest. Therefore, the police action violated the provisions for the presumption of innocence when the treated them as just people who were guilty of the offences and even denied them a chance to talk to family members or lawyers.
Article 5 of HRA provides that everyone has a right to liberty and security.These provisions prohibit actions by the government that that deprives someone his liberty or security except in the procedures that are prescribed in law. Some of these procedures are a lawful detention or lawful arrest. However, the situation of both arrest or detention may vary broadly in the levels of openness or accountability. Areas of variance include the measure of contact with family members or legal counsel, secrecy or publicity of the arrest, health the arrest and situations of incommunicado detention. One form of incommunicado detention is unannounced detention. This situation happens when someone is arrested or detained and all his efforts to notify friends, family, or a legal counsel are denied, yet the officials do not proactively take the responsibility of informing the friends, family, the person’s legal counsel about the detention. In most cases, the ECtHR has ruled such situations as torture or attempts to make someone confess or admit to the accusations. In most cases, ECtHR holds it a violation of Article 3 and Article 5 whenever someone is held in incommunicado depending on circumstances as seen in a number of cases. Considering the case of Anjam and Craig, the police violated these provisions by not allowing them to talk to their family members or lawyer.
Restriction of the rights to talk to a lawyer are mainly governed under Article 6 of HRA where someone should be allowed to seek legal assistance. ECtHR interprets the time trial as starting from notification of the reason for the arrest to the ruling or could also include the immediate time when the investigation is initiated officially, time for arrest, or time for questioning. At some time, ECtHR has interpreted the time of the trial to start during when a search is initiated. Starting with the arrest of Anjam and Craig, they were supposed to first be informed of the reason for the arrest which are the provisions of Article 5 (2).
On the part of seeking legal assistance, art 6 of HRA provides guarantee to a fair trial through the accused right to access his/her lawyer. In addition to this, there is also a right for the government to provide funding for a lawyer especially where the interests of justice are a major requirement. Like as discussed above, art 6 has been interpreted to mean that access to a lawyer should be provided not only for those facing criminal charges, but also those who are undergoing investigation stage. In the case of John Murray v United Kingdom, the court held that the rights of the applicant which are provided under art 6 were violated when the claimant was denied access to legal assistance for 48 hours since when he was put into the custody. Similarly, in Magee v United Kingdom, the court stated that denying the suspect the right to access the advice of a solicitor before the commencement of the interrogation breached the right to a fair trial and hearing. The court went on to say that this breach caused irretrievable prejudice in the fundamental rights of the defendant.As noted, Anjam and Craig were entitled to get legal advice from a legal counsel, and they were also entitled to see to talk to their family members so that they can be assisted with contracting a legal counsel.
Finally, in Mckay V the United Kingdom, the applicant alleged that there was violation of his human rights after being denied bail by the magistrate and instructed to apply to the high court which caused him to an extended stay of four days.The Court held that there was violation of the applicant’s rights since the magistrate had the powers to grant. In addition, the court said that the magistrate should have considered the existence of reasonability for the grounds for the applicant’s suspicion to have committed the offences. Even if the facts of this case regard denial of a bail, the case is somehow similar to Anjam and Craig as it concerns unreasonable grounds for arrests, and delay of the processing of the case due to negligence of the police offers which caused their delay in the custody.
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