Selected Human Rights & Civil Liberties Terms

absolute right - A right set out in the European Convention on Human Rights that cannot be interfered with lawfully, no matter how important the public interest in doing so might be. Absolute rights include freedom of thought, conscience, and religionand the prohibitions on torture, inhuman treatment or punishment, and degrading treatment or punishment. Compare qualified right.

blasphemy n. Statements or writings that deny – in an offensive or insulting manner – the truth of the Christian religion, the Bible, the Book of Common Prayer, or the existence of God. Blasphemy is a crime at common law, and if it is published there is no need to show an intention to shock or insult or an awareness that the publication is blasphemous. Prosecutions for blasphemy are now rare and it has been suggested that the crime be abolished.

breach of confidence 1. The disclosure of confidential information without permission. 2. Failure to observe an injunction granted by the court to prevent this. The injunction is most commonly granted to protect trade secrets (except patents, registered designs, and copyrights, which are protected under statute), but may also be granted, for example, to protect the secrecy of communications made between husband and wife during marriage or, possibly, between cohabitants during their period of cohabitation. The laws protecting confidential information exist at common law and will only restrain the dissemination of truly confidential information. Information that has been disclosed anywhere in the world, unless it was disclosed under conditions (usually a contract) of confidence, cannot subsequently be prevented from disclosure by the courts.

contempt of court 1. (civil contempt) Disobedience to a court judgment or process, e.g. breach of an injunction or improper use of discovered documents. If the injunction is served on the defendant with a penal notice attached, breach of the injunction can result in the defendant being jailed. 2. (criminal contempt) Conduct that obstructs or tends to obstruct the proper administration of justice. At common law criminal contempt includes the following categories. (1) Deliberately interfering with the outcome of particular legal proceedings (e.g. attempting improperly to pressurize a party to settle legal proceedings) or bribing or intimidating witnesses, the jury, or a judge. (2) Contempt in the face of the court, e.g. using threatening language or creating a disturbance in court. (3) Scandalizing the court by “scurrilous abuse” of a judge going beyond reasonable criticism or attacking the integrity of the administration of justice. (4) Interfering with the general process of administration of justice (e.g. by disclosing the deliberations of a jury), even though no particular proceedings are pending. Under the Contempt of Court Act 1981 it is a statutory contempt to publish to the public, by any means, any communication that creates a substantial risk that the course of justice in particular legal proceedings will be seriously impeded or prejudiced, if the proceedings are active. Such publications constitute strict-liability contempt, in which the intention to interfere with the course of justice is not required, but there are various special defences. It is also contempt under the Act to obtain or disclose any particulars of jury discussions and to bring into court or use a tape recorder without permission. The Act also protects (subject to certain exceptions) sources of information against disclosure in court. Contempt of court is a criminal offence punishable by a jail sentence and/or a fine of any amount ordered by the court.

defamation n. The publication of a statement about a person that tends to lower his reputation in the opinion of right-thinking members of the community or to make them shun or avoid him. Defamation is usually in words, but pictures, gestures, and other acts can be defamatory. In English law, a distinction is made between defamation in permanent form (see libel) and defamation not in permanent form (see slander). This distinction is not made in Scotland. The remedies in tort for defamation are damages and injunction. In English law, the basis of the tort is injury to reputation, so it must be proved that the statement was communicated to someone other than the person defamed. In Scottish law, defamation includes injury to the feelings of the person defamed as well as injury to reputation, so an action can be brought when a statement is communicated only to the person defamed. If the statement is not obviously defamatory, the claimant must show that it would be understood in a defamatory sense (see innuendo). It is not necessary to prove that the defendant intended to refer to the claimant. The test is whether reasonable people would think the statement referred to him, but the defendant may escape liability for unintentional defamation by making an offer of amends (see apology). Other defences are justification, fair comment, absolute privilege, and qualified privilege. All those involved in the publication of a defamatory statement, such as printers, publishers, and broadcasting companies, are liable and every repetition of a defamatory statement is a fresh publication, giving rise to a new cause of action. A mere distributor of a book, newspaper, etc., is not liable if he did not know and had no reason to know of its defamatory contents. The Defamation Act 1996 put this defence on a statutory footing and generally speeded up procedures for defamation litigation, but it did not change the rule that the jury and not the judge decides on the damages in defamation cases.

degrading treatment or punishment Treatment that arouses in the victim a feeling or fear, anguish, and inferiority capable of humiliating and debasing the victim and possibly breaking his physical or moral resistance. The prohibition on degrading treatment or punishment as set out in Article 3 of the European Convention on Human Rights is now part of UK law as a consequence of the Human Rights Act 1998. This right is an absolute right; such treatment can never be justified as being in the public interest, no matter how great that public interest might be. Public authorities have a limited but positive duty to protect this right from interference by third parties.

derogation n. Lessening or restriction of the authority, strength, or power of a law, right, or obligation. Specifically: 1. (in the European Convention on Human Rights) A provision that enables a signatory state to avoid the obligations of some but not all of the substantive provisions of the rest of the Convention. This procedure is provided by Article 15 of the Convention and is available in time of war or other public emergency threatening the life of the nation. Although Article 15 is not brought into domestic law by the Human Rights Act 1998, the Act exempts public authorities from compliance from any articles (or parts of articles) where a derogation is in place. 2. (in EU law) An exemption clause that permits a member state of the EU to avoid a certain directive or regulation. Sometimes member states are allowed a longer than normal time to implement an EU directive.

discrimination n. Treating one or more members of a specified group unfairly as compared with other people. Discrimination may be illegal on the ground of sex, sexual orientation, race, religion, disability, or nationality. See also disabled person; Human Rights Act; positive discrimination; racial discrimination; sex discrimination.

European Convention on Human Rights A convention, originally formulated in 1950, aimed at protecting the human rights of all people in the member states of the Council of Europe. Part 1 of the Convention, together with a number of subsequent protocols, define the freedoms that each signatory state must guarantee to all within its jurisdiction, although states may derogate from the Convention in respect of particular activities (see derogation). The Convention established a Commission on Human Rights and a Court of Human Rights in Strasbourg. The Commission may hear complaints (known as petitions) by one state against another. It may also hear complaints by an individual, group, or nongovernmental organization claiming to be a victim of a breach of the Convention, provided that the state against which the complaint has been made declares that it recognizes the authority of the Commission to receive such petitions. The Commission cannot deal with any complaint, however, unless the applicant has first tried all possible remedies in the national courts (in England he must usually first appeal to the House of Lords). All complaints must be made not later than six months from the date on which the final decision against the applicant was made in the national courts. The Commission will only investigate a complaint if it is judged to fulfil various conditions that make it admissible. If the Commission thinks there has been a breach of the Convention, it places itself at the disposal of the parties in an attempt to achieve a friendly settlement. If this fails, the Commission sends a report on the case to the Committee of Ministers of the Council of Europe. The case may then be brought before the Court within three months by either the Commission or one of the states concerned (an individual victim cannot take the matter to the Court himself). No case can be brought before the Court, however, unless the state against which the complaint is made has accepted the Court's jurisdiction. The Court then has power to make a final ruling, which is binding on the parties, and in some cases to award compensation. If the matter is not taken to the Court, a decision is made instead by the Committee of Ministers. The Convention has established a considerable body of jurisprudence. As of 2 October 2000 the Convention and its terms were transformed into English law as the Human Rights Act 1998.

freedom of association A right set out in Article 11 of the European Convention on Human Rights and now part of UK law as a consequence of the Human Rights Act 1998. This right protects freedom of peaceful assembly, including the right to form and join trade unions and similar bodies. It is a qualified right; as such, the public interest can be used to justify an interference with it providing that this is prescribed by law, designed for a legitimate purpose, and proportionate. The right of those in the armed forces, the police, and the administration of the state is protected only to the extent that any interference with this right must be prescribed by law.

freedom of expression A right set out in Article 10 of the European Convention on Human Rights and now part of UK law as a consequence of the Human Rights Act 1998. “Freedom of expression constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress and for the development of every man...it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb...such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.” Convention jurisprudence gives different weight to different kinds of expression. The most important expression – political speech – therefore is likely to be protected to a much greater extent than the least important – commercial speech. Freedom of expression is a qualified right; as such, the public interest can be used to justify an interference with it providing that this is prescribed by law, designed for a legitimate purpose, and proportionate.

human rights Rights and freedom to which every human being is entitled. Protection against breaches of these rights committed by a state (including the state of which the victim is a national) may in some cases be enforced in international law. It is sometimes suggested that human rights (or some of them) are so fundamental that they form part of natural law, but most of them are best regarded as forming part of treaty law. The United Nations Universal Declaration of Human Rights (1948) spells out most of the main rights that must be protected but it is not binding in international law. There are two international covenants, however, that bind the parties who have ratified them: the 1966 International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights. The United Nations has set up a Commission on Human Rights, which has power to discuss gross violations of human rights but not to investigate individual complaints. The Human Rights Committee, set up in 1977, has power to hear complaints from individuals, under certain circumstances, about alleged breaches of the 1966 Covenant on Civil and Political Rights. There are also various regional conventions on human rights, some of which have established machinery for hearing individual complaints. The best known of these is the European Convention on Human Rights (enacted in English law as the Human Rights Act 1998) and the Inter-American Convention on Human Rights (covering South America).

Human Rights Act Legislation, enacted in 1998, that brought the European Convention on Human Rights into domestic law for the whole of the UK on 2 October 2000. In the past the use of the Convention was limited to cases where the law was ambiguous and public authorities had no duty to exercise administrative discretion in a manner that complied with the Convention. The Act creates a statutory general requirement that all legislation (past or future) be read and given effect in a way that is compatible with the Convention. Section 3 provides that all legislation, primary and secondary, whenever enacted, must be read and given effect in a way that is compatible with Convention rights wherever possible. The Act requires public authorities – including courts – to act compatibly with the Convention unless they are prevented from doing so by statute. This means that the courts have their own primary statutory duty to give effect to the Convention unless a statute positively prevents this. Section 7 gives the victim of any act of a public authority that is incompatible with the Convention the power to challenge the authority in court using the Convention, to found a cause of action or as a defence. The Act introduces a new ground of illegality into proceedings brought by way of judicial review, namely, a failure to comply with the Convention rights protected by the Act, subject to a ‘statutory obligation’ defence. Secondly, it will create a new cause of action against public bodies that fail to act compatibly with the Convention. Thirdly, Convention rights will be available as a ground of defence or appeal in cases brought by public bodies against private bodies (in both criminal and civil cases). Section 7(5) imposes a limitation period of one year for those bringing proceedings. However, only persons classified as “victims” by the Act are able to enforce the duty to act compatibly with the Convention in proceedings against the authority, and only victims will have standing to bring proceedings by way of judicial review. Most private litigants, at least in private law proceedings, will count as victims. The Convention rights that have been incorporated into the Act are: Articles 2 to 12, 14, 16, 17, 18; Articles 1 to 3 of the First Protocol; and Articles 1 and 2 of the Sixth Protocol (individual rights are subjects of entries in this dictionary). See absolute right; qualified right. The Act requires any court or tribunal determining a question that has arisen in connection with a Convention right to take into account the jurisprudence of the Strasbourg organs (the European Court and Commission of Human Rights and the Committee of Ministers). This jurisprudence must be considered “so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen”, whenever the judgment, decision, or opinion to be taken into account was handed down. Section 19 provides that when legislation is introduced into Parliament for a second reading, the introducing minister must make a statement, either (1) to the effect that, in his view, the legislation is compatible with the Convention, or (2) that although the legislation is not compatible with the Convention, the government still wishes to proceed. If it is not possible to read legislation so as to give effect to the Convention, then the Act does not affect the validity, continuing operation, or enforcement of the legislation. In such circumstances, however, section 4 empowers the high courts to make a declaration of incompatibility. Section 10 and schedule 2 provide a ‘fast-track’ procedure by which the government can act to amend legislation in order to remove incompatibility with the Convention when a declaration of incompatibility has been made. The Act gives a court a wide power to grant such relief, remedies, or orders as it considers just and appropriate, provided they are within its existing powers. Damages may be awarded in civil proceedings, but only if necessary to afford just satisfaction; in determining whether or not to award damages and the amount to award, the court must take account of the principles applied by the European Court of Human Rights. Sections 12 and 13 provide specific assurances as to the respect that will be afforded to freedom of expression and freedom of thought, conscience, and religion: these are ‘comfort clauses’ for sections of the press and certain religious organizations. The Act does not make Convention rights directly enforceable against a private litigant, nor against a quasi-public body with some public functions if it is acting in a private capacity. But in cases against a private litigant, the Act still has an effect on the outcome, because the court will be obliged to interpret legislation in conformity with the Convention wherever possible; must exercise any judicial discretion compatibly with the Convention; and must ensure that its application of common law or equitable rules is compatible with the Convention.

liberty and freedom from arbitrary detention A right set out in Article 5 of the European Convention on Human Rights and now part of UK law as a consequence of the Human Rights Act 1998. All detentions must be prescribed by law and detentions must only be for one of the specified purposes set out in Article 5. Those detained must promptly be given reasons for their detention and then at regular intervals have access to a court to test the lawfulness of their continued detention. Those remanded in custody pending a criminal trial must be released on bail unless their detention is justified and they shall be entitled to trial within a reasonable time. There is an enforceable right to compensation for unlawful detention.

margin of appreciation A concept created by the European Court of Human Rights to allow a certain amount of freedom for each signatory state to regulate its own activities and its application of the European Convention on Human Rights without being subject to review by the Court. This freedom is not available to national courts when considering Convention issues arising within their own countries. However, in some cases the domestic courts, when reviewing decisions of public authorities under the Convention, may defer on democratic grounds to those elected bodies (see discretionary area of judgment).

obscene publications Material that tends to deprave or corrupt. Under the Obscene Publications Acts 1959 and 1964 it is an offence to publish an obscene article or to have an obscene article for publication for gain. For the purposes of the Acts, obscenity is not limited to pornographic or sexually corrupting material: a book advocating drug taking or violence, for instance, may be obscene. Whether or not particular material is obscene is a question of fact in each case, to be decided by the jury, and expert evidence is not usually permitted. Material that merely tends to shock or disgust is not obscene. The intention or motive of the author in writing or depicting the material is irrelevant. “Publishing” an obscene article includes distributing, circulating, giving, hiring, or lending the article, offering it for sale or hire (the latter does not include displaying such material in a shop, which is merely an invitation to treat and not an offer), or transmitting it through the telephone system by means of a modem. An “article” may be material that is to be looked at or played over, rather than read, and can also include, for instance, a negative of a film or any article used to reproduce material to be read or looked at. This offence is one of strict liability, but there is a defence of lack of knowledge, if the defendant can show he had not examined the article and had no reason to suspect that publishing it would constitute an offence. There is also a special defence of public good, which applies when the defendant shows that publication of the article was justified as being in the interests of science, literature, art, or learning. The offence of possessing an obscene article in the expectation that it will be published for financial gain is also subject to the defences of lack of knowledge and public good. If a magistrate suspects that obscene articles are kept in any premises for this purpose, he may issue a warrant authorizing the police to search for and seize the articles. If they prove to be obscene, the magistrate may order them to be forfeited. The Acts do not apply to material published by means of television or broadcasting, but they do apply to cinema screening and theatre performances, subject to the rule that prosecutions in such cases require the consent of the Director of Public Prosecutions or the Attorney General, respectively. These offences, too, are subject to the public good defence. There are also various special offences relating to obscenity, e.g. publishing obscene advertisements, sending unasked for material describing sexual techniques, or sending through the post any “indecent or obscene article” (the latter offence is limited to sexual obscenity, but also includes material that is merely indecent). It is an offence to take, make, distribute, or possess indecent photographs or pseudo-photographs of a child; a “pseudo-photograph” is an image, created by computer graphics or any other means, that resembles a photograph and can include electronically stored data that can be converted into such images. These offences are arrestable offences, which may be tried either summarily or on indictment and attract a sentence of up to six months' imprisonment and/or a fine on level 5.

privacy n. The right to be left alone. The right to a private life as set out in Article 8 of the European Convention on Human Rights is now part of UK law as a consequence of the Human Rights Act 1998. The right includes privacy of communications (telephone calls, correspondence, etc); privacy of the home and office; environmental protection; the protection of physical integrity; and protection from unjustified prosecution and conviction of those engaged in consensual nonviolent sexual activities. This right is a qualified right; as such, the public interest can be used to justify an interference with it providing that this is prescribed by law, designed for a legitimate purpose, and proportionate. Public authorities have a limited but positive duty to protect privacy from interference by third parties.

proportionality n. 1. A principle of the European Union ensuring that a legislative measure is introduced at EU level only when it is appropriate to have a measure at that level, and that when local legislation is all that is needed, this will be encouraged. See also subsidiarity. 2. A central provision of the European Convention on Human Rights. It applies particularly to the qualified rights and where the expression “necessary in a democratic society” is contained within the article. Whether or not such a right has been violated will depend on whether the interference with the right is proportionate to the legitimate aim pursued by that interference. Thus even if a policy that interferes with a Convention right might be aimed at securing a legitimate purpose (e.g. the prevention of crime), this will not in itself justify the violation if the means adopted to secure the purpose are excessive in the circumstances.

right to life A right set out in Article 2 of the European Convention on Human Rights and now part of UK law as a consequence of the Human Rights Act 1998. The right to life does not make the use of the death sentence unlawful (but see capital punishment). Article 2 makes unlawful the use of lethal force where the use of force was greater than that which was absolutely necessary (this is a higher test than imposed by section 3 of the Criminal Law Act 1967). The right to life also imposes a duty on public authorities to take reasonable measures to protect life from threats from third parties. Article 2 also imposes a duty to ensure that any investigation of a death caused by a public body is independent and effective.

torture n. Under section 134 of the Criminal Justice Act 1988, the offence committed by a public official (or someone with the official's acquiescence) of intentionally inflicting severe physical or mental suffering on any person anywhere in the world. It carries a maximum sentence of life imprisonment. Under this Act, the accused had a defence if he proved that his conduct was legally authorized, justified, or excusable. However, the prohibition on torture as set out in Article 3 of the European Convention on Human Rights is now part of UK law as a consequence of the Human Rights Act. This right is an absolute right, and torture can never be justified as being in the public interest, no matter how great that public interest might be. Public authorities have a limited but positive duty to protect this right from interference by third parties.

Source: A Dictionary of Law. Ed. Elizabeth A. Martin. Oxford University Press, 2002. Oxford Reference Online. Oxford University Press. 3 January 2006 www.oxfordreference.com

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Oxford University Press, Online Resource Centre, Selected Human Rights & Civil Liberties Terms.

Selected Human Rights & Civil Liberties Terms