11. Fundamental human rights

What a right is

A legal right: In law a right is an advantage given to a person by the rules of a legal system. It must be traced to a rule of law.

Section 15: Every person in Sierra Leone is entitled to the fundamental rights and freedoms of the individual, whatever his race, tribe, place of origin, political opinion, colour, creed or sex, subject to respect for the rights of others and the public interest.

The right to life

Section 16(1): No one shall be deprived of life intentionally except in carrying out the sentence of a court for a criminal offence of which he has been convicted. Sierra Leone abolished the death penalty in 2021, so this exception no longer applies in practice.

Section 16(2) exceptions: A death is not a breach of the section if it results from force that is reasonably justifiable to defend a person from violence or to defend property, to make a lawful arrest or prevent escape, to suppress a riot, insurrection or mutiny, or to prevent a crime, or from a lawful act of war.

The most basic right: In R v Secretary of State for the Home Department, ex parte Bugdaycay (1987) Lord Bridge called the right to life the most fundamental of all human rights, so that decisions putting life at risk call for the most anxious scrutiny.

Personal liberty

Section 17(1): No one shall be deprived of personal liberty except as authorised by law in listed cases. They include unfitness to plead, a court sentence, contempt of court, bringing a person before a court, reasonable suspicion of a crime, the education or welfare of a person under 18, preventing the spread of an infectious disease, the care of a person of unsound mind or addicted to drugs or alcohol, and preventing unlawful entry into or carrying out lawful removal from Sierra Leone.

Every detention must be justified: In Liversidge v Anderson (1942) Lord Atkin, dissenting, said that every imprisonment without trial and conviction is prima facie unlawful, and the person who imprisons must justify it. His dissent is now regarded as the better statement of the law.

No power over a wife: In R v Jackson (1891) the Court of Appeal held that a husband has no right to imprison his wife to force her to live with him.

Arrest

What an arrest is: In Hussien v Chong Fook Kam (1970) Lord Devlin explained that an arrest occurs when a police officer states that he is arresting a person, or uses force to restrain him, or makes it clear by words or conduct that he will use force if needed to stop him leaving. Reasonable suspicion is less than prima facie proof.

The statutory rules: In Sierra Leone powers of arrest are set out in the criminal procedure legislation. Students should check the section numbers in the current Act. The core rules are that only reasonable force may be used, that a person arrested by a private citizen must be handed to the police without unnecessary delay, and that police may arrest without warrant on reasonable suspicion of a serious offence.

Private citizens: In Walters v W. H. Smith and Son (1914) a private person who arrested without a warrant was liable because the offence he suspected had not in fact been committed. A private citizen's power depends on an offence actually having been committed.

Reasons for arrest: Under section 17(2)(a) a person arrested must be told in writing, in a language he understands, the facts and grounds of his arrest at the time or within twenty-four hours. In Christie v Leachinsky (1947) the House of Lords held that a person is entitled to know why he is being arrested. In DPP v Hawkins (1988) the duty to give reasons arose as soon as it was practicable.

Access to a lawyer: Under section 17(2)(b) a detained person must be told at once of the right to a lawyer, and must be allowed to instruct one and talk to him in confidence. In R v Samuel (1988) a confession was excluded because the police wrongly refused access to a solicitor.

Time limits: Under section 17(3) a person arrested and not released must be brought before a court within ten days for capital offences, offences punishable by life imprisonment and economic and environmental offences, and within seventy-two hours for other offences. Otherwise he must be released, unconditionally or on reasonable conditions.

Habeas corpus: A person unlawfully detained may seek a writ of habeas corpus, which orders the person holding him to bring him before the court and justify the detention. If there is no lawful justification he is released. False imprisonment gives a separate claim for damages.

Freedom of movement

Section 18(1): Everyone has the right to move freely throughout Sierra Leone, to live anywhere in it, to enter and leave it, and not to be expelled.

Limits: Restrictions are allowed if they follow lawful detention, or are reasonably required in the interests of defence, public safety, public order, public morality, public health or the conservation of natural resources. Other limits relate to non-citizens, public officers and the armed forces, extradition, and stopping a person suspected of a crime from leaving.

Protection of property

Section 21: No property may be compulsorily taken unless the taking is necessary for public purposes such as defence, public safety, public order, public health or town and country planning, the necessity justifies the hardship to the owner, and the law provides for prompt payment of adequate compensation and access to a court.

Prerogative cannot avoid compensation: In Attorney-General v De Keyser's Royal Hotel (1920) the Crown took over a hotel in wartime. The House of Lords held that because a statute covered the field and provided for compensation, the Crown could not use the prerogative to take the property without paying.

Freedom of expression

Section 25(1): No one shall be hindered in his freedom of expression: to hold opinions, to receive and impart ideas and information without interference, and freedom from interference with correspondence. It also covers freedom to own and run the media and academic freedom.

Limits: Laws are allowed if they are reasonably required in the interests of defence, public safety, public order, public morality or public health, or to protect the reputation and rights of others, prevent disclosure of confidential information, maintain the authority and independence of the courts, or regulate broadcasting and telecommunications. In 2020 Parliament repealed the criminal libel provisions of the Public Order Act 1965.

Expression in prison: In R v Secretary of State for the Home Department, ex parte Simms (2000) a blanket ban on prisoners giving interviews to journalists about their convictions was unlawful.

Defamation: The civil law of defamation protects reputation. A statement is defamatory if it lowers a person in the estimation of right-thinking members of society (Sim v Stretch, 1936) or causes him to be shunned or avoided (Youssoupoff v MGM, 1934).

Confidence: In Attorney-General v Guardian Newspapers (No 2) (1990), the Spycatcher case, the House of Lords accepted that a former security officer owed a lifelong duty of confidence. But because the book had already been published worldwide, it refused to continue the injunctions against the newspapers.

Assembly and association

Section 26(1): No one shall be hindered in his freedom to assemble and associate, and in particular to form or belong to political parties, trade unions and other associations.

Limits: Laws are allowed for defence, public safety, public order, public morality, public health, essential services, the rights of others, restrictions on public officers and the armed forces, and the registration of political parties.

Policing meetings: In Thomas v Sawkins (1935) police were held entitled to enter and stay at a public meeting held on private premises because they reasonably believed a breach of the peace was likely.

Enforcement

Section 28: A person who alleges that his rights under Chapter III have been, are being or are likely to be contravened may apply to the High Court for redress. Appeals lie to the Court of Appeal and then the Supreme Court.