A more recent version of these Echr Articles 2 3 5 6 notes – written by Cambridge/Bpp/College Of Law students – is available here.
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Con & Ad : Human Rights, Articles 2, 3, 5, 6 Article 2---Right to Life Art 2(1)
?????Death penalty: preserved in Art 2(1) but since outlawed (Protocol 6)---so no longer an exception.
?????(1) Duty not to take life
?????(2) Duty to safeguard life
?????(3) Obligation to investigate deaths Art 2(2) (re duty not to take life)? deprivation of life, exceptions for law enforcement:
?????Hybrid right---no derogation, but not absolute---3 ways.
?????Use of force that is 'no more than absolutely necessary'. o (1) Defence of any person from unlawful violence o (2) To effect lawful arrest or prevent escape o (3) to quell a riot. (1) Killing by agents of the state
? McCann, Farrell and Savage v UK (1996), 'death on the rock' o Suspected IRA agents killed on Gibraltar by British security forces. o ECHR, 2 obligations in state's duty: o (1) to investigate all situations in which state takes life o (2) To refrain from unlawful killing (via duty of command, control, training)
? Court will ask:
? (a) whether force used by soldiers was strictly proportionate to aim of protecting persons against unlawful violence;
? + (b) whether the operation was planned and controlled by authorities so as to minimise, to greatest extent possible, recourse to lethal force.
? So duty of command, control & training to minimise risk of deadly force. o Held, in this case: o (1) actions of individual soldiers who pulled the trigger
? no breach (were under control of superior officers, honestly believed necessary to shoot to prevent loss of life). o (2) Control & organisation of overall operation =
breach by UK ? lack of care. Operation as a whole 'controlled and organised in a manner which respected the requirements of Art 2'. o So damages payable to families for unlawful killing (2) Art 2 positive obligation = duty to safeguard
1 ?+ve obligation on State to protect life. Osman v UK: o [re: stalking schoolteacher, killed father and shot child, was Osman v Ferguson, tort case]
o Positive obligation of Art 2, obligation on authorities to take preventive operational measures to protect an individual whose life at risk from criminal acts of another. o If authorities 'knew or ought to have known' of risk to life. o if gap in law ? +ve obligation to plug the gap to safeguard life. o +ve obligation to take preventive operational measures to protect an individual whose life at risk from criminal acts of another. o Basic form of +ve obligation: to have a crim justice system that punishes/deters homicide. o And an operational obligation: to take preventative measures to protect individuals when their life at risk from others or suicide ? but only if state authorities knew, or ought to have known, a real & immediate risk to life ? +
duty to investigate.
?????R(A) v Lord Saville of Newdigate, 'Bloody Sunday' Inquiry, soldiers giving evidence not allowed to give evidence outside Northern Ireland = violation of +ve obligation, protect their right to life. Test: whether 'real possibility of risk' to life of soldiers.
? R (Amin) v SSHD o Inmate of Feltham murdered by cellmate (known violent racist). o HL: o (1) emphasised state's duty to protect life, particularly those in custody---must take 'reasonable care'. o (2) Restated state's obligation to investigate states involving agents of state (Feltham YOI regime had placed deceased in a cell with known violent racist). o Investigation must be public, independent, involve full participation of the family.
? Contexts where positive obligation extended to: o Witness protected o Prisoner protection o Protection of identity (Venables v News Group): News Group in contempt of court if released identities of Venables and Thompson when released with new identities. Because
+ve obligation to protect life.
? State responsibility in war? State obligation to troops?
o Smith, Allbutt & Ellis v MoD: o Re Snatch LandRovers o SC; state can control what equipment they have, and the planning/operation. 2
?o But wide discretion for gov. o Allowed claims to proceed (although failed on facts)---so opens door to gov being liable for soldiers losing life in combat, but regarding equipment and planning/operation, gov/MoD was large discretion Medical law, right to life, Art 2 positive obligation o Withdrawal of treatment, NHS Trust A v M: withdrawal of treatment to someone in persistent vegetative state---
no breach of Art 2, state not under obligation to prolong M's life. o Negligent treatment, Rabone v Pennine Care NHS Trust, high risk of suicide, Trust should have prevented mental patient from leaving o Rabone, mental health problems, asked to be hospitalised because of depression---wanted to leave, left, hung herself. o SC: NHS Trust has assumed responsibility & control over patient once admitted to the hospital; should have detained her under Mental Health act 1983 when she insisted on leaving, due to real risk of suicide. Breach of Art 2, failed to take 'reasonable steps' to prevent risk of suicide, if 'real and immediate' rsk of death. o [note, interest point 1: they waived one-year time limit]
o even though she voluntarily submitted herself---there was a duty on Trust to prevent her leaving. Assisted suicide cases: o R v DPP, ex p Pretty; Pretty v UK o R (Purdy) v DPP o Assisted suicide cannot be authorised: Both argued wanted to choose time of death; both failed---UK does not allow assisted suicide, change must come from Parliament. o CF, R (Burke) v GMC: Art 3 outweighed Art 2, withdrawing treatment was allowed.
(3) Obligation to investigate
? Obligation to investigate state-sponsored killing (McCann)
? Gul v Turkey: Art 2 procedural obligation to investigate circumstances of death.
? Lord Bingham, R (Amin) v SSHD: o Obligation to investigate is not a minor duty. o Re uncle of young man placed in Feltham; killed by cellmate. o Breach of Art 2: need proper investigation into any death where state is an actor.
? Northern Ireland troubles cases, police/army involved---
obligation to investigate: o McCann v UK o (Hugh) Jordan v UK o McKerr v UK o Kelly & Others v UK 3
o Shanaghan v UK o All above: violation of Art 2, flawed inquest into the killings. These cases show, requirements of investigation: o (1) independent & impartial investigation o (2) State should act on own initiative o (3) should involve the family as much as possible o (4) clear outcome & recommendations ? future prevention of systemic failures. Al-Skeini v UK: the investigation element extended extraterritorially: UK required to investigate deaths of 6 Iraqi citizens. Armandi Da Silva v UK, re Jean Charles de Menezes: o NO breach of Art 2: UK did a thorough investigation, by Independent Police Complaints Commission (IPCC), CPS, criminal court, Coroner and jury during inquest.
Article 3 - Torture and inhuman or degrading treatment
?????Negative obligation = Absolute right ? no derogation (Art 15).
?????Prohibits (1) torture; and (2) inhuman or degrading treatment (IDT)
?????Positive duty, not absolute: o R (Q) v SSHD: Art 3 imposes a positive duty on PAs, to take action to prevent individuals being subjected to torture/IDT. o Positive obligation under Art 3 not absolute.
?????Conduct of applicant not a factor ? Ireland v UK Art 3 engaged? Need torture or IDT, needs minimum level of severity:
?????Need minimum level of severity to fall within Art 3: Ireland v UK. o Depends on circumstances: duration; physical/mental effects; sex, age and health of victim, etc.
?????Factors to determine whether reaches minimum level of severity to engage Art 3, R (B) v Responsible Medical Officer, Broadmoor Hospital: o Nature & context of treatment. o Manner of execution o Duration o Physical & mental effects. Severity of treatment---2 levels---Higher level = torture
? Torture = aggravated, deliberate, cruel.
? Ireland v UK, distinction between torture and IDT]
o Art 3 clearly imposes a 'distinction'
? a 'special stigma' attached to torture.
? The distinction (between torture & IDT) based on intensity of the suffering
4 ?o Torture = 'aggravated, deliberate' form of treatment causing 'serious and cruel suffering'. So needs particular intensity and cruelty. o Re the Five Techniques used in N Ireland (wall-standing; hooding; intense noises; deprivation of water, food & sleep). o Council of Europe's Commission on HR concluded torture, was accepted by UK gov, but: o ECtHR: not torture: was psychological techniques designed to break the spirit, IDT. o 'aroused in their victims feelings of fear, anguish and inferiority, capable of humiliating and debasing them and possibly breaking their physical or moral resistance'. o [[Ireland: perhaps a reluctance to classify psychological techniques as torture]]. o [[a minority argued: should be torture, if it aims at breaking an individual's will]]. Askoy v Turkey: o Stripped naked; strung up; electrodes on genitals; water thrown over him; beaten at 2.5 hr intervals for 4 days. o Torture---deliberate, cruel, violent. Aydin v Turkey o Raped, beaten, stripped, sprayed with high pressure water. o Torture (even without the rape might have been torture).
? ?? ? Definition, Ireland v UK: o Must attain 'minimum level of severity' to engage Art 3: o involves actual bodily injury or intense physical or mental suffering. o Factors for minimum level: depends on all circumstances, eg duration of treatment, physical or mental effects, and (sometimes) sex/age/state of health of victim. o IDT =
o Inhuman = 'intense physical and mental suffering'. o Degrading: 'arouse . . . feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking an individual's moral and physical resistance'. o 5 techniques = IDT.
? ?? ? Factors re minimum level of severity, Broadmoor Hospital: nature & context of treatment; manner of execution; duration; physical & mental effects (including impact on health of person involved).
? ?? ? Eg, prison conditions:
5 o Napier v Scottish Ministers: re 'slopping out' process---
exacerbated his facial eczema. o = IDT ? based on particular facts, not a blank cheque for prisoners to complain about prison conditions. o CF, R (Spinks) v SSHD: a mandatory life sentence, suffering from terminal cancer = not IDT to keep him in prison ?
medical facilities were available in prison .
? ?? ? Re treatment of asylum seekers, R (T) v SSHD: T an asylum seeker; living at Heathrow begging. Not ITD, the way asylum seekers treated in UK (eg can't work, don't get state benefits)---is a policy based decision.
? ?? ? Sentencing, whole life orders: o Vinter, Bamber and Moore v UK: o 'whole life orders' (never leaving prison) = IDT. o Not life sentences themselves that are problem; but way carried out. Should be opportunity for review if circumstances change significantly. For life sentence to be compatible with Art 3? must be 'reducibility' in the sentence, a clear system of review. No appropriate review mechanism, UK law unclear. o CF, A-G's Ref (No 69 of 2013), CA: held that whole-life tariff regime in UK law is compatible with Art 3. o Confirmed, R v McLoughlin & Newell, CA: didn't following ECHR in Vinter, re whole life sentences in UK
Art 3 positive obligation---not absolute
? ?? ? R (Q) v SSHD---Positive obligation of Art 3: duty on PAs to take 'reasonable steps' to prevent individuals being subjected to torture/IDT.
? ?? ? R (Bagdanavicius) v SSHD: Can establish Art 3 claim if C shows that the authorities 'know or ought to know' of particular circumstances likely to expose him to risk of Art 3 ill-treatment.
? ?? ? Deportation cases: o Soering v UK o Soering, German national, custody of UK, wanted for extradition to USA. o Prosecuting authorities (Virginia) made clear would seek death penalty. o Couldn't argue Art 2, as at time capital punishment was an exception in the ECHR. o So instead argued the manner of the process of capital punishment = violation of Art 3, IDT. Drawn-out legal proceedings, ppl stuck on death row for years. o HELD: process of cap punishment in USA (manner of process) = IDT---the proceedings produced a debilitating,
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