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Oxford Bcl Criminal Justice, Security And Human Rights Notes

BCL Law Notes > Criminal Justice, Security, & Human Rights Notes

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CRIMINAL JUSTICE, SECURITY AND HUMAN RIGHTS
POSITIVE OBLIGATIONS
ECHR
Art 1: The High Contracting Parties shall secure to everyone within their jurisdictions the rights and freedoms defined in this Convention.

ACHR
Art 1: The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms,
without any discrimination for reasons of race, colour, sex, language, religion, political or other opinion,
national or social origin, economic status, birth, or any other social condition.

RIGHT TO SECURITY
Moral and Political ClaimsLazarus argues that the arguments supporting the moral and political claim to a human right to security do not take sufficient account for the potential for a right to security legitimating coercive overreach.

Blackstone views the right to security as a consequence of the social contract in which State gives security to individuals in return for restrictions of their natural liberty.

Shue sees the right to security as a meta-right - without it all other rights would be incapable of realization (sees liberty as having smaller role than security)  instrumental claim.

Fredman draws on capabilities theory to justify the right to security as essential to the exercise of autonomy and self-realisation.Lazarus' view is closer to Locke's  views absolute power as the greatest threat to the security of individuals - THUS power must be constrained by law.

If there is a right to security  it must be balanced within a hierarchy of rights which places liberty, dignity and equality firmly at its apex (Lazarus).

Vagueness and Coercive OverreachAs persuasive as the argument for the State's duty to provide security is  the problem is to be able to know where it ends (Ashworth).Lazarus is concerned with the vagueness and coercive overreach of the right to security.

Consequences flow when we transfer the moral claim to the legal claim (Lazarus) - eg it invites a specific form of hard-edged coercion targeted to specific individuals.

1 The coercive function operates through the prism of legality and proportionality  States justify activities in pursuit of legitimate aims in light of human rights.

THUS human rights aren't operating as limits on State coercive activity - BUT as a requirement for the activities  Shue's meta-right theory coupled with his thin conception of liberty provides more ammunition to the Security State than he might have anticipated (Lazarus).

Cf. German Aviation Case - dignity as a meta-right in German Constitution  not as problematic because doesn't lead to coercive overreach in the same way.Lazarus does not believe we should have a meta-right to security  security refers to a factual state - it is a feeling, but it doesn't provide you with a value.

Concerned that a meta-right to security will become a right that grounds the right to other things and will automatically engage the most extreme coercive activity in response.

Waldron opposed to the idea of meta-rights - risk that focusing on security as a precondition to exercise of all rights might steer us away from meaningful enjoyment of other rights (Lazarus).

Lazarus warns that the confusion between the instrumental and non-instrumental value of security risks securitizing other rights.THUS - right to security aids in legitimization of coercive activities - has become a rhetorical apparatus.

Righting security: human rights language  securitization of human rights  politicians placing right to security above all other rights (Lazarus).

VAGUENESS OF POSITIVE OBLIGATIONSTaking rights seriously means taking duties seriously (Shue) - BUT the concern with positive obligations is their tendency to vagueness and ability to lead to coercive overreach (Lazarus).

A clear framework is needed because it is inviting coercive action  the law has no clarity and does not legitimate undermining the quality / rule of law question.Not all positive obligations lead to coercive overreach  porousness of the discussion - and no in principle objection to positive obligations - BUT need to provide clear framework of legal clarity and countervailing rights and interests.South African Supreme Court provides potential solution in Rail Commuters Action Group - held that positive obligations cannot be overly-wide or all-encompassing  as this would make them overly burdensome and impossible to enforce in practice.

Cited the principle of accountability as one of the key principles in determining the scope of positive obligations  it doesn't tell the state what to do (as that would infringe on legislative function of the court) but it does ask them to explain why it is doing what it is doing.

2 CONTENT OF POSITIVE OBLIGATIONS-

Mavronicola classifies as four types of positive obligations:

Framework duties;

Operational duties;

Investigative obligations; and

Duties of redress.

Building on Mavronicola's framework - categorised into ex ante prevention duties (framework and operational) and ex post quasi-prevention duties (investigation, prosecution and redress).

Overlap between the positive obligations (eg framework and redress both involve judiciary).

EX ANTE PREVENTION DUTIES
Framework DutiesGeneral obligation  requires States to put in place effective criminal law provisions and enforcement machinery (Ashworth).

Right to LifeFor State actors - legal framework and enforcement mechanism to reflect the absolute necessity test in reducing as far as possible the circumstances in which life is taken (Mavronicola) - eg through stringent regulation of police use of force (McCann; School Siege Case).For both State / non-State actors - legal framework and enforcement oriented towards preventing,
deterring and redressing wrongful takings of life.

CottonRecognised a duty (stemming from the right to life) on the State to organize the entire

Fields

government apparatus and all the structures through which public authority is exercised

Case
Rantsev

to ensure by law the free and full exercise of human rights.
Framework obligation (stemming from Art 2) requires State to put in place effectivecriminal provisions to deter the commission of offences against the person backed up by
Oneryldizv Turkey

law enforcement machinery for the prevention, suppression and punishment of breaches.
Positive obligation to take all steps to safeguard lives incl. duty on state to put in place legislative and administrative framework designed to provide effective deterrence against threats to right to life  applies in context of any activity (public or not) where right to life might be at stake - industrial activities by nature were dangerous.This case was bad governance (not intentional)  movement towards criminalisation.Child abuse / reasonable chastisement defence - positive obligation to secure Art 3 right

Child Abuse
A v UK

3 via effective deterrence.In some situations - may be duty to remove defence (Ashworth).Clear extension of the criminal law (Lazarus).

Human Trafficking
SiliadinArt 4 must be read as imposing positive obligations on the State to enact criminal law provisions and applying provisions in practice.

Rantsev
MSAEmphasised that Art 4 enshrines one of the fundamental values of democratic societiesand makes no provision for exceptions or derogation.
Art 4 protections must be practical and effective + go beyond criminal law measures incl. requirements to regulate businesses and immigration in context of trafficking.
Goes beyond preventative obligation which requires awareness of real and immediate risk to identified individual of being trafficked - emphasis on knowledge of risk
(Lazarus).Lazarus argues that the positive obligation arising out of Art 4 must be executed in a way that also takes into regard the rights of the defendant's right to liberty  MSA
preventative and risk orders involve a deprivation of liberty - Guzzardi makes clear that
Art 5 doesn't include exception for preventative detention of any kind.

Operational DutiesSpecific forward looking and risk based obligation  test is whether there was a real identifiable threat, the State knew or ought to have known and failed to take operational measures to prevent.
It is a question of taming the beast created in Osman - eg police now give "Osman warnings".
NB: Looks like a negligence test - tortious obligations (Osman; DSD; Michael).

Institutional ramifications for police practice is coercive  clarity is important (Lazarus).

Positive obligations must not present disproportionate burdens (Lazarus).

Right to LifeRequires state to take reasonable measures to protect individuals from particular risk to life which is in actual or imputed knowledge of authorities (Mavronicola).

ECtHR accords degree of deference to state authorities' superior institutional competence in determining operational action required (Mavronicola).As there is an inevitability about death following on from birth  intervention could only reasonably be required in respect of acts, omissions or situations which could be expected to hasten it (McBride).

4 

ECtHR has adopted an exacting causal test - real and immediate test (to avoid imposing an impossible or disproportionate burden on authorities (Osman).

Principle of proportionality will be a legitimate constraint on what protective action might be expected  preference can be given to least disruptive but still effective response (McBride).

Ashworth notes that Art 2 is subject to a strict proportionality analysis  permits killing to prevent violence (but not to prevent minor violence).

Rodriguez
Osman

Mavronicola notes that this is stricter than the necessary in a democratic society test.Lack of due diligence to prevent violation by private person imputes responsibility toState.
ECtHR developed a wide-ranging duty  set aside UK exclusionary rule which prevented police from be held liable for negligence arising from failure to investigate crimes.Acknowledged difficulties involved in policing modern societies + unpredictability of human conduct + operational choices which must be made (priorities and resources) 
the obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities - eg rejected family's complaint that police could have learnt more of teacher's intention if they had searched home or detained under Mental Health Act.Obligation only arises when authorities knew or ought to have known the existence of a real and immediate risk to life of an identified individual AND failed to take measures within powers which, judged reasonably, might have been expected to avoid that risk -

SchoolSiege

NB: duty informed by tortious notions of causation and responsibility.
Despite the potential expansive scope of the duty in Osman - EctHR jurisprudence has given rise to clearly identifiable and delimited positive duties, until School Siege Case.

Case

In the School Siege Case the ECtHR gets more and more involved with police decision-making - whole inquiry in and of itself (cf. DSD v UK).Important case for preventative use of force .Two different obligations arising from right to life:

1. negative to constrain use of force; and

2. positive to protect the life of the hostages.Cited Osman test - BUT noted some cases raise obligation to afford general protection to society  the authorities knew the existence of real and immediate risk to life.

"In the face of a threat of such magnitude, predictability and imminence, it could be reasonably expected that some preventive and protective measures would cover all educational facilities in the districts concerned and include a range 5 of other security steps, in order to detect, deter and neutralise the terrorists as soon as possible and with minimal risk to life."ECtHR essentially said that States can pre-emptively use lethal force as long as it prevents or minimizes known risk.Despite acknowledging that police must be afforded a degree of discretion in taking operational decisions, held:

"In the face of an urgent need to avert serious adverse consequences,
whether the authorities choose to use a passive approach of ensuring security of the potential targets or more active intervention to disrupt the menace, is a question of tactical choice. However, such measures should be able, when judged reasonably, to prevent or minimise the known risk. With regard to the above arguments, the Court finds that in the case at issue the
Russian authorities failed to take such measures."Only thing that Russia could have done is used lethal force - to neutralise the terrorists.Operational failures included:

Allowing terrorists to successfully gather, prepare, travel to and seize their target,
without encountering any preventive security arrangements.

No single sufficiently high-level structure was responsible for the handling of the situation, evaluating and allocating resources, creating a defence for the vulnerable target group and ensuring effective containment of the threat and communication with the field teams.

Child Abuse / RapeMavronicola uses the example of the right not to be raped as part of Art 3  positive obligation doesn't extend to providing personal protection at all times.

CottonFields
Case
Z v UK

If State aware of real and imminent risk that the victims would be sexually abused,
subjected to ill-treatment and killed  an obligation of strict due diligence arises.Child abuse reaching severity prohibited by Art 3 - behaviour reported to social services but only acted 5 years later after children placed in emergency care at insistence of mother.

DSD v UKThe State had clearly failed its positive obligation to protect the children from CIDT ofwhich it had, or ought to have had, knowledge (citing Osman).
ECtHR held that there is nothing in its jurisprudence that supports a notion of a charter created for the examination of every judgment / choice of strategy made  only obvious 6 and significant shortcomings in conduct of police / prosecutorial investigation .The ECtHR can't be in control of operational decisions - BUT it can set a threshold of when it is really bad.

Imposing human rights liability because the operation was so bad.

EX POST QUASI-PREVENTATIVE DUTIES
Investigation, Prosecution and Redress DutiesThe investigation must be effective and capable of leading to identification and punishment.

Coercion comes with linking to punishment - eg by itself, investigation into deaths seems fine.Emphasis on not allowing States to abuse rights with impunity (El-Masri; Duran).The function of criminal prosecution is no longer only a public prerogative but also a mechanism of human rights protection - not absolute right to criminal prosecution but right that criminal law mechanisms will be applied without any flaws / culpable failures in the process (Kamber).

Right to LifeDemands investigation into any suspicious death which may involve either direct or indirect state responsibility (Mavronicola).The notion of redress is broader than remedy  more clearly accommodates recourse to both civil and criminal means of redress (Mavronicola).

RodriguezDuty to take reasonable steps to prevent human rights violations and to use means at its disposal to carry out a serious investigation of violations committed - to identify those responsible, impose the appropriate punishment and ensure adequate compensation.
NB: Take reasonable steps / means at its disposal - duty of means (Da Silva).

The duty to investigate isn't breached merely because the investigation doesn't produce a satisfactory result - BUT it must be undertaken in a serious manner / not as a mere formality preordained to be ineffective.

StreetIf acts of private parties violating Convention aren't seriously investigated  they areaided in a sense by the State - THUS making it responsible.
The State has a positive obligation to identify and punish human rights violations.

Children

Case

Judicial proceedings conducted - BUT as those responsible weren't punished
(because not identified / penalised by judicial proceedings)  State violated because it had not punished the perpetrators.

OneryldizAllowed de facto impunity that allowed / encouraged the continuation of violations.
Rubbish tip in slum killed residents - Court found causal link between accident and 7

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