Tuesday 7 May 2013

Domestic law and the European Convention on Human Rights - Part 2

The previous post of 5th May looked at a list prepared for the House of Commons of human rights cases involving the UK since 1975 and explained the basic scheme of the Human Rights Act 1998 (the HRA) - Human Rights cases since 1975.   Decisions of the European Court of Human Rights (the E Ct HR) and the enactment of the Human Rights Act 1998 (the HRA) have enabled significant and beneficial changes to our domestic law. Some examples follow.

THE most important human right is of course the right to life itself (ECHR Article 2). 
Back in 1995, in McCann and others v UK (1996) 21 EHRR 97, the E Ct HR found by a 10 to 9 majority that the UK was in breach of Article 2 when British soldiers killed suspected IRA terrorists in Gibraltar.  This was a highly controversial decision but the E Ct HR set out the general principles applicable to the use of lethal force by the military, police and security forces.  At the time, English law said little about this beyond permitting the use of 'reasonable force' in the prevention of crime etc - Criminal Law Act 1967 s.3.  The McCann case established that State is expected to exercise due diligence and care even in anti-terrorist operations and the ECtHR felt that it had a duty to examine most carefully whether the authorities of  a State that has killed someone have fulfilled that duty.

Those principles have been applied and developed in later cases.  For example, in some circumstances, there is a positive obligation on States to protect life - often referred to as the 'Osman Duty' from the case of Osman v UK (2000) 29 EHRR 245 actually decided by the E Ct HR in 1998.  This duty was recognised by the House of Lords in Re Officer L [2007] UKHL 36 and Chief Constable of Hertfordshire Police v Van Colle [2008] UKHL 50.

A further development is the need for a full and effective investigation into deaths occurring when state agencies are involved - R (Middleton) v HM Coroner for Somerset [2004] 1 AC 182 where the House of Lords held that, in order to be compliant with Article 2, the Coroners Act 1988 s11 had to be interpreted so that 'how' the deceased came by death meant not only 'by what means' but also 'in what circumstances.'  An effective investigation ensures that, as far as possible, the full facts are brought to light; that culpable and discreditable conduct is exposed  and brought to public notice; that suspicion of deliberate wrongdoing is allayed ; that dangerous practices are rectified; and that those who have lost a relative may at least have the satisfaction of knowing that lessons learned from the death may save the lives of others - speech of Lord Bingham in R (Amin) v Secretary of State for the Home Department [2003] UKHL 51 at para. 31.   See also Hillsborough - Fresh Inquests - the question of Article 2 compliance and the post of 12th December 2012 on the murder, in 1989, of Pat Finucane.

In Human Rights and the next election - Roger Smith (CV here) argues that the HRA has played an enormous role in making our society more transparent and our institutions more accountable.   He gives the example of the behaviour of British forces in Iraq. The Act allowed redress against soldiers who mistreated prisoners such as Baha Mousa who was killed while in detention in Basra. It forced the Army to amend its interrogation procedures back to what the UK government had said since the 1970s that they were – without violence or threat.  We now have the Al Sweady inquiry into further events. The HRA has made all this possible and lifted the veil over one of the previously concealed areas of state activity. This may be uncomfortable for ministers but transparency is better for the nation as a whole and it is an interesting fact that Ministers often cite 'human rights' as a reason for military intervention.

A further example where Article 2 was engaged was the case of Dianne Pretty v UK (2002) 35 EHRR 1.  The Director of Public Prosecutions (DPP) refused to give an undertaking that Mrs Pretty's husband would not be prosecuted under the Suicide Act 1961 should he assist her to commit suicide in the event that her motor neurone disease became unbearable.  The ECtHR held that the right to life did not imply its opposite - a right to die.  States are not under any obligation to permit voluntary euthanasia.

In 2009, the House of Lords decided its last case before the Supreme Court of the United Kingdom came into being - R (Purdy) v DPP [2009] UKHL 45 .  Their Lordships directed the DPP to draw up a policy relating to prosecutions under the Suicide Act 1961 s2(1) and this was duly done (here).  This is an example where the strict law has not been changed but the application of the law has been modified.

A further important case was Supreme Court of the U.K. - Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2 - and blogpost 8th February 2012.  In this case, the Supreme Court held that obligations under Article 2 were owed to a mentally ill patient who was not detained under mental health legislation and who attended hospital voluntarily for help / treatment.  The hospital was held to be in breach of those obligations and the girl's parents were held to be 'victims' of that breach.

In these times, there is a great deal of anti Human Right rhetoric.  In this context, it is worth noting the following from Lady Hale's judgment:

"A hospital trust, in breach of its duty of care towards its patient, allowed a young woman, who was suffering from a severe depressive episode with psychotic symptoms and had been admitted a week earlier after a serious suicide attempt, to go home on leave for two days. The only support plan was the care of her parents who were not in favour of her being allowed home. The following day she hanged herself from a tree in a well-known local beauty spot, at last succeeding in the suicide which she had previously attempted and seriously threatened even more often. The hospital trust has admitted liability to her and paid a sum in compensation to her estate. So why, some might ask, are we here?

We are here because the ordinary law of tort does not recognise or compensate the anguish suffered by parents who are deprived of the life of their adult child. In this day and age we all expect our children to outlive us. Losing a child prematurely is agony. No-one who reads the hospital’s notes of the series of telephone calls made by this patient’s father to the hospital on the night in question can be in any doubt of that; or that the agony may be made worse by knowing that the loss both could and should have been prevented. It is not surprising, therefore, that parents are among the recognised victims when the right to life of their child, protected under article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, is violated. It is also not surprising that, ... , they are victims, not only of the state’s failure properly to investigate the death, but also of the failure effectively to protect their child’s life."

The next post in this series will look at some further areas where the ECHR and HRA have been instrumental in bringing about further beneficial changes.

For an excellent and more comprehensive look at Article 2 see The Right to Life by Douwe Korff published in 2006.

Article 2

Right to life
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 of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

It will be noted that Article 2 permitted the death penalty.  Whilst that was the original position, the death penalty is no longer permissible in any circumstances.  This change came about with Protocol 6 which prohibited the death penalty except in time of war and Protocol 13 which now prohibits it under all circumstances.


The Guardian 9th May 2013 - Is Cameron's Britain what we fought for?


  1. Would this be applicable to bereaved families of NHS patients who died on the liverpool care pathway, who were not 'terminally ill' and who gave no consent to be changed from active treatment to being sedated and given morphine..
    Most are elderly and could not obtain/afford legal representation,or could not find a solicitor who wanted to take on a 'low quantum death' on a NWNF basis.

    Would the 'impartial review' by Mrs. Neuberger be challengable? A request for a public inquiry (with evidence on oath) was turned down, and many members of the panel have occupational links to the end of life care pathway the LCP forms a part of. Some have been wholly unable to persuade the police or coroners to even investigate,as the patients involved 'were old anyway'.
    There is no adequate legal remedy in the UK (Gosport War Memorial Hospital victims are still seeking a public inquiry 13 years after the deaths of 200+ patients given similar lethal overdoses of morphine and sedatives)...I wonder what legal steps they could take under this article of the HR Act?

    1. Article 2 of the HR Act is, in my opinion, very relevant. Doctors, NHS Trusts and even the Parliamentary Health Ombudsman, are getting away with literally 'murder', particularly when an elderly patient is concerned.

      Hopefully, the report on the LCP, due on Monday 15th July, will pave the way for relatives to bring action against the corrupt system currently in operation. Cover-ups are endemic.

      Are there any lawyers/experts out there who could help in the interpretation of Article 2. in relation to the LCP?

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