| Case study: Human Rights Act - John and Ali
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This case study explains the European Convention of Human Rights and the rights we are all entitled to under the Human Rights Act.
Additional information
As the students refer to the Convention, they may well discover that claims can come under more than one heading. For example, consider a situation where a tribunal has been set up to interrogate people about their beliefs. In this case a 'right not to be treated in a degrading manner' may overlap with a 'right to freedom of conscience'. A 'right to a fair trial' may also be an issue in this case.
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Example 1. The Convention provides that some rights can be over-ridden in some circumstances, for example the right to freedom of expression. It also states that some rights are inviolable, for example the 'right to life '. So Tom's right to life is considered inviolable, and he is not entitled to give up that right by consenting to be killed.
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The Diane Pretty Case in 2002 is a well known example of this.
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Example 2. Clearly the judge must accept that Ali has a well-grounded fear for his life before any claim by Ali under Article 2 or 3 gets going: evidence could be heard by the judge on that point. It is also worth mentioning that in such cases, the prosecution can apply for the witness to give evidence behind a screen, or using voice disguise technology, or both. This weakens the case for, say, Ali simply handing in a written statement of his evidence and avoiding questioning in court.
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John will obviously rely on his Article 6 right to a fair and public trial: being able to question witnesses in the normal way is a very important part of that. In practice, judges commonly accept that if there is evidence of a threat to a witness, the defendant cannot rely on an Article 6 argument that the witness must given evidence in the normal way. This is for the simple reason that the defendant - or someone in league with him - is almost certainly the source of the threat.
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Example 3. The courts would have to be persuaded that the religion in question does indeed permit (or require) the use of corporal punishment. Even then, it is likely that an Article 2/3 claim by Jed will succeed, in spite of any claim by the parents under Article 5, simply because Article 2/3 rights can be more important. |
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