HUMAN RIGHTS AND THEIR RELEVANCE TO CRIMINAL LAW
Criminal Law, human rights and the ‘war on terror’ – what are the connections:
Armani da Silva v The UK EctHR 2016: Case brought by cousin, re. the killing of Jean Charles de
Menezes by police at Stockwell tube station in 2005.
Court found no violation of Art. 2 European Convention of Human Rights
- Art. 2 Right to life – includes duty to hold an effective investigation into death caused by the
state
- CPS: Insufficient evidence to prosecute SFOs, because:
o SFOs could possibly rely on self-defence OR
o Unlikely that their failings amounted to gross negligence
Shooters felt justified because they feared for the lives of those on the train and their own.
Sources of Human Rights Law:
Council of Europe treaties: European Convention on Human Rights and Fundamental Freedoms
1950 (ECHR) – EctHR (court)
Council of Europe is NOT THE EU
The UK ratified the ECHR in 1951, allowed individual petition to the European Court of Human
Rights (ECtHR) in 1966
ECHR sets out a number of rights that the UK is obliged to protect in the creation and application of
law.
Human Rights Act 1998 – Allows individuals to rely directly on the ECHR in the UK courts
Other UK law relevant to human rights – EG: The Terrorism Acts; other European and international treaties
Law Commission Reports; Draft Criminal Code
EU law and its relevance?
Maastricht Treaty included criminal law as a matter of intergovernmental cooperation.
EG: cooperation on fighting terrorism, human trafficking, corruption and other organised crimes.
Evidence and procedure – EG: European Arrest Warrant
Lisbon Treaty: Art. 82
European Union:
EU was originally conceived as a trade and economic union; criminal law wasn’t within it
competencies.
EU has targeted offences that commonly involve a cross-border element preventing criminal groups
from taking advantage of the patchwork of legal inconsistencies across Europe.
HRA 1988:
S. 1 HRA incorporates ECHR rights into domestic law.
Allows citizens to rely on ECHR rights and liberties directly in UK courts
Individuals can apply to ECtHR once domestic remedies are exhausted
New legislation, including criminal law, requires a government minister to make a statement of
compatibility with the ECHR
State also has a positive obligation to protect citizens from infringement of rights by state and others
- E.g. through criminalizing infringements (e.g. hate crime)
There is an obligation on domestic courts to take account of ECHR rights when interpreting and
applying all area of law
Domestic courts at all levels must as far as is possible interpret domestic legislation to give effect to
ECHR rights
s4 HRA 1988 higher courts also have the power to issue a ‘declaration of incompatibility’ where
there is an inconsistency with ECHR rights and no obvious interpretive solution.
Article 2 – Right to Life:
Art 2 has affected the definition of homicide offences, abortion, euthanasia as well as leading to
conflict for self-defence.
- Self-defence/defence of another: use of reasonable force….
- Murder: the unlawful killing of a human being…
Cases: how it applies
- Jean Charles de Menezes and others killed by the state
Criminal Law, human rights and the ‘war on terror’ – what are the connections:
Armani da Silva v The UK EctHR 2016: Case brought by cousin, re. the killing of Jean Charles de
Menezes by police at Stockwell tube station in 2005.
Court found no violation of Art. 2 European Convention of Human Rights
- Art. 2 Right to life – includes duty to hold an effective investigation into death caused by the
state
- CPS: Insufficient evidence to prosecute SFOs, because:
o SFOs could possibly rely on self-defence OR
o Unlikely that their failings amounted to gross negligence
Shooters felt justified because they feared for the lives of those on the train and their own.
Sources of Human Rights Law:
Council of Europe treaties: European Convention on Human Rights and Fundamental Freedoms
1950 (ECHR) – EctHR (court)
Council of Europe is NOT THE EU
The UK ratified the ECHR in 1951, allowed individual petition to the European Court of Human
Rights (ECtHR) in 1966
ECHR sets out a number of rights that the UK is obliged to protect in the creation and application of
law.
Human Rights Act 1998 – Allows individuals to rely directly on the ECHR in the UK courts
Other UK law relevant to human rights – EG: The Terrorism Acts; other European and international treaties
Law Commission Reports; Draft Criminal Code
EU law and its relevance?
Maastricht Treaty included criminal law as a matter of intergovernmental cooperation.
EG: cooperation on fighting terrorism, human trafficking, corruption and other organised crimes.
Evidence and procedure – EG: European Arrest Warrant
Lisbon Treaty: Art. 82
European Union:
EU was originally conceived as a trade and economic union; criminal law wasn’t within it
competencies.
EU has targeted offences that commonly involve a cross-border element preventing criminal groups
from taking advantage of the patchwork of legal inconsistencies across Europe.
HRA 1988:
S. 1 HRA incorporates ECHR rights into domestic law.
Allows citizens to rely on ECHR rights and liberties directly in UK courts
Individuals can apply to ECtHR once domestic remedies are exhausted
New legislation, including criminal law, requires a government minister to make a statement of
compatibility with the ECHR
State also has a positive obligation to protect citizens from infringement of rights by state and others
- E.g. through criminalizing infringements (e.g. hate crime)
There is an obligation on domestic courts to take account of ECHR rights when interpreting and
applying all area of law
Domestic courts at all levels must as far as is possible interpret domestic legislation to give effect to
ECHR rights
s4 HRA 1988 higher courts also have the power to issue a ‘declaration of incompatibility’ where
there is an inconsistency with ECHR rights and no obvious interpretive solution.
Article 2 – Right to Life:
Art 2 has affected the definition of homicide offences, abortion, euthanasia as well as leading to
conflict for self-defence.
- Self-defence/defence of another: use of reasonable force….
- Murder: the unlawful killing of a human being…
Cases: how it applies
- Jean Charles de Menezes and others killed by the state
