Convention Geoff Daniels
In considering whether Geoff Daniels and/or ProD can use the Human Rights Act 1998 to challenge the decision of the Chief Constable of Collingwood District Police, it is essential to consider the Act in it's entirety, in conjunction with the relevant conventions and statutes involved in the scenario.
The Human Rights Act 1998, came into force in full on 2nd October 2000. It guarantees the Convention rights of the individual against interference by the state and enables people in the UK to enforce those rights and liberties in UK courts. Section 2(1) imposes a duty on UK courts to consider the decisions of the Court of Human Rights in Strasbourg, however, there is no mandate to follow them. Section 3 (1) of the Human Rights Act states: "so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights." Where the courts cannot do so, they may quash or disapply subordinate legislation. In addition under section 4, the higher courts can declare that the offending provisions of an Act of Parliament are incompatible with Convention rights. The Convention is treated as a LIVING INSTRUMENT and is capable of being interpreted in light of current conditions. In practice, the standards applied by the Strasbourg court provide the minimum consideration to be applied in cases where a breach of Convention rights is alleged, however, the courts are encouraged to develop their own domestic law of human rights in accordance with the doctrine of the margin of appreciation. Therefore, the UK courts have the latitude to develop law which is more protective of rights than that established by Strasbourg case law.
The guiding principle of the Act is that all public authorities must act compatibly with the human rights specified within it, thus effectively imposing a duty on public authorities to respect ECHR rights. The obligation is clearly set out in section 6 of the HRA 1998 which states: “it is unlawful for a public authority to act in a way which is incompatible with a Convention right.” The term ‘public authority' has not been specifically defined by the Act in order to allow for judicial construction, but it clearly includes the Police.
Section 7 of the Act states that: “a person who claims that a public authority has acted or proposes to act in a way that is unlawful under the Act may bring proceedings against the authority under the Act in the appropriate court or tribunal, or may rely on the Convention right concerned in any legal proceedings.” To be a victim a person must be directly affected by the act in question. The test to be applied here is outlined in Article 34 of the ECHR which states: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation …of the rights set forth in the Convention.” It should be noted that Strasbourg case law has established that organisations and interest groups have no right to bring proceedings unless they are directly affected by the act as is the case with ProD. (see Klass v Germany (1978) 2 EHRR 214)
Based on the facts of the case, it is clear that Geoff Daniels' and ProD's convention rights under Article 10 and Article 11 are being called into question. It has been established that legislation must be interpreted so as to give effect to, or enforce convention rights and that as a Public Authority, the Police are obligated to act in ways which are compatible with the Convention rights. Furthermore, Geoff and ProD can easily meet the definition of victim provided for in the Act and defined by Strasbourg case law. It follows that Mr. Daniels and ProD have a cause of action under the Act.
That being established, we must now consider the merits of the case. The Convention recognises that some human rights cannot be guaranteed absolutely. In the interest of the whole, it may be necessary to balance the rights of the individual and the rights of a democratic society. These are known as qualified rights under the Convention and include Articles 10 and 11. Both of these rights are described in two parts. The first part sets out the right and the second part qualifies the right by identifying the exceptions to it.
the interests of national security, or the need to prevent public disorder, might in some circumstances make it necessary for the authorities to ban protests or demonstrations, which would normally be protected as an expression of the right to freedom of assembly. The State cannot simply impose restrictions on rights on a vague pretext that there is a need to prevent disorder.
Klass v Germany (1978) 2 EHRR 214, Dudgeon v United Kingdom (1982) 4 EHRR 149, Keenan v United Kingdom (2001) 33 EHRR 38
Huang v Secretary of State for the Home Department [2007] UKHL 11
[2007] 2 W.L.R. 581
3) Lord Bingham also raised a further point on proportionality (para 19). Not only are the three questions in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 to be asked when deciding if a measure is proportionate. But assessments of proportionality also:
“must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage.” (R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368, (para 20))
In R. (on the application of Laporte) v ChiefConstable of Gloucestershire [2006] UKHL 55; [2007] 2 A.C. 105 the claimant was a peace protester who had been in one of three coaches taking passengers from London to RAF Fairford in Gloucestershire in order to join an anti-war demonstration. The police, believing that the protesters were members of a hard-core anarchist group, stopped the coaches and searched them. The coaches and passengers were escorted back to London due to the possible risk of a breach of the peace. It was found that only eight of the 120 passengers were members of the anarchist group. The question before the House of Lords was what test is to be satisfied by the police before they can lawfully take action to prevent a breach of the peace.
The House of Lords unanimously held that a breach of the peace must be imminent before any form of preventative action can be taken. Imminence is a threshold condition; it does not operate according to sliding scales of degrees of immediacy. There was also substantial agreement that no more intrusive action than is necessary can be taken to prevent the breach of the peace (Per Lord Bingham at para 46; Lord Rodger at para 66; Lord Brown at para 114).
As there was no indication of an imminent breach of the peace when the measures were taken against the claimant, the actions were therefore unlawful and a violation of her rights under Articles 10 and 11.
Lord Bingham also made the important observation that if “the public interest requires that the power of the police to control demonstrations of this kind should be extended, any such extension should in my opinion be affected by legislative enactment and not judicial decision.” Articles 10 and 11 are fundamental rights and “Any prior restraint on their exercise must be scrutinised with particular care” (para 52).
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