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Constitutional law (first term)

Terms in this set (151)

-Facts: The appellant argued that her rights had been violated with in accordance to art 8 and art 9 of the ECHR and in conduction with art 14 as France had banned the wearing of a full face veil in public. French Law prohibited the wearing of the veil as they are a secular country. M submitted that the law violated art 8 as the veil was part of her social and cultural identity and art 9 as it prevented her from manifesting her faith in public. She argued that it did not pursue a legitimate aim however the state argued that it the legitimate aims of ensuring public safety and ensuring respect for the minimum set of values of an open and democratic society.
- Judgement: the complaint was dismissed. 1) The Law interfered with the rights guaranteed by art.8 and art.9. An individual's choices about her appearance related to the expression of her personality and therefore fell within the notion of private life. To the extent that the Law prevented individuals from wearing clothing required by their religion, it interfered with art.9.
- (2) The question was whether the interference pursued a legitimate aim and was necessary in a democratic society. In order to be legitimate, any aim had to be linked to the exhaustive and restrictively-defined exceptions set out in art.8(2) and art.9(2). While there was evidence that the Law sought to ensure public safety, the aim of ensuring respect for the minimum set of values of an open and democratic society was not expressly referred to in art.8(2) or art.9(2). However, the court did recognised that the state sought to pursue a legitimate aim for protecting the rights and freedoms of others
- The Law was, however, justified and proportionate insofar as it sought to guarantee the conditions of "living together". While the ban mainly affected Muslim women, it was significant that it was not expressly based on the veil's religious associations, but solely on the fact that it concealed the face.
- The Strasborugh court decided that they did not have the expertise to decide on this, how to manifest religion is a controversial topic
- in this case the police had good reason - on the basis of intelligence and the past events to expect that on May Day 201, serious public disorder would occur in central London spearheaded by up to 1000 hardcore anti-capitalism protestors. In order to prevent injury to passers by and damage to property, the protesters should be contained by placing an absolute cordon around them under breach of the peace powers. As a result 3000 people were penned to Oxford Circus and prevented from leaving for seven hours. This included many who had done nothing wrong and who has no intent of doing anything violent. The delay of releasing the majority resulted from the violent conduct of the majority of the crowd, some who threw missiles at the police.
- Had the protestors art 5 been infringed
- The court must ask themselves (1) has the claimant been deprived of her liberty and (2) if so, is that action rendered unlawful by virtue of falling within one of particular circumstances in which deprivation of liberty is permissible under art.5
-It has been argued that maintaing public order is not one of the purposes for which deprivation of liberty may lawfully occur according to art 5
- It was regarded as a legitimate purpose - that is attempting to prevent serious violence and disorder - prevented the containment of the protestors in Oxford Circus from amounting to deprivation of liberty
- The practical effect of Austin is to make deprivation of liberty lawful if it strikes a fair balance between the interests of the protestors and the need to maintain public order even though no mention is made of this in art 5.
Control order cases:
Secretary of State for the Home Department v JJ and others:
- The men were all originally detained under the Terrorism Powers 2000, then released and then re-detained and finally place dundee control orders
- It was argued by the appellants that their right to liberty had been breached because the regime contradicted protections against unreasonable detention in human rights law
- Such as they contained 18 hour curfews
- The Law Lords argued that these were too restrictive and breached human rights
Secretary of State for the Home Department v E:
- E was a Tunisian but stateless and one of the first controllers, he lives with his family in north-west London. His order was taken out on 12th March 2005, the day after the legislation came into force, before then he had been in prison without charge under the system subsequently ruled illegal by the Law Lords. His control orders were renewed in March 2006 and then challenged further renewal in Feb 2007. E argued that renewing his control order was wrong because the Home Secretary had made no reasonable attempt to decide whether or not he should be prosecuted instead
- All of the Law Lords rejected E's case saying that it had no merit
Secretary of State for the Home Department v MB:
- Police stopped the appellant at Manchester Airport whilst he was trying to board a flight to Syria.
- Poilce officers interviewed him but allowed him to go. The next day he was stopped at Heathrow and it was believed he was trying to go to Yemen
- In making the control order the home secretary said that the security services believed MB was planning to fight in Iraq. The Law Lords said that MB was denied a fair trial because of the manner in which his case was dealt with
- The Lords rejected a second element of MB's appeal that a control order amounted to a criminal punishment which should be subject to open criminal proceedings