Problem question

Tom is a member of a group dedicated to the reintroduction of the criminalisation of homosexuality within the UK. As part of its campaign, Tom distributes leaflets describing how ‘gays are a threat to society spreading disease and immorality and should be eliminated’. Along with the leaflet is a website address that contains lists of known ‘gay’ clubs and a link to a site on bomb making. The leaflet asks that concerned citizens should go to the links to find ways to ‘deal’ with the ‘scourge’ if the politicians don’t listen. Tom is arrested by the police, is charged, and found guilty under incitement to hatred legislation. Unknown to Tom, the group he was a member of had been under surveillance by police for some time. The power that allowed the police to intercept communications data gave the police power to do so ‘where there was a threat to the public good’.

Whilst in prison in October 2017, Tom is subjected to a severe beating by other prisoners, which included being made to perform lewd acts. He wishes to see a lawyer to consult on a possible negligence case against the prison as he was left alone without guards despite having been threatened by the prisoners who attacked him earlier that week. Tom’s letter to a solicitor is intercepted and he is not given permission to see a solicitor.

In November 2017 Tom is refused leave to appeal his conviction. Tom applies to the European Court of Human Rights in January 2018.

Advise Tom.

Sample answer

Tom may be able to argue several violations of his rights under the ECHR. His case is admissible as he is a victim and he has exhausted domestic remedies, applying to the European Court of Human Rights (ECtHR) within 6 months after the last domestic remedy. It is unlikely to be ill founded or incompatible with the convention, and there has been a significant disadvantage.

Article 3

Tom could argue his right not to be ill-treated under article 3 has been violated. Article 3 states:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment

Although the State has not directly ill-treated Tom, as the State is allowed to punish a criminal offence, the State may have a positive obligation to protect Tom from violence from other prisoners whilst he is in custody (Edwards v UK). The European Court of Human Rights has used article 1 of the ECHR to expand protection where the State knows or ought to know there is a real and immediate risk of ill treatment and can take reasonable steps to prevent this (Osman v UK). Here, he was left without guards after past threats so the prison should have known there was a real and immediate risk and it would have been reasonable to prevent it.

Article 8

Article 8 is the right to family and private life. It is a qualified right so the State can justify interference. It states:

1) Everyone 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 interests of national security, public safety or the economic well‑being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Tom has been under surveillance. The European Court of Human Rights has held this is an interference with correspondence under article 8(1) and would also be an interference with his private life. The State would have to justify this. The surveillance is probably disproportionate even though the State has a wide margin of appreciation when national security or crime is involved (Laskey v UK).

Tom could also claim a violation of article 8 due to his letter being intercepted. Again, the State would have to justify this and it may be difficult as the letter is sent in order to get legal help which surely is an important right when weighed against the aim of the State to maintain order (Golder v UK).

Article 6

Tom could argue that the lack of access to a solicitor violated his right to a fair trial under article 6(3):

‘to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require’

His inability to get a lawyer meant that he could not get legal assistance (Golder v UK).

Article 10

Tom could argue that his arrest and conviction violates his right to expression under article 10. Freedom of expression is one of the fundamental rights in the ECHR, so only on rare occasions should the State be allowed to limit this under article 10(2), even where expression shocks and disturbs (Handyside v UK).

The State could try and justify the interference by arguing that it would cause harm so the criminal offence is needed to protect against crime or disorder. However, it may not be proportionate, even with a wide margin of appreciation though the State could claim that incitement to hatred could cause harm (Surek v Turkey, Garaudy v France).

Feedback

The answer identifies the appropriate articles to be argued and answers most of the question correctly. There is a good attempt to clearly structure the answer. It could be improved and there are errors and issues with exam technique:

·         Copying out the articles: Assuming the exam allows a statute book into the exam, this is a waste of time and the student will get no marks for being able to copy out an article. Paraphrase important parts in your own words.

·         Introduction: It might help to say clearly at the beginning what rights will be argued.

·         Admissibility: There is a limited discussion. The answer should refer to article 34 for victim status and say what this means as well as applying it to the facts. The other criteria can be found in article 35 (the answer only mentions a couple of these). Briefly explain these and apply to the facts – dates etc. for time limits. The answer should note new criteria under article 35 added by P14.

·         Article 3: gets the main point with regard to positive obligations but when the right is engaged in this way, the answer should then apply article 3. Do the beating and the acts that he is made to perform meet the threshold for suffering so that the treatment is at least degrading? Applying factors listed in Ireland v UK, it could be argued that the treatment meets the threshold and possibly is torture given the lewd acts ( Ireland v UK, Selmouni v France).

·         Article 8: There is a limited discussion. The answer has identified the right areas with regard to surveillance and the letter but more is needed here. The answer is inaccurate as the reason for the State being unable to justify the surveillance would most likely be that it is not in accordance with law (Malone v UK, Copland v UK for example) – applying to facts, note the width of the power and discretion it gives to the State. Letter – do not use ‘surely is’. An answer should avoid this type of language.

·         Article 6: the answer is inaccurate here. The part of article 6 that is copied out is not applicable as this applies to a criminal charge and Tom wishes to sue for personal injury, which is a civil claim. Tom can sue the prison as Article 6 covers civil obligations but he would have to argue that it engages the implicit right of access to a court as established in Golder v UK.

·         Article 10: This is limited and the student may have run out of time by now. It may have been better to do article 10 first, as then the answer could have discussed in more detail the nature of the expression. Is it hate speech? If so it would not be admissible under article 17 (Garaudy v France). If it is incitement to hatred (language used, links to bombsite taking it beyond just causing offence ( note Mouvement Raelien Suisse v Switzerland) re internet links), then it will be allowed under article 10(1).  A very good answer would note that the court has not be consistent in its approach to when Article 17 is used  see Percinek v Switzerland, contrast with  M’bala M’bala v France) If Article 10(1) is engaged, the State would have to justify limitations under article 10(2). The answer could note Here, Tom might have difficulties. It is likely the State would be given a wide margin of appreciation (Handyside v UK, Vejdeland v Sweden), given the nature of the expression and the fact that it is easily accessible to many. The State’s actions may be proportionate.

·         Conclusion: The answer should come to some conclusion, outlining which rights are most likely to be successful if argued before the European Court of Human Rights.

·         Overall, the answer identifies the rights and does apply the principles to the facts in some areas but makes mistakes and is inaccurate in others.