03-13 Human Rights_cebdf912110d2ee4bf68b30b6eb31dc8.pdf

OFFICIAL Unit 3 Lesson 13...

OFFICIAL Unit 3 Lesson 13 Human Rights Lesson Aim: The learner will be able to explain the implications of the Human Rights legislation on the police service Learning Outcomes: On successful completion of the lesson, Introduction students will be able to:- The European Convention on Human Rights, herein referred to as the Convention, was 1. Explain the history of European Convention established in 1953 in response to human on Human Rights (ECHR) and the rights violations committed during World War implications for the police service of the II. Human Rights Act 1998 The original member states of the Convention drew up a treaty which outlined fundamental 2. State the role of the European Court of rights and freedoms of individuals. Human Rights The UK played a major part in the drafting of 3. Explain the provisions of various ECHR the treaty. Therefore the broad principles reflect existing legislation in this country. Articles Article 2 - Right to Life Note:- In the operational environment, the Article 3 - Prohibition of Torture Convention may be referred to as the ‘ECHR’. Article 5 - Right to Liberty and Security This is not to be confused with the European Article 6 - Right to a Fair Trial Court of Human Rights. Article 8 - Right to Respect for Private and Family Life Article 14 - Prohibition of Discrimination 4. List the general principles pertaining to ECHR Articles 4, 7, 9, 10, 11, 12 5. Explain how to apply the tests of proportionality, legality, accountability, necessity and ethics before utilising any policing powers 1 th Amended 24 April 2024 OFFICIAL v.6  OFFICIAL Unit 3 Lesson 13 Human Rights Implications for the Police Service The European Convention on Human Rights is incorporated into Scots Law by the introduction of The Human Rights Act 1998, which ensures that ALL Public Authorities comply with Convention legislation. This became legally binding in October 2000. Inherent in the whole of the Convention is:- A search for the fair balance between the demands of the general interest of the community and the requirements of the protection of an individual's human rights Police Scotland is included within this definition of ‘Public Authority’ as well as the Crown Office and Procurator Fiscal Service (COPFS) and all domestic courts. Consequently there are many implications and guidelines to which you will have to adhere The Convention is made up of numerous Articles, some of which have been amended by what are known as protocols. Each article deals with a different topic and the contents outline the rights of all individuals within the member states. This lesson note summarises what you should be aware of in respect of Human Rights legislation. Activity 1 A1 What areas of Policing do you feel could cause particular concern in relation to the Human Rights Act 1998? 2 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 13 Human Rights The European Court of Human Rights The European Court of Human Rights (ECHR), has the task of ensuring that member states respect the rights and guarantees set out by the Convention. The ECHR sits in Strasbourg. Anyone in the UK can petition this court for a judgement but only if all domestic remedies have been exhausted. Decisions, i.e. case law, laid down by this Court may often mould and amend our own existing legislation to ensure that we are complying with Human Rights. Any new legislation introduced by the UK Government or the Scottish Parliament must be ECHR compliant. Activity 2 A2 In your group, create a short presentation and poster to present back to the class under the following articles:- Syndicate 1 - Article 2 - The Right to Life Syndicate 2 - Article 3 - Prohibition of Torture Syndicate 3 - Article 5 - Right to Liberty and Security Syndicate 4 - Article 6 - Right to a Fair Trial Syndicate 5 - Article 8 - Right to Respect for Private and Family Life Syndicate 6 - Article 14 - Prohibition of Discrimination. You Instructor will provide feedback within the class. 3 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 13 Human Rights Feedback 1 F1 You might have said:- Reporting and Recording Arrest and Detention Welfare and care of prisoners The reality is however, that almost everything you do, while carrying out your duties, will have to withstand the scrutiny of Human Rights. Article 2 - The Right to Life Everyone’s right to life shall be protected by law, and no one shall be deprived of his or her life intentionally. Deprivation of life shall not be regarded as a contravention of Article 2 when it results from the use of force which is no more than absolutely necessary:- A. In defence of any person from unlawful violence B. In order to effect a lawful arrest or to prevent the escape of a person lawfully detained C. In action lawfully taken for the purposes of quelling a riot or insurrection (violent uprising). Article 3 - Prohibition of Torture No one shall be subjected to torture or to inhuman or degrading treatment or punishment. This article has obvious relevance with regard to the treatment of prisoners and the conditions in which they are held, etc. Torture has been defined as “The deliberate inhuman treatment causing very serious and cruel suffering”. There must be a purpose behind the treatment (e.g. gain a confession) and it need not constitute physical suffering. Mock executions, threats of death or reprisals against family have been considered to be torture in the past. 4 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 13 Human Rights Conduct against a person without purpose or not severe enough to constitute torture may be considered to be “inhuman or degrading treatment or punishment”. The following actions have all been considered to be Article 3 breaches in this respect:- Use of noise to prevent sleep Overcrowding Inadequate heating Dripping of water on head Withholding food, water or medical treatment "Slopping out" (Prisoners having to manually clear out a vessel they have used as a toilet). Other, more obvious examples, which constitute inhuman or degrading treatment or punishment, include:- Electric shock treatment Pulling out hair Kicking of genitals Squeezing of head in a vice. The use of excessive force by police officers may well fall into this category as well as resulting in:- A criminal case being lost Damages being awarded Vicarious liability. Note:- Vicarious liability is where an individual (usually the head of an organisation) can be held accountable for actions of another, even though they took no actual part. In a practical sense, it must be borne in mind that any excessive use of force by the police can be held to be an Article 3 breach. 5 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 13 Human Rights It is imperative that we are able to fully justify keeping a person in custody. The Lord Advocate's guidelines provide that the presumption should always be in favour of release, and furthermore, must take all reasonable steps to ensure that the individual's well-being is given prime consideration. The officer authorising custody must give valid and reasonable grounds for the custody and review them on a regular basis. They can then be called to court to account for their reasoning. Article 5 - The Right to Liberty and Security 1. Everybody has the right to liberty and security of person. No one shall be deprived of their liberty apart from in the following circumstances and in accordance with the procedure prescribed by law:- A. The lawful detention of a person after conviction by a competent court, i.e. a prison sentence. B. The lawful arrest order of a court or in order to secure the fulfilment of any obligation prescribed by law, e.g. breach of bail, arrest warrant etc. C. The lawful arrest of a person affected for the purpose of bringing that person before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence, or fleeing after having done so, e.g. ‘normal’ arrests. 2. Everybody who is arrested shall be informed promptly, in a language which they understand, of the reasons for their arrest and of any charges against them. Article 5 also states that any person arrested and deprived of their liberty shall be entitled to take proceedings by which the lawfulness of their detention will be speedily decided by a court. Anyone found to be the victim of an arrest or detention which contravenes their human rights will have an enforceable right to compensation. 6 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 13 Human Rights Article 6 - Right to a Fair Trial This article attracts more allegations of breaches than any other in the Convention. Article 6 states that everybody is entitled to a fair and public hearing, within a reasonable time, by an independent and impartial tribunal established by law and shall be presumed innocent until proven guilty. It should be pointed out that the above applies to every step in the investigation process and not just court procedures themselves. Therefore, all police procedures and the conduct of the investigation, disclosure of information by the Crown, media attention etc. can come under scrutiny in court in respect of their compliance with Article 6. The methods used to obtain any evidence led in court will be subjected to scrutiny. If such evidence is considered to have been obtained in a manner which is ‘unfair’, then it may be deemed that the accused’s Article 6 right has been breached. This could result in no proceedings being taken by the Crown, sections of evidence being ruled inadmissible during the trial, the accused being found not guilty or any conviction gained being quashed on appeal. Care must be taken during all elements of criminal investigation such as search, craving/executing warrants, interviewing etc. to ensure that the tests of proportionality, legality, accountability, necessity and ethics are rigorously applied. In addition, recording the justification of actions taken in notebooks or mobile device and other documents must be comprehensive in order to refute any allegations made of Article 6 breaches. All relevant material obtained or generated during the course of a criminal investigation must be disclosed to the Procurator Fiscal and be of the highest possible quality. This includes, but is not restricted to, Standard Prosecution Reports (SPR’s), all statements and productions. Where a Constable has reason to believe that a person aged 16 years or over, who is not subject of a supervision order, has committed a certain crime or offence, the Constable may deal with it by way of a Fixed Penalty Notice (FPN) or a Recorded Police Warning (RPW). For a list of relevant offences refer to the Direct Measures lesson note. This does not preclude the suspect's right to a fair trial. If the suspect does not accept either of these measures, the matter may be referred to the Procurator Fiscal. 7 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 13 Human Rights Note:- The most significant recent changes to criminal procedure and hence police procedures in Scotland came about as a result of a Human Rights challenge brought by Peter Cadder, who challenged having been interviewed without a solicitor present. From Cadder v HMA (2010) it was decided all persons taken into custody have the right to a consultation with a solicitor prior to being interviewed by the police. Article 8 - Right to Respect for Private and Family Life 1. Everybody has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right; except such as is in accordance with the law, and is necessary in a democratic society in the interest of:- A. National security B. Public safety or the economic well-being of the country C. For the prevention of disorder or crime D. For the protection of health or morals E. For the protection of the rights and freedoms of others Article 8 does not prevent the police (or other public authority) from taking courses of action which may infringe upon an individual's private life, e.g. surveillance, arrest/search warrants etc. It does, however, create appropriate safeguards and puts the burden on the state to justify such interventions for good public purpose. Article 14 - Prohibition of Discrimination The enjoyment of the right and freedoms as set forth in this Convention (i.e. all other Articles) shall be secured without discrimination on any ground 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. The European Court of Human Rights has accepted that Article 14 covers discrimination practised because someone is illegitimate, unmarried, a prisoner or by virtue of their sexuality. It is also likely that the courts will accept that it also covers discriminating against someone because they have a disability. 8 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 13 Human Rights Article 14 does not give a general right against discrimination. The Article can only be used in conjunction with another Article of the Convention, e.g. men who have been widowed have used Article 14 - together with Protocol 1 (enjoyment of possessions) and Article 1 (protection of property rights) - to argue that benefits which were paid to women when their husbands died should also be paid to men when their wives have died. Even where a person can show that they have been discriminated against and that the area in which they have been discriminated against comes within the scope of another article, it is still possible for the Government or public authority to argue that the discrimination is justified. To do this they must show that there is an objective and justifiable reason for treating him or her differently and that the difference in treatment is proportionate to that reason, i.e. no more than is necessary. General Principles of Articles 4, 7, 9, 10, 11, 12 There are many more Articles written into the legislation. The following are selected examples:- Article 4 - Prohibition of slavery and forced labour Article 7 - No punishment without law Article 9 - Freedom of thought, conscience and religion Article 10 - Freedom of expression Article 11 - Freedom of assembly and association Article 12 - Right to marry 9 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 13 Human Rights Protocols The provisions set by the Convention have subsequently been added or amended through protocols. Some protocols relevant to policing are:- Protocol 1 The first protocol states that “every person is entitled to the peaceful enjoyment of his possessions except in the public interest and subject to the conditions provided for by the law”. This has obvious relevance with regard to the seizure of property and productions etc. Generally speaking, the powers of the police in this respect will remain much the same provided all actions are justified and are in the public interest. Protocol 6 The sixth Protocol simply states "The death penalty shall be abolished. No one shall be condemned to such penalty or execution". Note:- Provisions are included for States to introduce the death penalty during times of war, subject to certain conditions. Practical Considerations Before exercising any powers, Police Officers should consider the following 5 areas:- Proportionate Legal Accountable Necessary Ethical 10 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 13 Human Rights The PLANE Test Proportionate What course of action do I intend to take? For example, warning only, report for summons, arrest (does arrest involve the use of force?) Is this course of action proportionate to the circumstances? (Am I ‘using a sledgehammer to crack a nut’, i.e. can the same outcome be achieved by different means?) Once you have decided the course of action you feel is proportionate then consider legality. Legal Do I have a legal power either in statute or at Common Law to take this course of action? If the answer to any of the foregoing questions is "No" then your actions may be likely to breach Convention Rights. If on the other hand you believe the foregoing tests have been satisfied, then you should proceed with the course of action. Accountable Am I able to justify why I chose a particular course of action and give a clear, chronological account of why I have taken this particular course of action? Necessary When faced with an incident ask yourself these questions. Given the circumstances, do I need to take a course of action to resolve this matter? Is some form of police action necessary in order to prevent crime or disorder, protect life or preserve national security? If the answer is ‘Yes’ then consider the ethics around this. Ethical What would the public/Service expect of me and do my actions follow the services Code of Ethics of integrity, fairness, respect and human rights? 11 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 13 Human Rights In addition to applying the tests of PLANE you should also ensure that:- Notebooks/mobile devices are used extensively to record courses of action and fully justify your decisions to take them The law, Police Scotland procedures and Lord Advocate's Guidelines are strictly adhered to Fairness and impartiality are foremost in all dealings with the public Emphasis is placed on a duty of care towards all prisoners/ detainees Police reports and statements are comprehensive, accurate and submitted timeously All relevant material obtained or disclosed during the course of a criminal investigation is revealed to COPFS. Professional Standards PS Be methodical and note, not only details of the incident, but also the reason(s) for the action you subsequently take. By doing so, you should be able to demonstrate proportionality, legality, accountability, necessity and ethics. 12 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 13 Human Rights For further information, use the resources shown below:- Legal Database:- Criminal Law - Miscellaneous - Acts - Human Rights Act 1998 Police Intranet - Human Rights SOP European Court of Human Rights - https://www.echr.coe.int Review: You can explain the history of ECHR and the implications for the police service of the Human Rights Act 1998 You can state the role of the European Court of Human Rights You can explain the provisions of various ECHR Article's Article 2 - Right to Life Article 3 - Prohibition of Torture Article 5 - Right to Liberty and Security Article 6 - Right to a Fair Trial Article 8 - Right to Respect for Private and Family Life Article 14 - Prohibition of Discrimination You can list the general principles pertaining to ECHR Articles 4, 7, 9, 10, 11, 12 You can explain how to apply the tests of proportionality, legality accountability, necessity and ethics before utilising any policing powers 13 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL  OFFICIAL Unit 3 Lesson 13 Human Rights Learning Log: How will what you have learned in this module impact your day-to- day role? Are there any skills or knowledge you would like to develop further following this module? End of Module 14 Scots Criminal Law: Police Powers and Principles of Evidence OFFICIAL