The ECHR - Articles 2 and 3 (Article 2 - right to life (Significance and…
The ECHR - Articles 2 and 3
Article 2 - right to life
Significance and scope
"Among the highest priorities of a modern democratic state governed by the rule of law" - R (Middleton) v HM Coroner West Somerset (2004)
Duty not to take life
Killing by agents of the state?
McCann, Farrell and Savage v UK (1996)
Actions of individual soldiers = no breach
Control and organisation of the operation = breach by UK - duty of command and control
Duty to safeguard life
R (A) v Lord Saville (2001) - "Bloody Sunday Inquiry"
Osman v UK (1997)
Risk to life?
Protection of identity
Venables v News Group (2001)
State responsibility in war?
Smith, Allbutt & Ellis v MoD (2013)
Art 2 positive obligation to safeguard soldiers' lives?
In providing equipment?
Medical Care - Article 2 "P.O."
Rabone v Pennine Care NHS Trust (2012)
Operational obligation under Art 2 to those in "real and immediate risk" of death?
R (Purdy) v DPP (2009)
R v DP ex p Pretty (2001)
Obligation to investigate deaths
"Not a minor or unimportant duty" - Bingham, R (Amin) v SoS Home Dept (2003)
Killing by state agents
McCann v UK (1996)
(Hugh) Jordan v UK (2001)
McKerr v UK (2001)
Kelly & Others v UK - "Loughgall Ambush" (2001)
Shanaghan v UK (2001)
Accountability of the state
a) Independent and impartial investigation
b) State should act on its own initiative
c) Should involve family as much as possible
d) Clear outcome and recommendations
Future prevention of systemic failures
Article 2(1) - Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence..."
Death penality - initially preserved in Art 2(1) but since outlawed (Protocol 6)
Deprivation of life - Art 2(2) - Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force that is...
NO MORE THAN ABSOLUTELY NECESSARY
Defence of any person from unlawful violence
To effect lawful arrest or prevent escape
To quell a riot
Article 3 - prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment
Absolute right - not subject to derogation
Negative duty - absolute duty not to commit torture or cause inhuman and degrading treatment
Positive duty - not absolute - duty to take reasonable steps to prevent individuals from being subject to proscribed treatment
Conduct of applicant is not a factor - Ireland v UK (1979)
Severity of treatment?
Torture - aggravated form of Art 3 breach - deliberate, cruel and violent - Aksoy v Turkey (1997)
Ireland v UK (1978) - the "Five Techniques"
Inhuman and degrading treatment?
Pretty v UK (2002)
Ill-treatment that attains a minimum level of severity and involved actual bodily injury or intense physical or mental suffering
Degrading = where treatment humiliates or debases an individual... lack of respect... arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance
Napier v Scottish Ministers (2005)
R (Spinks) v SoS Home Dep (2003)
R (T) v SoS Home Dep (2003)
N v SoS Home Dep (2005)
Vinter, Bamber and Moore v UK (2013) - "whole life orders"
R v McLoughlin & Newell (2014)
R (Ullah) v Special Adjudicator (2004)
Chahal v UK (1997)
Soering v UK (1989)
Balance of factors
R (Limbuela) v SoS Home Dep (2004)
Spectrum of cases
Degree of discretion given to state varies
Gezer v SoS Home Dep (2004)
Public interest vs individual interest
Similarity to approach in Osman v UK (1997)
Balance between Arts 2 and 3
Pretty v UK (2002) - assisted suicide?
R (Burke) v GMC (2005) - Art 3 can outweight Art 2 in some circumstances