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A court has to identify whether a Convention
right exists in proceedings before it and can apply the Convention
principles to protect that right. A restriction of Convention rights
will only be justified if:
• 1. It is allowed by law, and
• 2. It pursues a legitimate aim, and
• 3. Is proportionate and necessary.
Individuals can bring civil proceedings against a public authority
which has breached or threatens to breach their Convention rights
or can rely on their Convention rights in other legal proceedings.
A right to a fair trial within a reasonable time and by an independent
and impartial tribunal / court, is likely to be one of the most
asserted rights in the civil courts.
Article 6(1) supports the right of access to a court, which includes
offering financial help in appropriate circumstances. For example,
an order that one party in a civil case pay a sum into court as
security for the other party's costs could infringe Article 6(1)
if that party cannot raise the sum or has a reasonable prospect
of succeeding in their case. Or if a litigant is prevented from
having access to a court because of financial restrictions. This
may give rise to a challenge to the UK Community Legal Services
Funding system, (formally Public Funding).
Article 6 also guarantees a right to be given reasons for a court
decision and a right to have decisions made within a reasonable
Possible areas of challenge might be:
a) The changes to eligibility for Community Legal Services Funding
(Public Funding) which has placed a wider number of people outside
the scheme and therefore arguably has denied them access to financial
assistance in bringing court proceedings.
b) Strike out provisions of part 24 of the civil procedure rules
which allows cases to be struck out without the court considering
all the evidence which would be available at trial.
c) The disclosure rules under the civil procedure rules which in
fast track cases limits the nature and type of documents which can
be disclosed (standard disclosure).
d) Expert evidence rules where there is a limitation placed on experts
giving oral evidence.
• Article 5, (the right to liberty and
security of person)
• Article 8, (the right to privacy)
These Articles are the most applicable to the question of the exercise
of police powers.
The police are under a duty not to breach Convention rights and
to protect individuals from the actions of others. However, the
prevention of crime and the protection of the rights of others would
be legitimate grounds for interfering with certain rights. For example,
police surveillance, fingerprinting, retaining personal data, stop
& search would normally breach Article 8 rights, but they are
not prohibited by the Human Rights Act as long as the action is
in accordance with the law and is necessary and proportionate.
Other relevant articles are:
• Article 6, (right to fair trial)
• Article 7, (prohibition of retrospective criminal penalties,
this is an absolute right)
• Article 10, (freedom of expression)
• Article 11, (freedom of assembly and association)
Possible challenges may be made in the area of bail where a person
previously convicted of a serious offence is only granted bail in
exceptional circumstances or where bail is excluded where the defendant
committed a serious offence or where the defendant arrested for
breach of bail is again denied bail. Also the disclosure provisions
of the Criminal Procedure & Investigation Act 1996 may be subject
to scrutiny as it can often be difficult to obtain relevant information
from the prosecution and it is also arguable that the timing of
disclosure by the prosecution, (after committal and after the defendant
has set out his case) leads to unfairness.
Entrapment methods of the police have already been found by the
European Court of Human Rights to breach Article 6, if there was
no pre-disposition on the part of the defendant to commit the crime.
A person is denied a fair trial if they are denied access to legal
advice at crucial moments following their arrest, such as during
a police interview. Article 6 also includes a right to a trial within
a reasonable period of time, especially where a person is denied
bail, (Article 5(3)) and therefore any delays may present a problem.
This is especially so in complex fraud cases.
The relevant sections of the Human Rights Act
• Article 6, (right to fair trial)
• Article 4, (prohibition of slavery or forced labour)
• Article 8, (right to privacy)
• Article 9, (freedom of thought, conscience and religion)
• Article 10, (freedom of expression)
• Article 11, (the right to freedom of association, including
joining a trade union)
• Article 14, (prohibition of discrimination)
Please see section on Civil Proceedings
for a discussion on Article 6.
The right to join a trade union under
Article 11 will be subject to union rules concerning membership.
Article 11 also guarantees the negative right not to join a trade
union in certain circumstances.
Article 8 may be of importance where
employers interfere with communications by staff, such as intercepting
telephone calls, email or interfering with internet use. Also the
disclosure of personal information about an employee to third parties
without that employee's consent may breach Article 8, particularly
if it is confidential medical information.
Article 11 has not so far been interpreted
by the European Court of Human Rights, as entitling employees to
time off on religious holidays or days of rest.
Article 10 has not been interpreted
so far as to give employees the right to wear what they like to
Article 14 provides that Convention
rights must be protected without discrimination on any grounds such
as, sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority,
property, birth or other status. Disability as well as sexual orientation
and mental status is thought to fall under "other status".
Any person wishing to rely on any
of the Convention rights should include express reference to the
Human Rights Act and the relevant Article in their IT1 form, (application
to an Employment Tribunal) or Claim Form to the County Court.
The relevant sections for family proceedings are:
• Article 8(1), (right to respect for a person's family life
• Article 12, (the right to marry and found a family).
Any interference in these rights must be in accordance with the
law, be necessary, for a legitimate aim and proportionate, i.e.
there are relevant and sufficient reasons for taking action, a less
restrictive alternative does not exist, the rights of all interested
parties were taken into account and safeguards exist to prevent
an abuse of power. These considerations are especially relevant
to care proceedings brought by local authorities where the removal
of a child from his or her parents should only be done in exceptional
As yet Article 8 has not been interpreted by the European Court
of Human Rights to recognise a stable relationship between lesbian
and gay couples as "family life". Although Article 8 has
been interpreted to recognise relationships between transsexuals
and their opposite sex partners as "family life".
Family life also includes ties between near relatives as well as
the parent/child relationship. The European Court of Human Rights
has also recognised that the protection of family life includes
the right to separate as well as protecting such rights as contact
to a child.
Possible challenges may arise for example, in the area of adoption
law where refusal of contact between a natural parent and their
child once adopted may breach Article 8 if the refusal is not based
on protecting the child's best interests.
If a party in family proceedings wishes to rely on a provision of
the Human Rights Act they must specify in their application, answer,
petition or other originating document, precise details of the Convention
rights they allege have been infringed.
The Human Rights Act will have an impact on other
areas of law, such as immigration and education.
For example, asylum cases could involve a potential breach of Article
3, (prohibition of torture and inhuman and degrading treatment or
punishment). The European Commission has held that serious discrimination
on the grounds of race can amount to degrading treatment under Article
3. As can sending a seriously ill person to a country where there
is no adequate health provision.
Challenges are also likely under Article 5, (right to liberty) in
respect of detainees and the power to detain.
Article 2 of protocol 1, (right to education) is important to the
area of education law. However, as the UK has restricted Article
2 by entering a reservation that it is only applicable as long as
it is compatible with the UK's provision for "efficient instruction
and training and the avoidance if unreasonable public expenditure".
This restriction could still be subject to a challenge in the European
Court of Human Rights.
The European Court of Human Rights has held that the right to education
was a right of access to educational facilities which already exist
and does not give a right to individuals to require the state to
set-up a particular level or type of education.
There is also no general right of access to a particular school
of choice. It is unclear whether Article 2 of protocol 1 gives parents
a general right to educate their children at home.
The following Articles will probably have the
greatest impact in this area of law:
• Article 1 of the first protocol, (peaceful enjoyment of
possession and general protection of property rights)
• Article 6, (right to fair trial)
• Article 8, (protection of family life and home)
Possible challenges may occur in the area of landlords self help
remedies, such as the right of distress where landlords can seize
goods on premises in lieu of rent owed on those premises without
getting a court order, the right of forfeiture whereby the landlord
can re-enter the premises without issuing proceedings where rent
is owed or even re-entry to a tenant's premises to carry out repairs.
Also the law of adverse possession which allows a squatter to acquire
legal ownership after 12 years.
The difficulty is that many of these self-help remedies are contractual,
(rights given in the lease) and interference in such remedies may
not be justified if the domestic courts consider them to be fair,
necessary and proportionate.
Also Article 1 of the first protocol allows the state to deprive
individuals of their property and possessions if it is necessary
to control the use of property or secure payment of taxes and other
charges or penalties.