Police are the guardians of law

LLB Qualifiying Law Degree / Civil Liberties and Human Rights

RUNNING HEAD: Assignment 0
CIVIL LIBERTIES AND HUMAN RIGHTS

ASSIGNMENT 1
Table of Contents
Answer 1(a)............................................................................................................................2
Issue....................................................................................................................................2
Rule....................................................................................................................................2
Application.........................................................................................................................3
Conclusion..........................................................................................................................3
Answer 1(b)............................................................................................................................4
Issue....................................................................................................................................4
Rule....................................................................................................................................4
Application.........................................................................................................................6
Conclusion..........................................................................................................................7
Answer 2....................................................................................................................................8
Bibliography.............................................................................................................................15
Primary Sources...................................................................................................................15
Cases................................................................................................................................15
Statutes and Statutory Instruments...................................................................................16
Secondary Sources...............................................................................................................16
Books................................................................................................................................16
Journal articles.................................................................................................................17

ASSIGNMENT 2
Answer 1
Answer 1(a)
Issue
Whether the police officer clueless took measures to keep things under control?
Rule
Human rights are a unit of inalienable, indivisible and undeniable rights available to
every person being born. But still Human Right often happen to be the first casualties every
time a crisis occurs like armed conflicts, civil wars, natural disasters, civil wars and similar
threats, the first blow that comes is to limit the liberties and restrict the human rights of
individuals1.
Police are the guardians of law and they are provided with specific powers to maintain
peace and harmony and prevent crimes. Each and every arrest violates the fundamental
human right of a person if it is done without any reasonable cause and any reasonable
explanation.2 Section 1 provides power to a constable who may stop and search a person or
vehicle if the police officer is suspicious or has grounds to believe that he will discover stolen
or prohibited articles in possession of the person or vehicle. 3 The Police officer can detain a
person based on the search or if the person does not co-operate and if police officer becomes
suspicious of an activity or a person he is also given the power to arrest a person. Section 24
of the PACE4 defines the grounds on which a police officer can arrest for eg, where a person
1 Hoffman David , Rowe Jermyn John ‘Human Rights in the UK: An Introduction to the Human Rights Act
1998’ (Pearson Longman, 2006 ) 412.
2 Alastair Brown N ‘Human Rights Act 1998’ (The University of Michigan, 2008) 146.
3 Police and Criminal Evidence Act 1984 s.1
4 ibid s.24.

ASSIGNMENT 3
refuses to show his name and address when asked by a police officer because he is suspicious
about the person.5 These powers are provided for early detection and prevention of crime.
Section 28 elaborates grounds which if not followed would make the arrest unlawful. 6
Article 9 of UDHR also warrants against any such arrest which is done arbitrarily7 and
without lawful reason or without following the due process of law.
Application
In this case the police officer followed the stop and search based on the information
that he received a day before of theft being committed in a shop. The action of Police officer
can be described as trying to take control of the situation before the parade so he inquired
from the two persons first but when they did not cooperate he immediately arrested the two
people to avoid any commotion that may rise in the parade.
Here the police officer suspected that the two people were the same robbers and that
they have the stolen articles. This can be described with an example of a man running with a
woman’s handbag, in such a case it speaks by itself that the bag may be stolen. So if a officer
arrest based on the instincts and situation he may not need to investigate the matter first but
may perform the investigation once he arrests. The detained person may be let go once the
search reveals no such item.
Conclusion
Thus if we say that the police officer in this case also arrested the two people based on
his instincts and made an immediate arrest and till this moment the police officer had handled
the situation pretty well but after arresting he made no further investigation nor did he inform
5 The Police and Criminal Evidence Act 1984.
6 ibid
7 The Universal Declaration of Human Rights, 1948 Art.09.

ASSIGNMENT 4
the two people anything about their arrest. The police officer has to have reasonable grounds
as specified under the statute for arresting a person and must believe that the arrest is
necessary and not just because there exists reasonable grounds of suspicion8.
But the problem arises when these provisions are merely used as a show of power
and rather than being used for legitimate purposes. For e.g even after a police officer
discovers that there is no apparent article with the detained people he still keeps them in
custody or detaining such people who are not suspicious. Such instances induce public to
break law and be less cooperative with police.
Answer 1(b)
Issue
Whether the Police officer performed legal arrest when he stopped and searched the
two red shirt man?
Rule
The Universal Declaration of Human Rights under Article 1 provides that each human
being is born free and equal.9 Further Article 3 of UDHR protects the life, liberty and security
of every person and Article 9 protects a person from arbitrary detention, arrest or exile.
Similarly, Article 5 of the ECHR also protects the security and liberty of a person, it provides
that the deprivation of liberty of a person should not be unjustified and arbitrary.10 This has
been ensured by The Human Rights Act 1998 that all human beings have inalienable right to
8 The Police and Criminal Evidence Act 1984.
9 The Universal Declaratin of Human Rights 1948, Article 1.
10 The European Convention on Human Rights, 1948

ASSIGNMENT 5
enjoy liberty and security.11 It is a human beings undeniable right to be able to roam freely
anywhere in any part of the world. 12 Section 1 of the PACE describes the situation when a
police officer can conduct stop and search on a person.13 As per the section, he is authorised
to detain such person a reasonable suspicion that a person has in his possession stolen articles
and may even arrest if the person does not co-operate.
The statutory provides for grounds of Arrest under Section 24(5) and explains the
circumstances when a constable is authorised to arrest without a warrant14 However a
constable can perform summary arrest only when these grounds are satisfied.15
In Mc.Kay v. the United Kingdom16 the courts held that “It is not deemed lawful if the
arrested person has not been informed about his arrest even after his arrest. An arrest by a
police officer without any justifiable ground of arrest is false imprisonment.17In false
imprisonment malice plays no role, the police officer may not have any actual malice behind
arresting a person.18 The court in Khlaifa and others v. Italy held that there should be no
deprivation of liberty unless it suffices the grounds mention under Article 5 and Article 1 of
ECHR.19
In Parker v. Chief constable of Essex20 in this case the court laid down that failure to
provide correct information to the person who is arrested at the time of arrest would attract
nominal damages.21 The law states that even if the grounds of arrest are too obvious then also
11 The Human Rights Act, 1998.
12 Dominic McGoldrick, “The Boundaries of Justiciability”, International and Comparative Law Quarterly
(2010) 981-1019.
13 Supra note 3.
14 The Police and Criminal Evidence Act 1984 s.24.
15 The Police and Criminal Evidence Act 1984 s.24(5).
16 (2006) ECHR 820.
17 Johnson v. Norfolk & W Ry Co. (1918)82 W.Va, 97 S.E. 189.
18 Beckwith v. Bean, (1879) U.S. 266.
19 (2016) ECHR 564.
20 (2018) EWCA 2788 (Civ)
21 Ibid.

ASSIGNMENT 6
it is the duty of the police officer to lay down before the arrested person all the grounds of
arrest.22
Furthermore under the Corporate Manslaughter and Corporate Homicide Act 200723
(hereinafter referred to as the CMCHA) an organisation including the police authorities is
convicted of corporate manslaughter if there amounts a gross breach of their duties. The
breach of duty includes duty of care towards the deceased in custody. The CMCHA applies to
deaths caused in custody due to shortfall in duty of care towards the detainees.
Application
The Police officer clueless here arrested the two people on suspicion of them being
the two robbers that he was informed about so he immediately arrested them based on that
suspicion but he did not inform them of the grounds. The stop and search procedure under
Section 1 only allows a police officer to search and detain a person. As per Section 24(5) a
police officer can only make summary arrest only in the above defined situation, since such
situation did not exist here thus the summary arrest was not a reasonable arrest as he only had
a suspicion of them containing the stolen articles therefore he had the power to detain and
search their belongings.
The other violation of human rights was that the police officer did not even inform the
persons arrested of the grounds on which they were being arrested and conducted an arbitrary
arrest violating his right to life liberty and security. Thus applying the definition carved out
by the court in Johnson v. Norfolk & W Ry Co.24 the two people remained in false
imprisonment after they were detained for 12 hours without even knowing the grounds of
22 The Police and Criminal Evidence Act 1948 s.28.
23 The Corporate Manslaughter and Corporate Homicide Act 2007 came into force on 6 April 2008.
24 Supra note 12.

ASSIGNMENT 7
arrest. As pointed out by the court in Parker v. Chief constable of Essex25when grounds of
arrest are not informed to the person detained it amounts to wrongful arrest and nominal
damages are awarded to the people detained in wrongful confinement. Likewise Corporate
Manslaughter and Corporate Homicide Act 2007 also prescribe for penalty in cases of grave
injustice being done to people restrained in custody.
Conclusion
The police officer did not effectively utilise his power of stop and search moreover he
violated Article 5 of European Convention on Human Rights, along with that he grabbed
them without informing them about the grounds of their arrest. As a procedure the police
officer had to inform the persons he was arresting before making an arrest but since there was
a parade to happen and the police officer acted on his impulses and arrested the two men for
avoiding any chaos so he is justified in arresting given the situation. But even after making
the arrest the two people were not informed about why they were arrested for a period of 12
hours makes this arrest an unlawful arrest and a false imprisonment. When a police officer
makes an arrest it is his duty to inform the arrested people about their rights and the grounds
for which they are arrested if not immediately during the arrest then after making the arrest.
But in this case the police officer did not inform either during the arrest nor after the arrest
which makes this a case of violation of human rights of the two people and gross misuse of
power of police officials. When a police officer makes an unlawful arrest he can be sued for
monetary charges as there is a violation of civil rights of the individual. The victim also has
an option to file a complaint with the police department detailing about the unlawful arrest.26
25 Supra note 15.
26 Scofield v. Critical Air Medicine, Inc.,(1996) 45 Cal. 990.

ASSIGNMENT 8
However imprisonment means that if a misdeed has to be prevented there has to be
certain application of force by the police authorities in a democratic way and even while
making the arrest the rights of the person arrested should be protected by all means.27 For
instance if there is suspicion of apparent threat to the property of a person or to life of a
person or children in such cases it seems justified for the police officers to make an
immediate and summary arrest without warrant and even without informing the grounds of
arrest.
Thus in this case where the police officer clueless arrested the two men on getting
suspicious because of the red shirt that they were wearing and who did not show their bag
when the police officer asked them to show it to him is understood to be an illegal arrest. As
the two men, even after they were being taken into custody, were not informed of their
grounds of arrest by the police officers till after a period of 12 hours. This only shows a gross
misuse of the power allocated to the police officers and reckless and negligent duty of care
towards the person taken in custody as it clearly violates the rights of the two people arrested.
As it is a right of the arrested person to inform their relatives of their arrest and also they have
a right to call a lawyer of their choice in the event of arrest but here the two men were in
custody for no fault of theirs and were sitting in the police station clueless for a period of 12
hours which is a grave injustice to one’s liberty and violation of fundamental right.
Answer 2
The Human Rights Act 1988(hereinafter referred to as HRA 1988) carried judicial
reasoning to central stage both for the academic commentaries which studies and analyses
them and the decisions of higher courts which interpret them28. This results from the fact that
27 Bamber V United Kingdom, (1997) ECHR 11.
28 Nicolas Kang –Riou ‘Confronting the Human Rights Act’ (Routledge, 2012) 340.

ASSIGNMENT 9
while enacting it Parliament placed much reliance on the interpretative function of the courts
by creating a power and imposing duty under the Sections and 4 of HRA 1998. Section 3
reads and gives effect to the provision and the intent of legislation and decides whether the
interpretation is compatible with what the convention intends and section 4 makes a
declaration to the effect of their incompatibility with the convention29.
The HRA 1998 is incorporated from European Convention on Human Rights30
(hereinafter referred to as ECHR) and all the rights and duties are derived from ECHR.
Section 3 and section 4 of HRA 1998 act are also referred as interlocking provisions31 where
section 3 lays down that” the legislation must be intrepreted in a way that is conducive to the
intent of convention and be given effect in a way which is compatible with the rights
enshrined in HRA 1998”32 and if it cannot be interpreted in a way it has been designed to then
as per Section 4 of the HRA 1988 which empowers the courts to declare about the
incompability of the section. But only if the court is satisfied on the incompability of the
provision with the legislation it can declare about the incompatibility.33
The court may under section 3 of the HRA while interpreting the intent also
sometimes departs from the original legislative intent of the parliament.34 Since the courts
have not been consistent in their interpretative approach and have sometimes engaged in
“legislation from the bench”35. In R v A36 the house of lords under the ambit of section 3 of
HRA 1998 interpreted the exception provided to section 41 of the Youth Justice and Criminal
29 Roger Masterman ‘The Separation of Powers in the Contemporary Constitution: Judicial Competence and
Independence in the United Kingdom’ (Cambridge University Press 2010) 267.
30 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human
Rights, as amended) Article 10.
31 David Bonner, Helen Fenwick and Sonia Harris-Short, ‘Judicial Approaches to the Human Rights Act’ (2003)
52 International & Comparative Law Quarterly 549.
32 The Human Rights Act 1988 s.3
33 The Human Rights Act 1998 s. 4.
34 Supra note5.
35 Ibid.
36 (2001) UKHL 25.

ASSIGNMENT 10
Evidence Act 199937 by creating an exception and barring all the earlier evidence in a rape
case of sexual history. Moreover it not only breached the principle of fair trial as envisaged in
Article 6 of the Human Right Act38 (Article 6 of the Convention provides that “it is unlawful
for a public authority to act in a way which is incompatible with a convention right.”) but
was also an approach which went against the spirit of law making and interpretation.
Similarly in another case39 section 11(2) of the Terrorism Act was interpreted in a way that
was not the intent of the legislature. The Terrorism Act 40 imposed a reverse burden that is
here the onus of proof is not on the plaintiff but the defendant to prove that he was not a part
of the activities that were carried out by an organisation. The intent of the parliament here is
clear that legal burden in imposed on the defendant but the courts read down section 11(2)
and held that it is not the legal burden but rather the evidentiary burden that is placed upon
the defendant and once again defeated the intent of parliament and went beyond it by their
means of interpretation.
The Courts as per section 3 of the HRA 1998 are not entitled to legislate but inly
interpret the provision as per the intent of legislature. The court of Appeal in Re S(Minors)41
held that since the Childrens Act 1989 is incompatible with Article 642 so a new provision
was incorporated by the court which identified the essential care plan of children. This
approach of the court was highly criticised by Lord Nicholls and it was held that courts are
enshrined with the power to interpret the provisions , the power of enactment or amendment
is only provided to Parliament and both the bodies should not encroach upon the powers
granted to either of the bodies. 43 And thus the scheme introduced by the court was held to be
37 The Youth Justice and Criminal Evidence Act 1999.
38 The Human Rights Act 1988 Art.6.
39 Attorney General’s Reference (2004) UKHL 43.
40 The Terrorism Act, 2000 s.11(2).
41 [2002] UKHL 10.
42 Supra note 10.
43 Alison L Young ‘Parliamentary Sovereignty and the Human Rights Act’ (Bloomsbury Publishing, 2008)
200.

ASSIGNMENT 11
bad in law and was held that the courts thev exceeded their judicial competence in enacting
and amending the provision.44
In R(Anderson) v Secretary of State for Home Department 45 the Home Secretary had
set a tariff which exceeded the limits imposed by judiciary but was permitted by the
legislation itself. But here Lord Bingham refused to interpret under section 3 of the HRA
1998 and held that such an interpretation of the legislation would lead to “judicial vandalism
and not judicial interpretation.”
The Parliament rejected this practise of seizing into ‘reasonable interpretation’ and
directed the courts to resort to an interpretation that rooted with the spirit of Convention
rights and not to go beyond its intent. Section 3 is not available in situations where the
interpretation itself is contrary to the expressed intent of the legislature.
In Social policy matters the inconsistency in the approach of courts is again no
different. In Bellinger v Bellinger46 a transgender woman sought a declaration relying upon
section 3 that she contracted a lawful marriage with a man. But the courts in this case held
that “ a fundamental change in the concept of marriage would have to be undertaken if an
interpretation other than that which the convention intends is adopted.”. But in Ghaidan v
Godin-Mendoza47 a bolder approach was taken and a bolder interpretation was awarded to
the Rent Control Act 1977. The Rent Control Act 1977 provided succession rights to a
surviving husband/wife but nowhere in the legislation it was mentioned to include a
homosexual partner as it constituted a breach of Article 8. 48 The House of Lords adopted a
two-step approach. First they interpreted the paragraph 2(2) of Schedule 149 which ‘read two
44 The Childrens Act 1989
45 [2002] UKHL 46.
46 (2003) UKHL 21.
47 (2004) 2 AC 557.
48 Human rights Convention 1988 Art.8.
49 The Rent Control Act 1977.

ASSIGNMENT 12
people living together as wife or husband, whether it included cohabitating same sex couples
and whether it violated the Convention rights. The House of Lords in this case held
unanimously that Paragraph 2(2) of Schedule 150 discriminated between same sex couples
and was violative of their rights under Article 14 read with Article 18.
After the leading case of Ghaidan51 the courts settled on a two-step understanding of
Section 3 which allows them to interpret the provision which already is unambiguous. The
first step is whether the legislation violates the convention rights, if infringement is prima
facie established then the courts
Lord Steyn found that Courts had used their interpretative power under Section 3 in
10 cases whereas Courts have made declaration in 15 cases under Section 4.52 These
statistics did raise a question as to whether the powers conferred under HRA 1998 were being
properly implemented as’ principal remedial power’ and that of declaration was being used as
‘measure of last resort’. The courts were expected to adopt that interpretation of the
legislation which was compatible with the Convention. When the powers under section 3
were being used by the courts they were to be used only if that interpretation was compatible
with the legislation and they had strong rebuttable presumption for making that interpretation.
The Section 3 of HRA 1998 is a remedial provision to the interpretative obligation
and it follows from judicial interpretation which is carried out to reach to a legal outcome to
the legal dispute. The judicial duty to do justice to the litigant and provide fair and equitable
application of law is one of the factors influencing judicial interpretation. For instance in the
case of Ghaidan53 the court interpreted the provision in such a way that afforded the
maximum justice to the litigant but for that it had to move beyond the provision as Section 3
50 ibid
51 ibid
52 Ibid.
53 Supra note 18.

ASSIGNMENT 13
lays down that the courts have to interpret the provision as per the intent of convention. But
the courts in order to save the interest of litigant adopted a broader view than that enshrined
by the legislature. In order to provide remedy to individual litigants the court overrides all the
other concerns. Section 3 was provided as a remedial provision and Section 4 as a measure of
last resort but the courts have been using them for more than what they were meant to be.
Section 4 of HRA 1998 is to be used only when the courts is satisfied that a provision is
incompatible and only then it can make a declaration to that effect. But where a legislation in
unequivocal a process interpretation of compatibility with the convention is outside the ambit
of section 3.
While Section 3 is believed to be used in abeyance and section 4 which was only a
measure of last resort is being used constantly, the spirit of law has taken a toll by their
frequent and more than the legislature given intent usage. The HRA model has also been
described as an effective model in a weak form of system by Kavanagh54. Though Judiciary
heavily supports the declaration of incompatibility but an implicit criticism has been levelled
by the Supreme Court in Nicklinson judgement 55 before the Supreme Court. The Suicide Act
1961, was challenged in this case, which made assisted suicide a crime. The bench comprised
of nine judges out of which a majority judges decided that it was institutionally appropriate to
declare incompatibility of the legislation.
It is pertinent to state that the power of declaration under section 4 has strengthened
the judiciary however it has rendered the legislatures passed by parliament redundant as the
intention of parliament does not prevail rather the interpretation adopted by the judges as per
each case which in cases runs broader and even outruns the scope and intent of framers of
legislature. With relation to section 3 it is also argued that it is too strong form of review.
54 Kavanagh A. “What’s so weak about weak-form review?” The Case of UK Human Rights Act 1998.
International Journal of Constitutional Law 13 (2015) 1008-1039.
55 (2014) UKSC 38.

ASSIGNMENT 14
Section 3(1) undermines the original intent and the parliamentary sovereignty in
practise. There are cases like R v Lambert56 where the courts have gone to apply such wide
interpretations which changed the meaning that the legislation intened to make it comply with
the interpretation of convention rights even if the interpretation was inconsistent with the
Parliament’s intention. In R v Lambert 57 as discussed above the house of lords stretched the
interpretation so broad that they imposed evidential burden on defendant irrespective of being
clearly intended that legal burden of proof was to be imposed on the defendant.
Thus the fashion in which section 3 and 4 have been used by the courts overpowers
the original intent of the legislature framed by the Parliament. And the student agrees that the
legislative powers of the parliament were shadowed by the judicial power of Courts, where
they misinterpreted and let their own interpretation prevail rather than what was intended by
the legislature and the reasons were provided by Section 3 and Section 4 which were to make
the provisions compatible with the convention rights.
The course of reforms that judiciary engaged in were criticised by Government and
the Judiciary’s more activist approach was always under scanner and criticised as it tampered
with the use of Section 3. However the courts have to find out interpretation which further the
intentions of legislation and are convention compatible and which do not exceed the
limitations of legislation as the courts have been previously vandalising more often than
interpreting.
56 [2001] UKHL 37.
57 ibid

ASSIGNMENT 15
Bibliography
Primary Sources
Cases
Attorney General’s Reference (2004) UKHL 43
Bamber V United Kingdom, (1997) ECHR 11.
Beckwith v. Bean, (1879) U.S. 266.
Bellinger v Bellinger (2003) UKHL 21
Johnson v. Norfolk & W Ry Co (1918)82 W.Va, 97 S.E. 189
Ghaidan v Godin-Mendoza (2004) 2 AC 557.
Khlaifa and others v. Italy 2016 ECHR 564.
Mc.Kay v. the United Kingdom (2006) ECHR 820.
Parker v. Chief constable of Essex (2018) EWCA 2788 (Civ).
R v A (2001) UKHL 25.
R v Lambert [2001] UKHL 37
Re S(Minors) (Care Order: Implementation of Care Plan) [2002] UKHL 10.
R(Anderson) v Secretary of State for Home Department [2002] UKHL 46
Nicklinson (2014) UKSC 38.

ASSIGNMENT 16
Scofield v. Critical Air Medicine, Inc.,(1996) 45 Cal. 990.
Statutes and Statutory Instruments
The Childrens Act 1989.
The Convention for the Protection of Human Rights and Fundamental Freedoms.
The Corporate Manslaughter and Corporate Homicide Act 2007.
The European Convention on Human Rights 1948.
The Human Rights Act, 1998
The Police and Criminal Evidence Act 1984.
The Rent Control Act 1977
The Youth Justice and Criminal Evidence Act 1999.
The Terrorism Act 2000.
The Universal Declaration of Human Rights, 1948.
Secondary Sources
Books
Brown N Alastair ‘Human Rights Act 1998’ (The University of Michigan, 2008) 146.
Hoffman David , Rowe Jermyn John ‘Human Rights in the UK: An Introduction to the
Human Rights Act 1998’ (Pearson Longman, 2006 ) 412.
Kang Nicolas –Riou ‘Confronting the Human Rights Act’ (Routledge, 2012) 340.

ASSIGNMENT 17
Masterman Roger ‘The Separation of Powers in the Contemporary Constitution: Judicial
Competence and Independence in the United Kingdom’ (Cambridge University Press 2010)
267.
Young L Alison ‘Parliamentary Sovereignty and the Human Rights Act’ (Bloomsbury
Publishing, 2008) 200.
Journal articles
Kavanagh A. “What’s so weak about weak-form review?” The Case of UK Human Rights
Act 1998. International Journal of Constitutional Law 13 (2015) 1008-1039.
Bonner David, Fenwick Helen and Harris-Short Sonia, ‘Judicial Approaches to the Human
Rights Act’ (2003) 52 International & Comparative Law Quarterly 549.
Dominic McGoldrick, “The Boundaries of Justiciability”, International and Comparative
Law Quarterly (2010) 981-1019.