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Advocacy and Human Rights

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THE BASICS
1.2.1The need to identify human rights issues for the court
1.2.2 Approach with caution
1.2.3Failure to raise human rights arguments – waiver
1.2.4 Helping the court
1.2.5 Negligence
1.3 THE CONCEPT OF BALANCE IN THE CONVENTION
1.4 IDENTIFYING CATEGORIES OF RIGHT
1.4.1 Absolute rights
1.4.2Qualified rights
1.5 CONVENTION PRINCIPLES
1.5.1 New thinking – challenging traditional decision-making
1.5.2 Living instrument doctrine
1.5.3 Positive obligations
1.5.4The principle of legal certainty
1.5.5 Legitimate aims for interfering with qualified rights
1.5.6 Proportionality
1.5.7Structured decision-making regarding qualified rights
1.5.8Margin of appreciation127
1.5.9Autonomous meanings
1.5.10 Derogations and reservations
1.5.11 Just satisfaction
2.2 IDENTIFYING THE CAUSE OF ACTION
IDENTIFYING A HUMAN RIGHTS ISSUE FOR THE COURT
2.3.1Free-standing Convention rights proceedings
2.3.2Reliance on Convention rights in legal proceedings
2.4 IDENTIFYING DEFENCES
2.5 IDENTIFYING A PUBLIC AUTHORITY
2.5.1 Public functions in domestic law
2.5.2Consequences of a narrow test for public authority
2.6 DEALING WITH TIME LIMITS
2.7 IDENTIFYING A VICTIM
2.8 ASKING FOR THE RIGHT REMEDY
2.8.1‘Just satisfaction’
2.8.2Recognising the relevance of the ‘missing’ articles
2.9.2Retrospective interpretation of statutes
2.9.3Retrospectivity and the courts’ duties under s 6
2.10 WHEN TO RAISE CONVENTION ISSUES
2.10.1Pleading human rights
2.10.2Human rights in skeleton arguments
2.10.3Oral applications
3.1 THE MARGIN OF APPRECIATION
3.1.1What is the margin of appreciation?
3.1.2Margin of appreciation as an international law concept
3.1.3What is the discretionary area of judgment?
3.2 THE NEED FOR LEGITIMACY
3.3.1Identifying the elements of a proportionality test
3.4.1‘A heightened scrutiny’: the super-Wednesburytest
3.4.2Judicial review and the Human Rights Act
3.4.3How will proportionality develop in future?
4.2 DECIDING ON THE MEANING OF CONVENTION LAW
4.2.1Pre-Human Rights Act attitude to Convention law
INTERPRETATION
4.2.2When should advocates use Strasbourg case law?
4.2.3Is some Strasbourg case law more important than others?
4.2.4Where can Strasbourg case law be found?
4.2.5How should Strasbourg case law be cited?
4.2.6Are other human rights decisions relevant?
4.2.7Which courts are bound by the s 2 duty?
4.2.8Are courts obliged to follow Strasbourg decisions?
4.2.9What is the effect of s 2 on precedent?
4.3.1The interpretative rule
4.3.2Traditional canons of interpretation
4.3.5What is the procedure for using s 3?
4.3.6Is s 3 designed to make a difference?
4.3.7The significance of the s 3 rule
4.3.8Interpretative techniques available using s 3
4.4 USE OF STATEMENTS OF COMPATIBILITY
4.5 SECTION 3 – THE EFFECT ON PRECEDENT
5.2 INCOMPATIBLE PRIMARY LEGISLATION
DEALING WITH INCOMPATIBLE LEGISLATION
5.3 INCOMPATIBLE DELEGATED LEGISLATION
5.3.1Severance of incompatible provisions
5.4 INCOMPATIBLE NON-STATUTORY POLICIES
5.5.2Why seek a declaration?
5.5.3The exercise of the court’s discretion
5.5.4Drafting a declaration of incompatibility
5.5.5Consequences of a declaration of incompatibility
5.5.6Remedial orders
6.1 THE COURT AS A PUBLIC AUTHORITY
6.2.1Rejection of direct horizontal effect
6.2.2Rejecting vertical effect alone
6.2.4Accepting indirect horizontality II – court orders
6.3 JUDICIAL REMEDIES UNDER THE HUMAN RIGHTS ACT
6.3.2Damages
6.4 COSTS OF HUMAN RIGHTS LITIGATION
6.4.1Costs as a disincentive to asserting rights
6.4.2Costs following a declaration of incompatibility
7.1.1A question of finding the balance?
THE HRA AND CRIMINAL ADVOCACY
7.1.2Criminal trials and the range of Convention rights
7.2.1Autonomous meanings of terms
7.2.2Applying Engel in domestic law
7.2.3The autonomous meaning of a criminal charge
7.3 ARRESTS AND THE HRA
7.3.1Is Art 5 engaged – is there detention?
7.3.2Is that detention for a permissible reason?
7.3.3Can it be argued that an arrest is disproportionate?
7.4 HUMAN RIGHTS ACT AND LEGAL REPRESENTATION
7.4.2Arguing for the availability of legal aid
7.4.3The right to effective representation
7.5 THE HRA AND BAIL APPLICATIONS
7.5.1The Strasbourg position
7.5.2Applying the Convention
7.6.1What must be disclosed?
7.6.2Limitations on the right to disclosure
7.6.3Disclosure of used material in summary only cases
7.6.4Disclosure in pre-trial applications
8.1 EVIDENTIAL ISSUES AND HRA ARGUMENTS
8.1.1 Article 6(2): the presumption of innocence
HUMAN RIGHTS ADVOCACY AND THE CRIMINAL TRIAL
8.1.2Exclusion of evidence
8.1.4The right to examine witnesses
8.2 CHALLENGES TO SUBSTANTIVE CRIMINAL OFFENCES
8.2.1Substantive law and the protection of third party rights
8.2.2Freedom of speech cases
8.3.1The independence and impartiality of the court
8.3.2Reasons
8.3.3Clerks to the justices
8.3.4The role of the clerk at a means enquiry
8.3.5The right to be present at trial
8.3.6The right to a hearing within a reasonable time
8.4.1Punishments that may engage Art 3
8.4.2Article 5 and the prohibition on arbitrary detention
8.4.3Article 6 and sentencing
8.4.4Sentencing and other Convention issues
8.4.5Ancillary sentencing issues
8.5 APPEALS: SAFETY AND UNFAIRNESS
8.5.1Applicability of Art 6 to appeals
8.5.2Are appeals curative?
8.5.3Does unfair mean unsafe?
CIVIL COURTS AND TRIBUNALS
9.2 THE HUMAN RIGHTS ACT IN CIVIL PROCEEDINGS
9.3.1Is the right or obligation civil in nature?
9.3.2Is the right recognised in domestic law?
9.3.3Is there a real dispute that is being determined?
9.4.1Right to bring proceedings and restrictions thereon
9.4.4Right to trial within a reasonable time
9.4.6The right to participate effectively at a hearing
9.5.1Is the tribunal bound by the Convention?
9.5.4Reacting to decisions in higher courts
INDEX

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