European Community Law - Case Study Example

of the of the of the Convention Rights and Police Powers European Community law does not incorporate the various amendments effected in English law, regarding police powers. As such, the European Community law stipulates that human rights have to be respected, and this applies even to terrorism. In addition, any policy based on the notion of shoot to kill is prohibited by this law (Stone 384). In order to incorporate the rights provided by the European Convention on Human Rights (ECHR), the UK enacted the Human Rights Act 1998. As such, the Convention had influenced the liability of the police. In Osman v United Kingdom, the European Court of Human Rights had held that Article 6 of the ECHR had been violated (Barnett and Jago 611). This violation was deemed to have transpired, with regard to the immunity from civil action of the police, which had been spelled out in the decision in Hill v Chief Constable of West Yorkshire Police. Their Lordships ruled in this case that any negligence by the police, during the course of investigation and control of crime, would not attract action (Barnett and Jago 611). This was dictated by the requirements of public policy. Moreover, this perspective was evident in the ruling in Brooks v Commissioner of Police. In this case the House of Lords held that the treatment accorded to the claimant by the police pertained to the domain of public policy. The latter stipulates that the police do not owe a duty of care to victims or witnesses, regarding the actions taken by them, during the investigation of a crime. The Law Lords ruled that this claim was to be set aside, as the duty of care contended by the claimant was part and parcel of the investigation by the police (Barnett and Jago 611). In Price v United Kingdom the European Court of Human Rights held that detaining a severely disabled individual, in unsuitable conditions at a police station and thereafter detaining that person, under the same conditions, in prison was tantamount to degrading treatment. Such degrading treatment was in breach of Article 3 of the European Convention on Human Rights (Barnett and Jago 611). Despite the contention of the authorities that there was no deliberate attempt at humiliating the applicant, the Court awarded damages. In addition, the Court ruled that the detention of a seriously disabled person, under circumstances that were not congenial to that person’s health, constituted a clear cut infringement of Article 3 of the European Convention on Human Rights (Barnett and Jago 611). As such, it is incumbent upon the authorities to accord respect for the private and family life, home and correspondence of individuals. This has been stipulated in Article 8 of the European Convention on Human Rights. Policing depends extensively on the interception of communications and the conduct of surveillance operations. In the UK there is no right to privacy, under the statute or common law. Thus, in Malone v Metropolitan Police Commissioner, it was held that these activities were not illegal (Barnett and Jago 617). Nevertheless, in Malone v United Kingdom, the European Court of Human Rights held that the protection provided by the law was insufficient. An attempt was assayed to remedy this situation by enacting the Interception of Communications Act 1985. The relevant legal framework has been formalised with the enactment of the Regulation of Investigatory Powers Act 2000 (Barnett and Jago 617). Moreover, the police were empowered to intervene with property and plant surveillance devices, with the enactment of the Police Act 1997. The Police Act 1997 is akin to the Interception of Communications Act 1985, in many respects. It states that in order to detect and prevent serious crime, the planting of surveillance devices may be resorted to, provided there are no other reasonable means to achieve these objectives. Furthermore, the provisions of the Police Act 1997 do not permit of any exceptions. Consequently, surveillance devices can be installed in medical clinics, offices of solicitors and the confessionals of Roman Catholic Churches (Barnett and Jago 617). With the advent of the Regulation of Investigatory Powers Act 2000 and the Human Rights Act 1998, a significant change transpired in the nature of police investigations. The international law requires a country to promote and protect the freedoms and rights of individuals and other entities in their jurisdiction (Cranshaw). One of the principal means of achieving this is by policing. The most fundamental rights are precisely those that have the greatest relevance to the functions and powers of the police. Thus, for instance, the use of force by the police is influenced by the right to life; this is to be found in the provisions of Article 2 of the ECHR. In addition, the power of the police to divest people of their freedom is controlled by the right to liberty and the prohibition of arbitrary arrest (Cranshaw). This has been dealt with under the provisions of Article 5 of the ECHR. Furthermore, Article 8 of the ECHR expresses the power of the police to conduct search and surveillance operations, which is controlled by the right to family life and privacy. Another important facet is that Article 3 of the ECHR prohibits the subjection of individuals to torture, inhuman or degrading treatment (Cranshaw). This protection is aimed at preventing individuals from being subjected to brutality by the police. In Gillan and Quinton v UK the European Court of Human Rights ruled that section 44 of the Terrorism Act 2000 breached Article 8 of the ECHR. The latter ensures the right to respect for private life. This was galling to the UK government, which submitted an appeal to the European Court of Human Rights, seeking to reverse this decision (Wagner). However, the Court set aside this application and held that the UK’s anti – terrorism legislation violated human rights law. The attempt by the UK to take up the matter with the Grand Chamber was also rejected. This has accorded finality to the decision. This dismal state of affairs was further besmirched due to the admission of the Home Office that several thousand illegal searches had been conducted by the enforcement authorities in the UK (Wagner). With the decision in Gillan and Quinton v UK the UK police’s employment of terror laws, in order to detain and frisk individuals has been curtailed to a considerable extent. It had become commonplace for the police to conduct such searches, in the name of preventing terrorist activities, without any grounds for suspicion. Such behaviour has been declared to be unlawful by the European Court of Human Rights. The latter went on to declare the stop and search powers being exercised by the UK police were largely unregulated and bereft of sufficient legal safeguards to prevent abuse (Stop-and-search powers ruled illegal by European court ). From the foregoing discussion it can be surmised that there has been a marked imbalance betwixt police powers and safeguards to individual rights and freedoms. This undesirable state of affairs is exacerbated by the fact that several of the domestic safeguards can be circumvented without much difficulty. In the absence of adequate safeguards, there will remain a mere modicum of justification for enhancing the power of police to restrain, arrest, search, detain and question. However, a measure of relief is provided by the national courts and the European Court of Human Rights, which have made laudable efforts at restoring the balance. Works Cited Barnett, Hilaire and Robert Jago. Constitutional & Administrative Law. Taylor & Francis, 2011. Brooks v Commissioner of Police for the Metropolis & Ors. No. UKHL 24. House of Lords. 21 April 2005. Cranshaw, Ralph. "Human Rights and Policing." n.d. Turkish Weekly. 29 April 2011 . "European Convention on Human Rights." 1950. Gillan and Quinton v UK . No. 4158/05 ECHR 28. European Court of Human Rights. 12 January 2010. Hill v Chief Constable of West Yorkshire. No. UKHL 12. House of Lords. 28 April 1987. "Human Rights Act (c.42)." 1998. "Interception of Communications Act (c.56)." 1985. Malone v Metropolitan Police Commissioner [1980]. No. QB 49. Queens Bench. 1980. Malone v United Kingdom. No. Application No. 8691/79. European Court of Human Rights. 26 April 1985. Osman v United Kingdom . No. EHRR 101. 1998. "Police Act (c.50)." 1997. Price v United Kingdom. No. Application No. 33394/96. European Court of Human Rights. 1996. "Regulation of Investigatory Powers Act (c.23)." 2000. Stone, Richard. "Police powers and human rights in the context of terrorism." International Journal of Law and Management 48.4 (2006): 384 – 399. "Stop-and-search powers ruled illegal by European court ." 12 January 2010. BBC NEWS. 29 April 2011 . "Terrorism Act (c. 11)." 2000. Wagner, Adam. "European Court reject goverment appeal over stop and search ruling." 1 July 2010. guardian.co.uk. 29 April 2011 . Read More