< LAW.310 : Human Rights and Civil Liberties

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LAW.310 : Human Rights and Civil Liberties

Year:13/14
Department:Law
Level:Part II (any yr)
Learning Hours:150
Credit Points:15
Weight:0.5
Course Convenor:Dr AA Fijalkowski
Status:Live

Assessment Rules

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  • 0% Dissertation, Optional, Default
  • 50% Exam
  • 50% Coursework

CMod description

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LAW. 310: Civil Liberties and Human Rights (half-unit)

 

This course studies the legal protection of civil liberties and human rights in the United Kingdom, in the European context. It is concerned with the powers that the state often seeks to protect individuals, interest groups and even the state itself. However, individuals and interest groups often object that the exercise of such powers does not respect their understanding of their freedoms and rights.

 

The course adopts a critical and contextual approach to the subject of civil liberties and human rights. It explores the theoretical foundations for the existence of freedoms and rights; the legal mechanisms through which freedoms and rights are secured and protected; and the justifiable limitations on freedoms and rights. It examines the legal protection offered by domestic law, the European Convention on Human Rights, and, where appropriate, European Community Law. Specific topics which will be discussed such as the right to privacy, freedom of expression, the right to life and the exercise of police powers.

 

 

Curriculum Design: Outline Syllabus

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OUTLINE OF THE COURSE

Week 1 ? COURSE INTRODUCTION

Lord Woolf has said that the concern of the Human Rights Act is not so much rights in the common law sense, but values. These values are what are recognised around the world and are at the core of the rule of law. This week will be devoted to the identification and protection of rights and liberties under the European Convention on Human Rights and under the new regime adopted by the United Kingdom under the Human Rights Act 1998.

Required reading:

  • U. Baxi, The Future of Human Rights (Oxford: Oxford University Press, 2002), pp. 42-66, 67-76
  • H. Fenwick, Civil Liberties, 2nd edn. (London: Cavendish, 2002), pp. 93-132, 133-196
  • R. Stone, Textbook on Civil Liberties and Human Rights, 5th edn. (Oxford University Press, 2004) pp. 1-41
  • N. Walker, ?Setting English Judges to Rights', Oxford Journal of Legal Studies, 19 (1999), pp. 133-151 
  • See Lord Hoffman's remarks in R. v. Secretary of State for Home Department, ex parte Simms [2000] 2 AC 115
  • See J. Straw and P. Boateng, Bringing Rights Home (Labour Party, 1996), reprinted  [1997] European Human Rights Law Review 71; White Paper outlining the details of the HRA and the intentions of the Labour Party, Cm. 3782 (1997)
 
Suggested reading:
  • R.A. Edwards, ?Reading Down Legislation under the Human Rights Act', Legal Studies, 20 (2000), pp. 353-371
  • D. Feldman, ?The Human Rights Act 1998 and Constitutional Principles', Legal Studies, 19 (1999), pp. 165-206
  • C.A. Gearty, ?The European Court of Human Rights and the Protection of Civil Liberties: An Overview', Cambridge Law Journal, 52 (1993), pp. 89-127
  • A. Phillips, Which Equalities Matter? (Malden, MA: Polity Press, 1999)
  • D. Sugarman, ?A Hatred of Disorder: Legal Science, Liberalism and Imperialism', in P. Fitzpatrick, ed., Dangerous Supplements: Resistance and Renewal in Jurisprudence (London: Pluto Press, 1991), pp. 34-67
  • A. Tomkins, ?Inventing Human Rights Law and Scholarship', Oxford Journal of Legal Studies, 16 (1996), pp. 153-160
  • M. Zander, A Bill of Rights?, 4th edn. (London: Sweet and Maxwell, 1997)

RELEVANT CASES PRE-HUMAN RIGHTS ACT 1998 (INDICATIVE LIST)

  • Waddington v. Miah [1974] I WLR 683 In Birdi v. Secretary of State for Home Affairs [1975] 61 ILR 250
  •  R. v. Secretary of State for Home Affairs, ex parte Bhajan Singh [1975] 3 WLR 225
  • R. v. Secretary of State for Home Affairs, ex parte Phansopkar and R. v. Secretary of State for the Home Department, ex parte Begum [1975] 3 All ER 497
  • Ahmed v. Inner London Education Authority [1978] 1 All ER
  • R. v. Deery [1977] 20 Yearbook, 827-31
  • Gleaves v. Deakin & Others [1979] 2 All ER 497
  • A-G v. Guardian Newspapers (No. 2) (Spycatcher Interlocutory Stage) [1990] Appeal Cases 109, [1988] 3 All ER 545
  • R. v. Secretary of State for Home Affairs, ex parte Brind [1991] 1 AC 696, [1991] 2 WLR 588
  • Derbyshire CC v. Times Newspapers [1993] AC 534, [1993] 1 All ER 1011, HL
  • R. v. Ministry of Defence, ex parte Smith [1996] QB 517
  • R. v. Secretary of State for the Home Dept., ex parte Canbolet [1997] 1 WLR 1569 
  • R. v. Lord Chancellor (ex parte Witham) [1998] QB 575, DC
  • R. v. Saville and others (Bloody Sunday anonymity) [1999] 4 All ER 860, [2000] 1 WLR 1885

Week 2 ? PROTECTING RIGHTS AND LIBERTIES UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS AND THE REGIME UNDER HUMAN RIGHTS ACT 1998

We will continue our discussion from last week and explore the differences between rights, liberties, human rights, and civil liberties. We will try to construct a personal framework to refer to and to work with when looking at specific rights during the remainder of the course. Visiting the work of key scholars in the area, the notion of personal autonomy will be considered, and whether we have a right to create and adopt our own conception of the good. This notion is linked to our moral being, but is it more worthy or less worthy when compared to others?

Required reading:

Baxi,, pp. 1-23, 24-41

  • T. Campbell, ?Human Rights: A Culture of Controversy', Journal of Law and Society, 26 (1999), pp. 6-26
  • K.D. Ewing and C.A. Gearty, The Struggle for Civil Liberties: Political Freedom and the Rule of Law in Britain, 1914-1945 (Oxford: Oxford University Press, 2000), pp. 1-35
  • Feldman, pp. 3-33, 34-112
  • Fenwick, pp. 3-15
  • R. Dworkin, Taking Rights Seriously (London: Duckworth, 1977), 184-205

Suggested reading:

  • S. Engle Merry, ?Global Human Rights and Local Social Movements in a Legally Plural World', Canadian Journal of Law and Society, 12 (1997), pp. 247-271
  • J. Fudge, ?What Do We Mean By Law and Social Transformation?', Canadian Journal of Law and Society, 5 (1990), pp. 47-69
  • D. Herman, ?Beyond the Rights Debate', Social and Legal Studies, 2 (1993), pp. 25-43
  • Noel Whitty, Thèrése Murphy, and Stephen Livingstone, Civil Liberties Law: The Human Rights Act Era (London: Butterworths, 2001), pp. 1-56

 

WEEK 3

SEMINAR 1

Required reading:

Please ensure that you have read the readings from Weeks 1 and 2.

  • M. Addo and N. Grief, ?Is there a Policy behind the Decisions and Judgments relating to Article 3 of the ECHR?', ELR, 20 (1995), pp. 178-193
  • A.W. Bradley, ?Inhuman or Degrading Punishment? Judicial Whipping in Zimbabwe', Public Law, (1991), pp. 481-484
  • M. Evans and R. Morgan, ?The European Convention for the Prevention of Torture: Operational Practice', International and Comparative Law Quarterly, 41 (1992), pp. 590-614
  • Feldman, pp. 243-272
  • J. Fortin, Children's Rights and the Developing Law (London: Butterworths, 1998), pp. 228-234
  • A v. United Kingdom (1998) 27 EHRR 611
  • Tyrer v. United Kingdom (1978) 2 EHRR 1

Read the two cases. You will be expected to summarise the main issues. Consider the following questions:

  1. How are these two cases similar?
  2. How are these two cases different?
  3. Why is Article 3 of the European Convention on Human Rights a non-derogable right?
  4. How has the European Court of Human Rights defined ?inhuman and degrading treatment'? Refer to relevant case law.
  5. Has the European Court of Human Rights been consistent in its application of the definition? Explain why or why not.
  6. Do either of the cases reflect a (global or international trend)? Support with examples. Also, consider the relevance of other international treaties.
  7. What has this trend meant for courts?
  8. In both cases, do any issues arise with respect to children?
  9. Looking at the case law of the European Court, what issues arise with respect to parental authority?
  10. In your view, is this a positive trend?
  11. Both cases concern corporal punishment in the United Kingdom. Consider corporal punishment and its place in a particular culture. What does the majority in Tyrer have to say about this point?
  12. What obligations does the UK government have to protect a person against the risk of being treated in an inhuman or degrading way by state organ? By another individual? By another state?

Suggested reading:

G Van Bueren, The International Law on the Rights of the Child (The Hague: Martinus Nijhoff, 1998), pp. 88-90

Weeks 3 and 4 ? FREEDOM OF EXPRESSION

The next two weeks will be devoted to the freedom of expression. This freedom comprises several important and complex aspects, namely, media freedom, protection of the security of the state, blasphemy, obscenity, and indecency, and contempt of court. As Whitty et al. points out, "[the freedom of expression] is about the things that help make liberalism ?that which we cannot not want'." Yet it also signals that the protection of the freedom of expression is about two difficult ?goods' and the tension that reflects their relationship.

In exploring the various aspects of the freedom of expression, we will attempt to answer the following questions:

  • What does Article 10 of the European Convention on Human Rights protect?
  • Is it a blanket provision? Does it omit any key references?
  • How does this Article differ from the provisions provided for in the American First Amendment and the 1982 Canadian Charter of Rights and Freedoms?

Required reading:

  • J. Bridgeman and S. Millns, Feminist Perspectives on Law (London: Sweet and Maxwell, 1998), pp. 501-544
  • S.S.M. Edwards, Sex and Gender in the Legal Process (London: Blackstone, 1996), pp. 90-141
  • Feldman, pp. 751-801, 801-862, 863-903, 904-955, 956-1007 OR
  • Fenwick, pp. 199-214, 215-266, 267-331, 333-395
  • Mark Janis, Richard Kay, and Anthony Bradley, European Human Rights Law, 2nd edn.(Oxford: Oxford University Press, 2000), pp. 140-164
  • C. Itzin, ed., Pornography: Women, Violence and Civil Liberties (Oxford: Oxford University Press, 1992)
  • I. Loveland, ?A Free Trade in Ideas ? and Outcomes', in I. Loveland, ed., Importing the First Amendment (Oxford: Hart, 1998), pp. 1-21
  • C. McCrudden, ?The Impact on Freedom of Speech', in B.S. Markesinis, ed., The Impact of the Human Rights Bill on English Law (Oxford: Oxford University Press, 1998), pp. 85-109
  • J.S. Mill, On Liberty (Harmondsworth: Penguin, 1988) (originally published in 1859)

Suggested reading:

  • J. Beatson and Y. Cripps, eds., Freedom of Expression and Freedom of Information: Essays in Honour of Sir David Williams (Oxford: Oxford University Press, 2000)
  • S. Coliver, ed., Striking a Balance: Hate Speech, Freedom of Expression and Non-Discrimination (Human Rights Centre, University of Essex, 1992)
  • Andrea Dworkin, Pornography: Men Possessing Women (London: The Women's Press, 1981)
  • R. Dworkin, ?Is There a Right to Pornography?', Oxford Journal of Legal Studies, 1 (1981), pp. 177-
  • D. Herman, ?Beyond the Rights Debate', Social and Legal Studies, 2 (1993), pp. 25-43
  • -------------, ?The Good, the Bad, and the Smugly: Perspectives on the Canadian Charter of Rights and Freedoms', Oxford Journal of Legal Studies, 14 (1994), pp. 589-694
  • M. Hunt, Using Human Rights in English Courts (Oxford: Hart, 1997)
  • I. Loveland, ed., Importing the First Amendment (Oxford: Hart, 1998)
  • R. Scott, ?Confidentiality', in J. Beatson and Y. Cripps, eds., Freedom of Expression and Freedom of Information: Essays in Honour of Sir David Williams (Oxford: Oxford University Press, 2000), pp. 267-274
  • Carol Smart, Feminism and the Power of Law (London: Routledge, 1989), pp. 114-137
  • Stone, pp. 199-246, 247-283, 284-326
  • Whitty et al., pp. 279-328 (privacy), 329-376 (secret state), 377-434 (expression and equality)

RELEVANT CASES (INDICATIVE LIST)

UNITED KINGDOM

  • A v B and C [2002] 3 WLR 542, [2002] 2 All ER 545
  • A-G v. Guardian Newspapers Ltd (No 2) [1988] 3 All ER 545
  • Campbell v Mirror Group Newspapers [2003] 2 WLR 80, [2003] 1 All ER 224
  • Conegate Ltd v. Customs and Excise Comrs, Case 121/85, [1986] 2 All ER 688, ECJ
  • Derbyshire v. Times Newspapers [1993] AC 534, [1993]1 All ER 1011, [1992] 3 WLR 28, HL
  • Douglas and Zeta-Jones  v. Hello! Ltd. [2000] 2000 WL 1841643, CA
  • Knupffer v. London Express Newspaper Ltd. [1942] 2 All ER 555
  • Observer Publications v.  Matthew [2001] UKPC 11
  • R v. Bow Street Magistrates, ex p Noncyo [1990] 1 QB 123, CA
  • R v. Central Criminal Court, ex p Bright [2001] 2 All ER 244
  • R v. Hicklin [1868] LR 3 QB 360
  • R v. Video Appeals Committee of the BBFC, ex p BBFC [2000] EMLR 850
  • Rantzen v. Mirror Group Newspapers [1993] 4 All ER 975, CA
  • Redmond-Bate v. DPP [1999] Crim LR 998
  • Reynolds v. Times Newspapers [1999] 4 All ER 609, HL
  • John v. Mirror Group Newspapers [1996] 2 All ER 35, CA
  • Secretary of State for the Home Dept ex p Brind [1991] 1 AC 696; [1991] 1 All ER 720; [1991] 2 WLR 588, HL

ECHR

  • Goodwin v. United Kingdom (1996) 22 EHRR 123
  • Handyside v. United Kingdom, judgement of 7 December 1976 (No. 24), 1 EHRR 737
  • Kuhnen v. Germany (1988) 56 DR 205
  • Jersild v. Denmark, judgement of 23 September 1994, 19 EHRR 1
  • Lingens v. Austria, judgement of 8 July 1986 (No. 103), 8 EHRR 40
  • Observer and Guardian v. United Kingdom judgement of 26 November 1991 (No. 216), 14 EHRR 153 (Spycatcher case)
  • Sander v. United Kingdom (2000) Crim LR 767
  • Tolstoy Miloslavsky v. United Kingdom (1995) 20 EHRR 442

UNITED STATES

  • Abrams v. United States, 250 US 616, 630 (1919) (See dissenting opinion of Justice Holmes)
  • Brandenburg v. Ohio 395 US 444 (1969)
  • Cohen v. California 403 US 15 (1971)
  • Texas v. Johnson 109 S. Ct. 2533 (1989)
  • R.A.V. v. City of St Paul, Minnesota 112 S. Ct. 2538, 120 Ed. 2d 305 (1992)
  • Whitney v. California, 274 US 357, 375-6 (1927) (See concurring opinion of Justice Brandeis)

CANADA

  • R v. Butler [1992] 1 SCR 452
  • R v. Sharpe [2001] 1 SCR 245
  • R v. Keegstra [1990] 3 SCR 697

Recommended visits:

Archive of ACLU (http://archive.aclu.org/, under 'issues: free speech')

 

WEEK 5

SEMINAR 2 (Freedom of expression)

 This week's seminar continues the examination of the freedom of expression, with a particular look at justifications for restraining the freedom of expression.

Please read the following cases, as they will serve as a central point in our discussion:

Additional required reading:

  • Fenwick, pp. 267-331
  • Stone, pp. 299-327
  • Mills v LCC [1925] 1 KB 213 R v Greater London Council, ex parte Blackburn [1976] 1 WLR 550

Suggested reading:

  • Handyside v United Kingdom [[1976] 1 EHRR 737
  • Müller v Switzerland [1991] 13 EHRR 212
  • Oberschlink v Austria [1991] 19 EHRR 389
  • DPP v A & BC Chewing Gum Ltd [1968] 1 QB 159
  • DPP v Whyte [1972] AC 649
  • John Calder Publications Ltd v Powell [1965] 1 QB 509
  • Knuller (Publishing, Printing and Promotions) Ltd v DPP [1973] AC 435
  • R v Calder and Boyars [1969] 1 QB 151
  • R v Hetherington [1840] St Tr (NS) 563
  • R v Hicklin [1868] LR 3 QB 360
  • R v Lemon [1979] AC 617
  • R v Penguin Books [1961] Crim LR 176
  • R v Perrin [2002] EWCA Crim 747
  • R v Skirving [1985] QB 819
  • R v Video Appeals Committee of the BBFC, ex parte BBFC, The Times [2000], 7 June 2000
  • Shaw v DPP [1962] AC 220
  • Law Commission Report No145, Offences Against Religion and Public Worship 1979 Report of the Committee on Obscenity and Film Censorship (Cmnd 7772)

Questions to consider:

1.      What is the stance of Strasbourg case law with respect to blasphemy?

2.      How far has the European Court of Human Rights gone to consider ?rights of others' exception in Article 10(2)?

3.      When, if at all, should artistic freedom be limited? Does it depend on the form of expression?

4.      If we consider the Otto-Preminger and Wingrove cases, has the Court demonstrated a more ?sensitive' or ?wider' understanding of protecting speech and / or expression?

5.      ?Any system of control needs to define to some extent the behaviour to be restricted'. How is ?obscene' defined in English law? How is ?indecent' defined in English law?

6.      Is English law relating to the control of obscenity and indecency clear? Why or why not?

7.      Has the Human Rights Act brought about reform of blasphemy law in the UK?

 

Weeks 5 and 6 ? RIGHT TO LIFE

The sessions on the right to life will be delivered by Dr James Summers.

Article 2 provides a non-derogable protection of the right to life. This right can be viewed as the most fundamental of all human rights. But there are some surprises as concerns the identification and protection of this right. The right to life will be considered in different contexts, such as capital punishment, abortion, and the use of lethal force.

Required reading:

  • Feldman, pp. 179-240
  • Fenwick, pp. 38-43
  • Janis et al., pp. 134-137

Suggested reading:

  • J.L. Black-Branch, ?Being over Nothingness: the Right to Life under the Human Rights Act', European Law Review, 26 (2001), pp. 22-28
  • R. Dworkin, Life's Dominion: An Argument about Abortion and Euthanasia (London: HarperCollins, 1993)
  • C. Gearty, ?Unravelling Osman', Modern Law Review, 64 (2001), pp. 159-190
  • G. Hogan and C. Walker, Political Violence and the Law in Ireland (Manchester: Manchester University Press, 1989), pp. 64-69
  • G. Northam, Shooting in the Dark: Riot Police in Britain (London: Faber and Faber, 1988)
  • R.J. Spjut, ?The "Official" Use of Deadly Force by the Security Forces Against Suspected Terrorists', Public Law, (1986), pp. 38-66
  • D. Tausz and J.C. Smith, Criminal Law Review, (2001), pp. 400-401

RELEVANT CASES (INDICATIVE LIST)

UNITED KINGDOM

  • A (Children) (Conjoined Twins: Medical Treatment) (No 1) [2001] 2 WLR 480 (CA)
  • Airdale NHS Trust v. Bland [1993] 2 WLR 316; [1993] 1 All ER 821, HL
  • Attorney General v. Able [1984] 1 All ER 277
  • B (A Minor)(Wardship: Medical Treatment) [1981] 1 WLR 1421, [1990] 3 All ER 927, CA
  • C (A Minor) (Wardship: Medical Treatment) [1990] Fam. 26, [1989] 2 All ER 782
  • Farrell v. Secretary of State for Defence [1980] 1 All ER 1667, HL
  • J (A Minor) (Wardship: Medical Treatment) [1991] Fam. 33, [1990] 3 All ER 930, CA
  • Kelly v. Kelly [1997] SC 285
  • Lewis v. Attorney-General for Jamaica [2000] 3 WLR 1785, PC
  • Osman v. Ferguson [1993] 4 All ER 344, CA
  • Portsmouth NHS Trust v. Wyatt and Ors[2004] EWHC 2247, Fam.
  • Pratt v. Attorney-General for Jamaica [1994] 2 AC 1, PC
  • S (Adult: Refusal of Medical Treatment) [1993] Fam. 123, [1992] 4 All ER 671
  • R v. Clegg [1995] 1 All ER 334
  • R v. DPP, ex p Diane Pretty [2002] 1 AC 800
  • R v. DPP, ex p Manning [2000] 3 WLR 463, DC

IRELAND

Attorney-General v. X [1992] 1IR 1, 17, SC

ECHR

  • Andronicou v. Cyprus, judgement of 9 October 1997, 1997-VI, 2059, 25 EHRR 491
  • LCB v. United Kingdom, judgement of 9 June 1998, 27 EHRR 212
  • McCann, Farrell and Savage v. United Kingdom (1995) 21 EHRR 97
  • Open Door Counselling Ltd and Dublin Well Woman Centre Ltd. v. Ireland, Eur. Ct. HR, Series A, No. 246-A, judgement of 29 October 1992, 15 EHRR 244
  • Osman v. United Kingdom (1998) 29 EHRR 245
  • Soering v. United Kingdom, judgement of 7 July 1989, 11 EHRR 439
  • Widner v. Switzerland, App. No. 9348/91, 32 DR 190 (1993), Eur. Comm. HR
  • X v. Ireland (6040/73) CD 44, 121 Eur. Comm. HR

CANADA

Rodriguez v. Attorney General of British Columbia [1993] 3 SCR 519

 

 

WEEK 7

SEMINAR 3 (Right to life)

 

Required reading:

 

Re A (Children) (Conjoined Twins: Medical Treatment) (No 1) [2001] 4 WLR 480; 4 All ER 961

Portsmouth NHS Trust v. Derek Wyatt and Charlotte Wyatt [2004] EWHC 2247

R. (on the application of Diane Pretty) v. DP and Secretary of State for the Home Department [2001] UKHL 61

Rodriguez v. Attorney General of British Columbia [1993] 3 SCR 519, Supreme Court of Canada

 

Contrast the two general commentaries on the Re A decision:

 

?These are questions of law, not of morals or ethics. Exceptionally, the court allowed the Archbishop of Westminster and the Pro-Life Alliance, who opposed the operation, to make written submissions. The vital issue for the doctors, however, was not what the Archbishop or anyone else might think about the ethics or morality of what should be done, but what the law, and particularly the criminal law, would say. The question was one which could be decided only by a court.' (D. Tausz and J.C. Smith, ?Surgical Separation - Whether Surgical Separation of Conjoined Twins that Would Lead to Death of Non-viable Twin Lawful', Criminal Law Review, (2001), pp. 400-405)

 

?No human rights lawyer could have scripted the scene better as a backdrop to the introduction of the Human Rights Act in [the UK]. The Court of Appeal was faced with a conjoined twins case on the eve of the adoption of the European Convention on Human Rights into domestic law. It involved, inter alia, the right to life; protection from torture, inhuman and degrading treatment and punishment; the right to privacy and family life; and the right to freedom of religion. The case involved competing morals and values effectively pitting the interests of the parents against the medical establishment; the interests of the Roman Catholic Church against the state, and indeed the interests of one sister against her identical conjoined twin. Few cases encapsulate so definitively the broad array of issues which courts must assess in this new rights era. Few cases depict so aptly the complex series of conflicting societal values and competing individual needs within contemporary society. Few cases demonstrate so well the need for judicial exploration of rights issues in [the UK]?But for the most part there is very little discussion of human rights, per se.' (J.L. Black-Branch, ?Being over Nothingness: the Right to Life under the Human Rights Act', 26 European Law Review (2001), pp. 22-28, (26 Supp Human Rights Survey))

 

 

Questions to consider:

  1. Why did the Court of Appeal (in Re A) not adopt human rights reasoning to determine the outcome of the case?
  2. Should the right to life in Article 2(1) not have been construed to offer legal protection to both twins?
  3. What is your response to Black-Branch's criticism of the Court of Appeal's approach and its preference for utilitarian arguments over human rights based reasoning?
  4. In contrast the Re A, does the court reasoning in the Pretty case give greater weight to the values underpinning Article 2?
  5. Compare the courts' reasoning in the Pretty and Rodriguez cases.
  6. How does the court go about determining what Baby Charlotte's best interests are? Has the court's reasoning changed since Re A?

 

Required reading:

Feldman, pp. 179-240

Fenwick, pp. 38-43

Janis et al., pp. 134-137

 

Suggested reading:

R. Dworkin, Life's Dominion: An Argument about Abortion and Euthanasia (London: HarperCollins, 1993)

C. Gearty, ?Unravelling Osman', Modern Law Review, 64 (2001), pp. 159-190

G. Hogan and C. Walker, Political Violence and the Law in Ireland (Manchester: Manchester University Press, 1989), pp. 64-69

S. Michalowski, ?Sanctity of Life - Are Some Lives More Sacred than Others?', 22, (2002), Legal Studies, pp. 377-397

G. Northam, Shooting in the Dark: Riot Police in Britain (London: Faber and Faber, 1988)

R.J. Spjut, ?The "Official" Use of Deadly Force by the Security Forces Against Suspected Terrorists', Public Law, (1986), pp. 38-66

 

RELEVANT CASES (INDICATIVE LIST)

 

UNITED KINGDOM

A (Children) (Conjoined Twins: Medical Treatment) (No 1) [2001] 2 WLR 480 (CA)

Airdale NHS Trust v. Bland [1993] 2 WLR 316; [1993] 1 All ER 821, HL

Attorney General v. Able [1984] 1 All ER 277

B (A Minor)(Wardship: Medical Treatment) [1981] 1 WLR 1421, [1990] 3 All ER 927, CA

C (A Minor) (Wardship: Medical Treatment) [1990] Fam. 26, [1989] 2 All ER 782

Farrell v. Secretary of State for Defence [1980] 1 All ER 1667, HL

J (A Minor) (Wardship: Medical Treatment) [1991] Fam. 33, [1990] 3 All ER 930, CA

Kelly v. Kelly [1997] SC 285

Lewis v. Attorney-General for Jamaica [2000] 3 WLR 1785, PC

Osman v. Ferguson [1993] 4 All ER 344, CA

Portsmouth NHS Trust v. Wyatt and Ors[2004] EWHC 2247, Fam.

Pratt v. Attorney-General for Jamaica [1994] 2 AC 1, PC

S (Adult: Refusal of Medical Treatment) [1993] Fam. 123, [1992] 4 All ER 671

R v. Clegg [1995] 1 All ER 334

R v. DPP, ex p Diane Pretty [2002] 1 AC 800

R v. DPP, ex p Manning [2000] 3 WLR 463, DC

 

IRELAND

Attorney-General v. X [1992] 1IR 1, 17, SC

 

ECHR

Andronicou v. Cyprus, judgement of 9 October 1997, 1997-VI, 2059, 25 EHRR 491

LCB v. United Kingdom, judgement of 9 June 1998, 27 EHRR 212

McCann, Farrell and Savage v. United Kingdom (1995) 21 EHRR 97

Open Door Counselling Ltd and Dublin Well Woman Centre Ltd. v. Ireland, Eur. Ct. HR, Series A, No. 246-A, judgement of 29 October 1992, 15 EHRR 244

Osman v. United Kingdom (1998) 29 EHRR 245

Soering v. United Kingdom, judgement of 7 July 1989, 11 EHRR 439

Widner v. Switzerland, App. No. 9348/91, 32 DR 190 (1993), Eur. Comm. HR

X v. Ireland (6040/73) CD 44, 121 Eur. Comm. HR

 

CANADA

Rodriguez v. Attorney General of British Columbia [1993] 3 SCR 519

 

 

Weeks 7 and 8 ? POLICE POWERS

When reflecting on the notion of personal liberty in the UK in the 1980s, Ronald Dworkin concluded that liberty ?is ill in Britain'. Many scholars raised this point with regards to the scope of police powers that was extended. Weeks 7 and 8 will examine the scope of police powers in modern-day Britain, namely by exploring police stop/search/arrest, detention and questioning, and interrogation powers, which fall under the Police and Criminal Evidence Act 1984 and the Codes of Practice. We will see how our personal liberty, as found under Article 5 of the European Convention on Human Rights, is defined and protected, and how this overlaps with other Convention rights in the case law.

Required reading:

  • I. Bryan, Interrogation and Confession: A Study of Progress, Process and Practice (Dartmouth: Ashgate, 1997), pp. 63-81, 83-104, 253-281
  • J. Cherryman and R. Bull, ?Reflections on Investigative Interviewing', in Frank Leisham, Barry Loveday and Stephen P. Savage, eds., Core Issues in Policing, 2nd edn. (Harlow: Pearson, 2000), pp. 194-210
  • Feldman, pp. 302-417
  • Fenwick, pp. 751-864
  • I. McKenzie, ?Policing Force: Rules, Hierarchies and Consequences', in Frank Leisham, Barry Loveday and Stephen P. Savage, eds., Core Issues in Policing, 2nd edn. (Harlow: Pearson, 2000), pp. 176-193
  • Stone, pp. 42-81, 82-145

Suggested reading: 

  • P.A.J. Waddington, ?Public Order Policing: Citizenship and Moral Ambiguity' in Frank Leisham, Barry Loveday and Stephen P. Savage, eds., Core Issues in Policing, 2nd edn. (Harlow: Pearson, 2000), pp. 156-175
  • Whitty et al., pp. 57-102 (public order and reality)
  • T. Williamson, ?Policing: the changing criminal justice context ? twenty-five years of missed opportunities', in Frank Leisham, Barry Loveday and Stephen P. Savage, eds., Core Issues in Policing, 2nd edn. (Harlow: Pearson, 2000), pp. 9-29

RELEVANT CASES (INDICATIVE LIST)

STOP AND SEARCH

United Kingdom

  • Black v. DPP [1995]
  • Collins v. Wilcock [1984] 3 All ER 374

ECHR

  • Brogan v. United Kingdom [1989] 11 EHRR 117
  • Fox, Campbell and Hartley v. United Kingdom [1990] 13 EHRR 157
  • Guzzardi v. Italy [1980] 3 EHRR 333

Please note the MacPherson Report on the Stephen Lawrence Inquiry (1999) where stop and search powers were criticised on the grounds that they seemed to be used disproportionately in relation to certain groups, namely young black males.

For discussion following the Inquiry and criticisms about the Report see:

-         The Home Office at http://police.homeoffice.gov.uk/community-policing/race-diversity/stephen-lawrence-inquiry

 

ARREST

  • Dawes v. DPP [1994] TRT 209
  • Genner v. Sparks [1705]
  • Murray v. Ministry for Defence [1988] 2 All ER 521
  • Pedro v. Diss [1981] 2 All ER 59
  • R v. Brosch [1988] Crim LR 743
  • R v. Brown [1976] 64 Cr App R 231
  • R v. Inwood [1973] 1 WLR 647
  • Russen v. Lucas [1824]

 

CONTEXT OF ARREST

United Kingdom

  • Associated Provincial Pictures Houses v. Wednesbury Corporation [1948] 1 KB 223
  • Holgate-Mohammed v. Duke [1984] 1 AC 437
  • Castorina v. Chief Constable of Surrey [1988] NLJ 180
  • Chapman v. DPP [1988] 89 Cr App R 190
  • O'Hara v. Chief Constable of the Royal Ulster Constabulary [1997] 1 All ER 129
  • Plange v. Chief Constable of South Humberside Police, The Times, 23 March 1992

ECHR

  • Lawless v. Ireland [1961] 1 EHRR 1
  • McVeigh, O'Nell and Evans v United Kingdom [1981] 5 EHRR 71
  • Murray v. United Kingdom [1994] 19 EHRR 193
  • O'Hara v. United Kingdom [2002] 34 EHRR 32

DETENTION

United Kingdom

  • Napier v. The Scottish Ministers, The Times, 15 November 2001
  • Rice v Connolly [1966] 2 AER 649

ECHR

  • Brogan v. United Kingdom [1988] 11 EHRR 117
  • Funke v. France [1993] 16 EHRR 297
  • Ireland v. United Kingdom [1978-1980] 2 EHRR 25
  • Price v. United Kingdom [2002] 34 EHRR 53
  • Saunders v. United Kingdom [1997] 23 EHRR 313
  • Selmouni v. France [1999] 29 EHRR 403
  • Tekin v. Turkey [2001] EHRR 4
  • Tomasi v. France [1993] 15 EHRR 1

LEGAL ADVICE

  • Averill v. United Kingdom [2000] 31 EHRR 839
  • Magee v. United Kingdom [2000] EHRR 822
  • Murray (John) v. United Kingdom [1996] 22 EHRR 29

DEFINITION OF INTERVIEW

  • R v. Absolam [1989] 88 Cr App R 332
  • R v. Cox [1992] Cr App R 464
  • R v. Fogah [1989] Crim LR 141
  • R v. Macguire [1989] 90 Cr App R 115
  • R v. Maloney and Doherty [1988] Crim LR 523
  • R v. Menard [1995] 1 Cr Appl R 306
  • R v. Sparks [1991] Crim LR 128

Weeks 9 and 10 ? CIVIL LIBERTIES AND TERRORISM

In these final weeks we shall examine anti-terrorist legislation and how it has expanded the investigative authority of law enforcement officials to investigate terrorism. We will explore how these measures have impinged on civil liberties. Additionally, we will attempt to see whether it is possible to balance the need for security with the protection of civil liberties.

Required reading:

  • B. Dickson, ?Safe in their Hands? Britain's Law Lords and Human Rights', Legal Studies, 26 (2006), pp. 329-346.
  • C. Dyer, ?Lords to Rule on Terror Suspects Held in Jail', The Guardian, 4 October 2004, p. 7; at http://politics.guardian.co.uk/attacks/story/0,1320,1319066,00.html
  • Feldman, pp. 366-367
  • Fenwick, pp. 54-55, 782-784, 799-801
  • H. Fenwick, Civil Rights: New Labour, Freedom and the Human Rights Act (Harlow: Pearson, 2000), pp. 60-111
  • Paddy Hillyard, Suspect Community: People's Experiences of the Prevention of Terrorism Acts in Britain (London: Pluto Press, 1993), pp. 1-12, 13-33, 34-67, 68-94, 183-197
  • P. Hillyard and C. Tomlinson, ?Patterns of Policing and Policing Pattern', Journal of Law and Society, 27 (2000), pp. 394-415
  • Janis et al., pp. 371-387, 387-401
  • S. Livingstone, ?Reviewing Northern Ireland in Strasbourg 1969-1994', Irish Human Rights Yearbook, (1995), pp. 15
  • P. Norman, ?The Terrorist Finance Unit and the Joint Action Group in Organised Crime: New Organisational Models and Investigative Strategies to Counter "Organised crime" in the UK', Howard Journal, 37 (1998), pp. 375-392
  • Stephen Savage, Sarah Charman and Stephen Cope, ?The Policy-Making Context: Who Shapes Policing Policy?', in Frank Leisham, Barry Loveday and Stephen P. Savage, eds., Core Issues in Policing, 2nd edn. (Harlow: Pearson, 2000), pp. 30-51
  • Rt. Hon. Jack Straw MO, House of Commons debates, 14 December 1999 (Hansard HC, Vol. 341, col. 152)

Suggested reading:

  • C. Campbell, ?Two Steps Backwards: The Criminal Justice (Terrorism and Conspiracy) Act 1998', Criminal Law Review, (1999), pp. 941-959
  • B. Dickson, ?Northern Ireland's Emergency Legislation ? The Wrong Medicine?', Public Law, 10 (1992), pp. 592
  • K. McEvoy, ?Law, Struggle, and Political Transformation in Northern Ireland', Journal of Law and Society, 27 (2000), pp. 542-571
  • M. Urban, Big Boys' Rules: The SAS and the Secret Struggle Against the IRA (London: Faber & Faber, 1993)
  • Whitty et al., pp. 103-162 (terrorism), 163-214 (fair trial)

RELEVANT CASES (INDICATIVE LIST)

United Kingdom

  • A v. Home Secretary [2004] UKHL 56, 2 WLR 87
  • Attorney General's Reference No. 4 of 2002 [2004] UKHL 43, [2004] 3 WLR 976
  • Black v. DPP [1995]
  • Collins v. Wilcock [1984] 3 All ER 374

ECHR

  • Brannigan and McBride v. United Kingdom (1993) 17 EHRR 539
  • Brogan v. United Kingdom [1989] 11 EHRR 117
  • Fox, Campbell and Hartley v. United Kingdom [1990] 13 EHRR 157
  • Guzzardi v. Italy [1980] 3 EHRR 333

Canada

Suresh v. Minister of Citizenship and Immigration [2002] 1 SCR 3

Israel

Public Committee Against Torture in Israel v. Israel [1999] BHRC 31

Recommended sites to visit:

-         The Bloody Sunday Inquiry website: http://www.bloody-sunday-inquiry.org.uk

-         Terrorism Act 2000: http://www.hmso.gov.uk/acts/acts2000/20000011.htm

-         Anti-Terrorism, Crime and Security Act 2001: http://www.homeoffice.gov.uk/terrorism/index.html

-         Home Office: http://www.homeoffice.gov.uk/terrorism/index.html

-         Northern Ireland Policing Board (monitoring police forces and compliance with Human Rights Act 1998): http://www.nipolicingboard.org.uk/

-         Police Complaints Authority: http://www.pca.gov.uk/

 

Suggested sites to visit:

-         Police Federation for Northern Ireland: http://www.policefed-ni.org.uk

-         Police Service of Northern Ireland: http://www.psni.police.uk/

-         Police Ombudsman for Northern Ireland: http://www.policeombudsman.org/

 

WEEK 9

SEMINAR 4 (Freedom of assembly)

 

Required reading:

  • Stankov and United Macedonia Organisation Ilenden v. Bulgaria [2001] 2 October, 29221/95
  • Gorzelik v. Poland [2005] 40 EHRR 4
  • Plattform Arzte fur das Leben v. Austria [1991] 13 EHRR 204
  • Rekvenyi v. Hungary [1999] 30 EHRR 519
  • The People's Party v. Turkey [2003] 36 EHRR 59
  • Section 3 Terrorism Act (TA)

Questions to consider:

  1. Consider Article 11 in general and the limits you think should be allowed.
  2. What is an assembly?
  3. Consider the limitations permitted as concerns the political activities of state officials. Are these justified?
  4. Read s. 3 TA. Is interference justified under Article 11(2)? Is terrorism a special case?

Educational Aims: Subject Specific: Knowledge, Understanding and Skills

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As it is a half-unit course, only a few important themes in the area of civil liberties and human rights will be considered. Exploration of ideas will be undertaken through readings of current cases and a set of problems of both theoretical and practical dimensions of these issues.

The aim is to be objective in the presentation of material, discussing various viewpoints on most topics. The commitment is to provoke thought and reflection. Likewise, in the written work, you will be evaluated on your own ability to understand the perspectives presented, as well as on the quality and logic of your arguments regardless of your personal or political perspectives.

 

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