European Convention on Human Rights - Essay Example

? By Insert Presented to Location Due PART Answer to Question Having closely examined the European Convention on Human Rights and the Human Rights Act of 1998, the law is very clear on the absolute rights and the qualified rights considering the conduct of individuals and the state. In explaining the proceedings of Mike Russell against Wicket World in the High Court alleging that his right to privacy was infringed various provisions of the law in the Convention and Human Rights Act provide an important pieces of reference for consideration as a basis on which both parties would argue out their case. Basis on which Mike Russell would bring his claim according to the Convention on Human Rights and Human Rights 1998 is grounded on Article 8 on Right to Privacy. Basically, this Article stipulates the respect for private or family life. In this respect then, the privacy of Mike ought not to have been infringed especially when the confidential information about his health status was leaked to the Wicket World by the Cloisters private clinic. The prevention or disclosure of information received in private (Article 10) was overstepped and it justifies the claim. This is therefore outright that his privacy on health matter became public creating an argument that he and his fellow team mates failed to show case a standard and successive competition in South Africa. Article 12 Protocol 1 stipulates about possessions enjoyment. This Article argues that every individual can peacefully enjoy his possessions and no party can curtail the enjoyment of the same. The Claimant took to account that it was his sole right to enjoy and make himself happy while engaging in cricket action while in South Africa as the law explains. Regardless in whichever way of enjoyment as far as it does not override any other law of the land had a right to enjoy in any way he wished and with any person. Mike Russell having partied with local prostitute during the night passion was just enjoying his right. This also infringed his right to privacy where it was revealed the caliber of the class type that he enjoyed with. The basis on which Wicket World would defend the claim would be founded on a number of provisions of the law as enshrined in the European Convention on Human Rights and the Human Rights Act, 1998.1 The claim according to Article 8 on right to privacy is however limited by Article 18 that limits on use of restriction of rights. This therefore overrides the limits to the privacy of the individual (Mike Russell) where exercising his privacy in a manner that resulted to moral decadence while on a public activity .Wicket World was meant to cover and provide information on the activities engaged to the cricket team and its their role to report in the best interest of the public even where the participants actions are in question. According to section 6 of Human Rights Act 1998, it is unlawful for a public authority to act in a way which is incompatible with conventional rights but the Cloisters was a private clinic and it was not bound by this section 6 of the Human Rights Act 1998 hence it exercised discretion to release information on the health status of Mike Russell Article 12 provides that individuals enjoy rights to peaceful possessions enjoyment but this right is not absolute and hence qualified. It is imperative to establish that the right to private life for enjoyment is qualified in the sense that infringement in this basic right may be justified necessary in order to protect some important general public interest. It therefore explains that it was in the interest of the citizens of England to be represented in the best way possible by the cricket team in the competitions rather than the poor performance that the team produced. 1European Commission on Human Rights and Human Rights Act, 1998 Playing without sober mind due to alcohol influence cannot be merely assumed that it was their absolute rights to enjoy in the expense of the country that needed them to represent it in the international competitions. Wicket World Magazine as an autonomous entity enjoyed freedom of expression according to Article 10 of the Convention. Writing about public figures and in this case the England cricket team players was for the best interest of the public. In addition, giving explicit information about the activities and all scenarios that resulted to dismal performance was critical to the public. Protection of morals among individuals is also an n important aspect in ensuring values, ethics and code of conduct. Some of the players engaged in gross misconduct of engaging in alcoholism while undertaking the roles that the team had held them for in South Africa. It therefore follows that the critic and the urge to give information on such actions was justified hence infringement of the basic rights was justified as necessary to protect the important general public interest. From the two arguments provided by the parties, both the claimant (Mike Russell) and defendant (Wicket World) the High Court approach in considering the claim would be based on all provisions of the law of the land that are party to this claim. However, the court would consider acting within its jurisdiction. The approach would be based on Article 18 that limits on use of restriction of rights that individual Human rights and fundamental freedom as provided in Article 8 on right to privacy and Article 12 protocol 1 on possession enjoyment. Also, the limitations prescribed should be in accordance with the law. It should also maintain the authority and the impartiality of the judiciary. Under the Principle of Proportionality the High Court decision should be based on more obviously morality. The High Court should also borrow a leave from the Human Rights Act, 1998 and the European Convention on Human Rights on the importance to establish absolute rights and qualified rights in order to determine whether the infringements of the basic rights of the claimant by the defendant would be justified as necessary to protect some important general public interests.2 Contempt of Court is an act which tends to interfere with the course of justice which is a criminal offence. This case relates with the case, His Royal Highness the Prince of Wales v Associated Newspapers Ltd [2006] EWHC 11 (Ch), which basically is a case which was filed after The Mail on Sunday intentionally published Prince Charle’s diary. These extracts personally embarrassed the Prince since they were interfering with his privacy. Prince Charles anonymously emerged as the winner of the case, which prohibited The Mail on Sunday from any further publishing of the diary extracts.3 Answer to Question 2 (A) Considering whether the Sentinel might have incurred criminal liability under the Contempt of Court Act 1981, the publication made with an editorial stating: Oafish behavior by certain footballers and cricket players has tarnished the good name of English sport. Instead of admitting their sins when caught in the act, too many of these were overpaid lager louts run to the courts, complaining that their human right of privacy has been infringed. The courts have been far too sympathetic to such specious claims. Human rights are intended to protect the poor and oppressed, not the spoilt and wealthy. 2Convention on Human Rights and Human Rights 1998 3His Royal Highness the Prince of Wales v Associated Newspapers Ltd [2006] EWHC 11 (Ch) It can be deduced from the Contempt of Court Act 1981 that Sentinel went against the following provisions of the Act: Sentinel committed a defamation which is a law that protects the reputation of individuals against harm resulting from false statements.4 The trial still under the hands of the High Court the publication went against the provisions of the Contempt of Court Act 1981 by producing inflammatory comments where it reads that Human rights are only bound to protect the poor and oppressed and not the spoilt and the wealthy. It therefore meant that the cricket players were the spoilt and wealthy and Human Rights should not protect them. It was also liable to breach of confidence which restricts the freedom of expression in order to preserve the security of the individuals and the public of England. The players had the rights to confidential that were leaked to the public on how they conducted themselves. However; this contempt of Court undermines the supremacy of the High Court to hear and determine the claim and in the process provide justice to all. In addition the publishing firm committed a criminal liability of sedition and incitement to disaffection. The law restricts freedom of expression in order to protect the institutions of government. In this case the High Court should be protected from such criminal acts that may trigger immediate disorders and derail administration of justice. From the above analysis, it can be deduced that Sentinel may have incurred criminal liability under the Contempt of Court Act 1981 by interfering with the course of justice in legal proceedings regardless of their intentions to do so. Criminal liability incurred went against the “prejudgment principle” as Sentinel had conceivably undermined the authority of the judiciary by prejudging the case outcome. 4Contempt of Court Act, 1981 Sentinel in their publication had already given an outcome of the judicial process that had not been determined yet. The publishing firm also contravened the ‘pressure principle by interfering with administration of justice. This case relates to the Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) case, where a television presenter in Britain, Jamie Theakston, tried to prevent the Sunday People from going on to publish a story which involved the presenter visiting a London based brothel by the name Mayfair. He argued that this was interfering with his privacy, clearly stated in the European Convention of Human Right’s Article 8. This case was somehow unique and it was a big milestone in the European legal system.5 (B) In the light of the above analysis on the criminal liability under the Contempt of Court Act 1981, though may be justified under the European Convention on Human Rights on freedom of expression the extent to which Sentinel committed a Contempt of Court under the provisions of the Act was fatal . These liabilities under the Contempt of Court comply with the European Convention on Human Rights as provided in Article 14 and Article 7. With reference to these articles, the Contempt of Court that complies with the European Convention on Human Rights and Human Rights Act was committed. Article 14 on prohibition of discrimination in relation to convention rights ought to have been respected. The publishing firm went ahead and did breach the law of the land and various provisions that that the Convention provides and also the provisions of the Contempt of Court Act of 1981. The UK authorities would rely on the qualifications in the European Convention in relation to the Act. 5Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) Due to the various comments that Sentinel published, it was a show of prejudice as expressed by the Contempt of Court Act 1981. Article 7 stipulates on criminal law was also breached. The cricket players felt that their rights were infringed and that they relied on various provisions of the law of the rights that they enjoy in terms of privacy and also freedom to enjoy their possessions. However, other provisions of the Convention contravene other provisions but it was within the jurisdictions of the High Court to consider all the Acts on Human Rights. This therefore implies that Mike Russell claim based on the Human Rights as per the Convention on the various rights of privacy and freedom to enjoy was important. The defendant will to justify their publications as also outlined by the provisions were to be considered as the basis of the High Court to develop an approach to deal with the claim and deliver justice according to the law. It is therefore imperative to understand the law as enshrined in various pieces of Acts to ensure that and consider all the parties that was part of the judicial process to ensure administration of justice. As a matter of fact, every party had right according to the European Convention on Human Rights and Human Rights Act 1998. This however would be left to the High Court to exercise its mandate in giving ear to both the claimant and the defendant and act in accordance with all provisions of law. PART 2 Answer To the Question The Parliament having passed the Tyre Waste Act 2012 in encouraging the storage and destruction of tyres in a way that does not harm or cause destruction of the environment and encourage the use of the waste in new and innovative ways. It is clearly outlined that the Act bestows to the Secretary of State for the Environment the power to provide incentives for the same. With respect to Section 8 of the Act, the decisions made by the Secretary of State under the Act may not be challenged in any court of law. With all these considerations, the application by various companies for either a license or a grant and the decisions made by Sofie Torr considered by Section C as argued out in the complaints by the said companies is enshrined in Schedule 1 and the set guidelines that were implemented by the Secretary of State. These companies include Alpha Limited, Beta Limited, Gamma Limited and Delta Limited. In considering challenging the decisions made by Sofie Torr I would argue out the advice to the companies in question on the following basis in line with judicial review including the nature and purpose of discretionary powers. Through judicial review, a public body may be determined by the courts on whether it has accordingly acted as provided by the law. A public body acts unlawfully whether or not if the acts in a way which is illegal, irrational or procedurally unfair.6 6The Tyre Act, 2012 Alpha Limited stored and destroyed tyres for the past 3 years. It stored not more than 1,000 tyres at any one time in secure warehouse. The shredded rubber is then recycled into rubber sports matting gymnasiums. On the basis of the harm that would be caused by the rubber sports matting on the environment was subject to contravening the Tyre Act 2012. The provisions of the Act (A) and (B) clearly indicate all the requirements that Alpha ought to have followed in securing a license of which they did not secure. Schedule 1 (A) (i) provides that any business that has stored, destroyed or recycled tyres for a period of 5 years prior to the start of the licensing system and did so without being subject to any investigation during that period. Alpha Limited grant was rejected because it contravenes the guidelines (2) that were implemented by the Secretary of State .It states that any application for a license by any firm must have secure storage facilities and no previous convictions for environmental offences. Guideline (4) of the same schedule also states that for a company to be awarded a recycling grant, the applicant must show that the tyre waste would be recycled into a format which will not prove harmful to the environment. Alpha for this purpose, and considering this basis of the guidelines, Sofie Torr decision to reject their application because expert evidence showed that a large sports matting could leach chemicals into the soil and so it’s harmful to the environment was fundamental. It is therefore vital to note that for purposes of the need for considering challenging the rejection for the license; Alpha Limited had contravened both the Tyre Act 2012 and the set guidelines as implemented by the Secretary of State. Citing reference to the environmental harm, the expert report provided evidence that the recycling processes of the company were detrimental to the well being of the environment due to the release of chemicals produced by rubber from the shredding of tyres. It is the duty of any court to uphold any exercise of the powers bestowed to it by Parliament. The High Court therefore would rely on the Act and also the guidelines. Schedule 1 attached to the Act indentifies, firstly the businesses which will obtain a license automatically and the activities that are to be the exempt from any requirement to hold a license. Alpha did not hold a license for one and their recycling processes for Tyre wastes were not sustainable because chemicals were being leached. This therefore would act as a basis of advise for not to challenge the decisions made by Sofie Torr. Beta Limited had for a license to store, destroy and recycle 5,000 tyres at any one time. The destruction process would use a patented technology according to the application which converts tyre waste into fuel. The company application terms the technology as very clean and that it produces minimal if any emissions or waste. The firm claims that this patented technology had been used in Germany for quite some time and that the technology had a proven record globally and given thumps up by experts. Sofie Torr rejected their application on grounds that the secretary of State had not approved the said technology as required under the scheme of licensing. Beta Limited had fulfilled the requirements of the Tyre Waste Act 2012 Schedule 1 section A (i) where any company applying for the license to store, destroy and recycle tyres for a period of 5, 000.However, the provisions on the set guidelines implemented by the Secretary of State had faulted guideline (3) which provides that an application for recycling license will only be granted or considered if the technological process to be used has been approved by the Secretary of State. The approval also, was only to be granted if the technology had been used in the UK for at least two years without causing any inacceptable level of pollution to the environment. In their application, Beta Limited contravened these provisions of the guidelines. As per the requirements, the patented technology had not been used in UK but only used in Germany which is just within the European front. This merely means that the firm had been engaging in activities that were far out of the provisions provided in various Acts in the UK. Although the technology had been approved by experts globally, that did not guarantee the issuance of a license or grant in the UK of a technology that is not recognized in that country as per the limitations provided. Even though the technology is environmental sound in recycling of the tyre waste, the processes that it uses are still in question as it has not been fully justified whether still the technology is free from environmental degradation. In a deciding in taking an action to challenge the decision in a court of law would not be justifiable in such a matter that for a firm to be granted a license, the technology has to have been approved by the Secretary of State. This technology has not been approved by the said public body and thus its use in application to recycle tyre waste was inappropriate as provided by law of the land in the UK. In line with judicial review, a party which feels aggrieved by a decision made by a public authority has grounds to challenge that decision under the judicial review, specific procedures has to be followed as set out in Senior Courts Act 1981 section.31 and in the Civil Procedure Rules which govern the way in which cases proceed through the courts.7 7Senior Courts Act, 1981 Just by a fact that this technology had received increased experts support could be a basis for Beta Ltd to argue out their challenge for the decision made by Sofie Torr would be grounded and supported. Advice to challenge this decision might be important in that just by the fact that the Technology was not approved by the Secretary of State could give the challenge some weight in terms of the decisions made by Sofie. If at all the technology is environmentally sound and it fulfilled all the requirements of the law, this could guarantee a substantial claim that basing the decision on just matters of approval and the region where the technology has been used and in this case Germany, could not warrant denial to Beta ltd to be issued with the license to undertake the process of storage and damage of tyres and also the process of recycling the trye wastes. Gamma Ltd has been involved in this industry for the last 25 years and the company is said to have a good environmental record. Due to this development, the firm was granted a license under Schedule 1(A) but the license was withdrawn after the Secretary of State discovered that the police had carried a scrutiny and an investigation on Gamma Ltd in November 2011. According to Schedule A (ii) Gamma had contravened it because it was evident that an investigation has been carried out by the police as Gamma Ltd had accepted that the police had searched their premises as claimed and the investigation was merely on stolen tyres but nothing was found. It is also said that Gamma Ltd had assumed the Schedule 1 (A) (ii) and had referred to an environmental investigation. According to the set guidelines set by the Secretary of State on the licensing scheme, Gamma had followed due process in securing the license that was later withdrawn by Sofie Torr citing that Gamma Ltd had been under investigation by the police as the only basis to withdraw the license afterwards. This firm however is justified and advised to challenge the decision made to have the license again. In challenging the withdrawal decision it is a substantial claim because even after the decision, Sofie Torr invites the firm to make an application for the license instead. This is a clear indication that the license was withdrawn without following due process that the Schedule outlines on the same. On an application to store or destroy tyres, or to recycle tyre waste, Gamma had followed the requirement with the Secretary of State for the environment. Also, their activities had not been challenged on secure storage facilities and no previous convictions had been made for environmental offences. In fact Gamma has had a clear record track for the last 25 years having engaged in this business and specifically the environmental record had been good. Gamma felt that just basing the withdrawal on mere police investigation that was not even based on the environmental question of degradation and harm. The activities of the firm in waste recycling did not prove harmful to the environment. Gamma had exercised all its dealings within the law provided by the public body that exercised its discretionary powers to withdraw the license. Delta Ltd another firm in the same business was granted a license on application but Tyred Out!, a national pressure group that monitors this environmental sustainable engagement, lobbied for the Tyre Waste Act, claiming that Delta was not suitable to hold a license. It was convicted for fly- tipping tyres in February 2010. Tyre Out! Basically, it’s considered a fact that Delta had been convicted in engaging in fly-tipping of tyres which is not an environmentally sound way of ensuring that the technology used does not harm the environment. This was gross violation of the Tyre Act 2012 that provided that a due process for licensing should be adhered to ensure that all companies engaging in this business should not compromise on the environment. Fly-tipping is considered a way that would render the environment degraded as a matter of fact due to the wastes that get deposited in the environment. It is therefore fundamental here that no provision in both the Schedule 1 and the Tyre Act that give room for such kind of reckless way of disposal which is detrimental to the environment. According to the Tyre Act 2012 Schedule 1 (A) Delta Ltd had fulfilled all the requirements for the process as provided by the Schedule but it contravenes the guidelines implemented by the Secretary of State on Environment as stipulated in guideline. It clearly shows that any company that apply for the license must have secure storage facilities and no previous convictions for the environment had been committed. In response to the claim by Tyre Out! Sofie Torr responded “I agree that Delta Ltd should not be granted a license. However, the application was carefully considered by the Secretary of State for Employment who decided that the company’s closure in an area of high unemployment would devastate the local economy. The license was granted for this reason despite the company’s poor environmental record” This therefore shows that the Tyre Act 2012 and the set guidelines implemented by the Secretary of State. In advising the national pressure group to challenge the decision, it would base their argument on still the Act and the guidelines that govern the Secretary State on Environment. It contradicts guideline 2 that a firm willing to apply for a license must have secure storage facilities and no previous convictions for environmental offences. Delta Ltd was convicted of fly-tipping of tyres and the environmental record of the company was poor as claimed in the response given by Sofie Torr. Guideline 4 was also contravened as Delta did not show that the tyre waste was not recycled into a format that which would not prove harmful to the environment. This also means that the technology used by the company was not environmentally sound and not approved whatsoever. In addition, the Tyre Act has no provision giving room for other parties such as the Secretary of State for Employment to contravene the guidelines. Claiming that Delta was issued with a license due to the economic status of the area of operation was a demean for the rule of law. The guideline doesn’t in anyway give provisions for any other body to contravene the guidelines of the same. The national pressure group was justified to therefore to challenge the decision. In pursuit of justice and right decisions being made, the right proceedings would be generally is the claim for judicial review made under Section 31 of the Senior Courts Act 1981. The right remedies have to be made to ensure that all the parties are satisfied. Various statutory exclusions of reviews uphold the interests of the people. Conclusion In ensuring justice for all parties, it is clearly fundamental to ensure that all the courts should consider all pieces of advice in determining various cases and also ruling on various decisions that have been made by other bodies. General principles involving law ought to be followed in the administration of justice in the corridors of justice. Bibliography Convention on Human Rights and Human Rights 1998 Contempt of Court Act, 1981 European Commission on Human Rights and Human Rights Act, 1998 Senior Courts Act, 1981 The Tyre Act, 2012 Cases His Royal Highness the Prince of Wales v Associated Newspapers Ltd [2006] EWHC 11 (Ch) Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137(QB) Read More