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Question one

Answer 2
UK-Strasbourg: a complicated relationship

British MPs have historically expressed deep-seated frustration to the fact that
Strasbourg judges do not accept the politicians’ collective view that all convicted
prisoners in the UK should be disenfranchised while serving their sentence. Upon
some heated and confrontational reactions as well as Strasbourg’s refusal to back
down, there has been talks on the need for a democratic override in respect of ‘a Court
that has abused its authority and aggrandised its jurisdiction, not only in respect of the
relevant Convention provision but overall’. MPs are adamant that the Court should
show greater respect for what are reasonable policy choices made at the national
level, by affording Member States a greater margin of appreciation – a view that has
been echoed by some senior members of the judiciary, speaking extra-judicially. Such
a political frustration can be more neatly seen in the Shamima Begum’s case
concerning restrictions on the executive power in cases of deportation, and, in
particular, regarding non-nationals suspected of terrorism.

Submitting that at the core of the strained relationship are concerns over national
sovereignty, supremacy in the context of domestic law and, related to both, the
legitimacy of Strasbourg’s influence, this papers aims to analyse the principles derived
from the Convention and evaluate their impact onto UK higher courts. By examining
the Brexiters’ catchphrases and, more importantly, by looking at the application of the
actual principles derived from the ECHR and the political arguments surrounding the
topic, the essay concludes that, although UK Higher Courts are to an extent
constrained by Strasbourg’s approach to Convention rights, they are allowed margin
of manoeuvre and enabled to depart from said standpoint taking into account both the
scope in which they operate and the objectives set by Parliament.
The HRA: a long-awaited reply

S.3 of the HRA has often been a source of debate and sore point for the UK. The
matter flared up in 2012 when senior politicians reacted strongly to the Strasbourg’s
judgment holding that art.6(1) of the ECHR would potentially be violated were the UK
to deport a suspected terrorist and use the evidence obtained by torture in the retrial.
The British Home Secretary vividly accused Strasbourg of ‘moving the goalposts by
establishing new, unprecedented legal grounds upon which deportation was blocked’.
This kind of argument is not new to the political stage and tends to be used to highlight
Strasbourg’s failure to properly balance the needs of national security and human
rights.

If one were to look at the history of the UK-Strasbourg relationship, British concerns
over Strasbourg’s sovereignty and legitimacy go back to the very start of the
Convention’s life. In light of this, the HRA sought to establish a human rights culture in
UK with ‘Convention rights’ as its focal point and was design to display the seriousness
with which the UK government approached human rights protection as well as the
‘highly regarded’ and ‘trustworthy’ role played by Strasbourg. Although placing
‘Convention rights’ centre-stage, the Act recognised the constitutional-like nature of
the rights protection afforded by Strasbourg and sought to enable an interchange of
views on ‘Convention rights’ between the UK and Strasbourg judiciaries, with each
gently influencing the other.

It is the latter purpose that may tentatively suggest that the view in 1998 may have
been that to increase the UK judiciary powers while entailing a commensurately
decreased role for Strasbourg as a ‘foreign’ court. The HRA empowers courts to read
legislation in such a way as to give effect to the ECHR and this can lead effectively to
provisions being rewritten by courts (i.e. fathers’ rights in child hearings). A domestic
court can only do so, however, if its interpretation goes with the grain of the legislation,
in accordance with the principle of separation of powers. In other words, it cannot
make up completely new legislations. However, the Supreme Court must give effect
to directly applicable European Union law, and interpret domestic law so far as
possible consistently with EU law as well as giving effect to the rights contained in the
ECHR, under s.3 of the HRA. This second exercise in fact is the source of the
controversial constitutional position of UK courts when faced with European law,
including the ECHR.
Sovereignty & Legitimacy

Two concerns seem to dominate the academic and professional debates and found
the basis for the institutional distrust that in my opinion led to the Brexit referendum.
First, supremacy concerns came to be associated with the operation of the HRA, for
the argument was made that the UK courts were subservient to Strasbourg’s
interpretation of ‘Convention rights’. Secondly, concerns arose about Strasbourg’s
legitimacy, also associated with its capacity to continue to find the UK in violation of
‘Convention rights’ in terms of its international obligations under the ECHR.

The first issue grew out of a controversy that evolved over how the UK courts
approached the application of Convention law when applying the HRA. Over the first
part of the HRA’s life, the judiciary adopted a narrow view of its purpose, reflecting
more the notion that the Act was designed to facilitate the UK’s domestic compliance
with the Convention rather than establish a British bill of rights. While risking to
oversimplify matters, the courts attempted to anticipate how Strasbourg would resolve
the case before them, resulting in the creation of the ‘mirror principle’, set out in Ullah,
and epitomising how Strasbourg’s clear and consistent interpretation of the meaning
of ‘Convention rights’ risked being treated as an authoritative exposition for the
purpose of assessing the human rights compatibility of domestic law under the HRA.
This was the backdrop to Lord Rodger’s famous statement ‘Argentoratum locutum,
iudicium finitum’ – ‘Strasbourg has spoken, the case is closed’ – which reflected the
unease at what had occurred in the Ullah case, for which both Lord Irvine and Jack
Straw argued that the UK judiciary had been far too willing to hold Strasbourg’s views
as determinative, thereby emboldening the ECtHR as a type of Supreme Court for the
UK. Supremacy anxieties were also revived in the case of Chester, where the
Supreme Court followed the ECtHR’s unequivocal position that blanket bans on
convicted prisoners voting whilst in detention were incompatible with the Convention.

For it is inaccurate to say that the Supreme Court is no longer supreme, the need to
amend the HRA is very debatable. On the one hand, there has been no actual case
to date in which the Supreme Court has felt necessary to invoke the constitutional
redline of incompatibility under s.4 of the HRA. On the other hand, it could be argued
that such a constitutional redline is drawn inappropriately, potentially constraining the
domestic courts into accepting the ECtHR’s final and unequivocal view, by failing to
consider that a particular human rights matter may still be of national interest and
importance even though falling short of being a ‘fundamental substantive or procedural
aspect’ of UK law. In other words, the current legislation still leaves UK law potentially
too vulnerable to Strasbourg’s influence. Although noting the many views in favour of
the HRA amendment, it should be reminded that s.2(1) makes it clear that the domestic
courts ‘must take into account’ ECtHR’s case law, but not be bound by it.
Secondly, in order to address the supremacy concerns derived from the fear of an ‘all-
powerful and unaccountable’ Strasbourg judiciary, ‘ignoring matters of national
interest and importance’, one should analyse what ECtHR does in practice. Although
this has been a central issue in recent years – and one of the main argument within
the Brexit agenda – new emphasis should be brought on the subsidiarity principle.
Originally, the HRA aimed to shift British expectations about the ‘foreign’ court and it
is understandable that questions arise such as why the application of the Convention
by British judges should be subject to further review by Strasbourg, as stated by Lord
Hoffmann, expressing a fundamental question as to the legitimacy of Strasbourg role
at international law. The Strasbourg Court, Lord Hoffman argued, ‘lacks constitutional
legitimacy’ to ‘impose uniform rules on Member states’ in the area of fundamental
rights.
Seeking Equilibrium

Perhaps some insight into the answer emerges from the historical UK-Strasbourg
relationship and what it reveals about how the Convention has been viewed in the UK
compared to other countries. Lord Neuberger pointed to Germany by noting that its
written Constitution generally grants parallel or even greater rights to citizens that they
are accorded by the Convention. By contrast, although initial unease was felt with the
Convention by the UK in 1970s due to its ‘revolutionary’ influence, at the end of the
1990s the Convention itself was taken as inspiration for UK’s new human rights
regime, under the banner of rights being ‘brought home’. Yet, from 2010 onwards, the
pressure for a ‘fundamental reassessment’ reached its climax by reflecting on the long
view of UK-Strasbourg relations – whether that is under the HRA or a future British Bill
of Rights. Some senior UK judges have argued that Strasbourg law risks challenging
the democratic process, arguing for an approach that is more reliant on the common
law, and so more suited, they say, to the ‘British’ way. This view may not be widely
shared, and the points made above about the ECtHR and its subsidiarity principle offer
a response to it. However, for steadfast adherents to political constitutionalism and a
Westminster model that envisages Parliament as always having the ‘last word’, it
seems inevitable that there will be more occasions when membership of the
Convention proves controversial for the UK – even if Strasbourg’s influence is
diminished. It is therefore my opinion that the responsible approach to a reform of the
UK’s domestic human rights provisions must be to reduce the potential for such a
conflict. Submitting that the new equilibrium existing between the UK courts and
Strasbourg in recent years is something that any future British Bill of Rights must
facilitate, this must still continue to allow UK judges to take Strasbourg case law into
account, for only then can Strasbourg continue to fulfil its essentially subsidiary role.

Answer 3
OUTLINE.
 Consider the relationship between the UK High courts and Strasbourg in
regards to their interaction.
 Analysis of case law and how convention rights are interpreted by National
courts in ways that follow or differ from Strasburg.

INTRODUCTION.
The relationship between the UK High courts and Strasburg is indeed one of valuable
judicial dialogue and exchange of ideas different judges from various legal systems.
Although these bodies are different especially in the chain of authority, they still
endeavour to recognise practical differences in implementing the convention rights
adequately. In matters concerning convention rights the Strasburg court essentially
sets the rules that are to be followed by the national courts because of the importance
of uniformity in the application and development of the law. This only requires national
courts to accord a level of protection that mirrors that of Strasburg courts but not limit
or dilute it.1 However, the qualifying mirror principle states that there are situations
where national courts can depart from Strasburg in principle. The aim of this essay is
to analyse how convention rights are interpreted by national courts and whether or not
they follow or differ from Strasburg rulings. It will do so by focusing on case law relating
to the articles of the convention.

MAIN BODY.

1
Ullah v special
It is true that national courts have a duty and obligation to take proper account of
ECtHR case law which confers on them a responsibility to interpret, no more no less.
Nonetheless, the qualifying mirror principle allows situations where this can be
departed from. These are: where there has been a misunderstanding by ECtHR,
where the ECtHR case is outdated and would likely lead to a different result today,
where the margin of appreciation is in play and lastly where there is no case law on
that matter. These exceptions are subject to justification by the national courts as they
must also take into account the principle of proportionality.

Furthermore, because the relationship between the national courts and Strasburg is
that of systematic compatibility borne out of the numerous values they share, the use
of the aforementioned exceptions by national courts can be considered only as an
attempt to further improve and develop the law as seen in the authority of N v SSHD.
The issue here concerned Art 3 which provides that no one shall be subjected to
torture, inhumane or degrading treatment. The applicant had sought asylum, but her
application was rejected. She was suffering from advanced HIV/AIDS and claimed that
with continued treatment she would survive several years, and that if returned to
Uganda she would not receive that treatment and would not survive as long. The court
of appeal in respect of Art 3 referred back to the decision of Strasburg in D v UK 24
EHRR 423 and held that her situation was far from unique and the denial of her asylum
claim was not a breach of her right. This is a prime example of the relationship between
these two bodies as the court of appeal is seen to have considered adequately the
severity and sensitivity associated with the issue at hand, while taking account of
Strasburg ruling because of the presence of already existing case law on that matter.

Another relevant authority which elaborates on the dynamics between the relationship
of the national courts and Strasburg, is the case of R v Horncastle and others [2009]
which concerns Art 6 of the ECtHR which states that everyone has the right to a fair
trial. The issue for consideration here was on the rule of hearsay evidence as the
applicants had been subject to conviction under UK law. They relied on the ruling of
Strasburg in Al- Khawaja and Tahery v United Kingdom where it was held that the
admissibility of hearsay evidence would breach Art 6 of the convention if it was the
main basis for the conviction. The supreme court justified its decision by stating that it
was not in fact differing from the ruling of Strasburg, but was in dialogue with it as UK
law had not sufficiently been considered. This case shows the reliance of the UK courts
on the qualifying mirror principle which states that national courts could depart from
Strasburg ruling where there was a misunderstanding by the ECtHR.

CONCLUSION.
In conclusion, there are indeed situations where the national courts may differ from
the ruling of Strasburg in an attempt to address the law better. This does not suggest
lack of constraint or utmost freedom as to decision making, but only evidence which
shows the respect these bodies have for the sufficient development and uniformity in
the application of the law, with the attendant aim of according adequate protection to
individuals and their convention rights. Views and perspectives clearly differ, however,
the differences in views does not detract from the immense level of protection the
national courts and the ECtHR accord to individuals, as evaluation has proved.
Question two

Answer 3
Article 3 of the Convention on Human Rights prohibits the torture or inhuman or
degrading treatment or punishment of any person. The right is an absolute right, which
means that there can be no justification what so ever to somebody being subjected to
any of the treatment covered by the convention (Gafgen v Germany). The court in the
case of Alseran & Ors stated how it would be inconsistent with Article 3 to treat any
unnecessary use of force by a state agent as a breach of Article 3 no matter the
severity, but this has been questioned in the key case of Bouyid v Belguim, where it
was held a mere unnecessary slap by a police officer could be degrading treatment.
To allow such a decision appears to undermine the status of Art 3, and thus, as can
be seen by the position of domestic case law, it should not be consistent with Art 3 to
treat any unnecessary use of force by a state agent as a violation of Article 3.

In Bouyid v Belguim, the majority decided that any force by state officials, no matter
the severity, will breach Article 3 if it is unnecessary. This does not follow Article 3,
which has a minimum level of severity which must be met before Article 3 can be
breached. The minority in the case stated that to decide if a state agent has breached
Article 3 then both the necessity and the severity of the treatment needs to be
considered. Both critics, such as Mavronicola, and domestic courts have disagreed
with the decision of the majority in Bouyid v Belguim, instead deciding to follow the
minority’s decision of looking at both necessity and severity. With even the judges
disagreeing with each other, it is clear that minor treatments may not necessarily be
enough to satisfy Article 3, with some judges wanting to still follow the rules of the
convention, whilst others want to place an emphasise on officers showing restraint
when interviewing people.

The term “torture” naturally conjures up images of the worst kind of pain and treatment,
and has been described as an “aggravated form of inhuman treatment” (First Greek
case). So for a slap to be deemed on the same level of something that causes “very
serious and cruel suffering” (Ireland v UK) seems inconsistent. The level of treatment
for torture has included electrocuting a person’s genitals and someone being
subjected to extreme kicks, slaps and punches (Aksoy v Turkey). The minimum level
of severity that has been held to meet the threshold includes three lashes of a cane
as a punishment on a male’s bare bottom, whilst being held down by officers in a public
setting (Tyrer v UK). To allow something as minor as a slap to fall under the same
treatment as stated above would undermine the idea of the convention being reserved
for serious treatment. A minor level of force could be handled by domestic law such
as battery under criminal law, and so Article 3 should be left for what it is intended for
and what it is usually associated with; serious harm and injury.
Both torture and inhuman treatment also have to be pre meditated, it is only degrading
treatment that does not need a pre meditated aspect. Usually, in a police situation,
any treatment would be in the heat of the moment and very unlikely to be planned, so
does not satisfy the pre meditated requirement. By not satisfying this element, it again
shows the incompatibility with the convention by allowing such minor treatment to
satisfy a breach of Article 3.

Conversely, state agents are in a position of power and so they should show restraint
when in interviews. They are automatically domineering over the person they have in
custody, and so that person may feel inferior and thus demeaned. The normal
humiliation of detention however in itself can not breach Article 3, so an officer should
not fear they are breaching the convention simply by being harsh in their questioning
of somebody.

Following the living instrument approach, it is not to say that the treatment endured by
the boys could not be classified as serious enough to meet the Article 3 threshold in
the future. The Convention should be looked at in light of present day conditions. This
can be seen in the cases of Tomasi v France, where kicks and slaps were held to be
inhuman treatment, and Selmouni v France, a case with very similar facts where it was
held to be torture. Therefore, allowing minor treatment to breach Article 3 just because
it was used unnecessarily is in itself unnecessary, as if the treatment by a police officer
in such conditions is continuously used throughout member states, it should then be
addressed either by escalating its seriousness level so it does breach Article 3, or
implementing other legislation to stop such instances from occurring.

To conclude, allowing any form of unnecessary treatment, regardless of the severity,


to give rise to a breach of Article 3 ultimately undermines the concept behind the
convention. The domestic courts approach of taking into account both the necessity
and the seriousness of the treatment is more consistent with the Article, as it ensures
that the convention does not then become redundant. Rather than being used for
minor treatments, which could be dealt with by lesser domestic law, it is reserved for
more seriousness instances, and places more of a focus on the conventions aim of
preventing torture, rather than merely preventing minor infractions.

Answer 6
Article 3 covers the right to not be subject to torture or inhuman or degrading treatment.
Torture is defined as ‘deliberate inhumane treatment causing very serious and cruel
suffering’ (Ireland v UK). Inhumane treatment is also ‘deliberately caused severe
suffering’ however is distinguished from torture due to lack of purpose for inflicting the
suffering. Degrading treatment is defined as ‘humiliating treatment showing lack of
respect for human dignity’.

The suffering of the individual must meet a minimum level of severity, the standard for
which has changed over time to mirror changing social attitudes. If the case does not
meet the minimum level of severity required for an Art 3 breach then there may still be
a breach of other convention rights enforceable.

In Bouyid v Belgium it was held that being slapped by police officers was a breach of
Art 3. This was clearly a situation of unnecessary use of force by a state agent and
the judges in this case controversially decided that any use of force which is not ‘strictly
necessary’ would be a breach of Art 3. This was a controversial decision because
shouldn’t the amount of force used be taken into account when assessing whether it
is a breach of a convention right? A slap on the face is not likely to cause ‘severe
suffering’ or any long lasting damage or pain. The reasoning behind this decision may
be due to the lack of power balance in the relationship between a police officer and
citizen so any unnecessary physical contact may be viewed as degrading or
humiliating to the subordinate party whereas a slap between two parties with equal
power status may not be viewed as seriously.

We can see from the case of Yousif v Commissioner of Police for the Metropolis that
a more favourable approach is taken when the force is deemed ‘necessary’. In this
case moving a naked prisoner to a different cell - which arguably is a more degrading
experience than being slapped in the face - was not held to be a breach of Art 3
because it was deemed to be necessary.

In the later case of Alseran v Ministry of Defence it was held that soldiers kicking
someone they had just captured in a war situation was not held to be a breach of Art
3. This decision appears to be somewhat in conflict with Bouyid as they do seem to
have used more force than was necessary in the situation - kicking him when he was
already captured and detained by them. Their defence was that they felt that this force
was necessary to prevent his escape and ensure the safety of the guards.

The definition of torture and inhumane and degrading treatment, particularly that it
requires ‘severe suffering’ does not seem consistent with the decision in Bouyid that
any level of unnecessary force by a state agent could be a breach of Art 3, even
something as minor as a single slap. However, we can see from the case of Alseran
that the courts seem to be taking a forgiving approach over when the force used is
‘necessary’ and therefore not a breach of Art 3.
Question three

Answer 2
Issue

The issue in this case is whether Ryan (R) and Tami (T) and Dale’s (D) relative (TDR)
have suffered any Human Rights violations under the ECHR. For the purpose of this
analysis, only infringements of Article 2 and/or 4 under the HRA will be discussed.
Namely:

 Whether T was subject to slavery or servitude, and therefore suffered a breach


under art.4 of the ECHR,
 Whether Devon police (DP) knew about the infringement of T’s rights and failed to
act effectively upon said knowledge,
 Whether DP acted lawfully when in pursuit of R and D, and
 Whether the investigations carried by DP regarding the death of T and R’s actions
meet the standards of effective investigation.
Claim under Human Rights

The HRA was intended and designed to ‘bring Convention rights home’. In other
words, the enactment of the HRA bound member states to legislate and act in
compliance with the principles and guidance of the ECHR, under art.3 of the HRA.
However, in order to enforce the Convention rights, s.7 of the HRA states that a person
who claims that a ‘public authority’ has acted, or proposes to act, in a way that is
incompatible with the Convention can either bring proceedings against the authority in
an appropriate court or tribunal or can raise the Convention arguments concerned in
any legal proceedings, only if he or she can show to be a ‘victim’ of the unlawful act.
It follows that the ECHR is only enforceable on a vertical level whose extreme are the
‘public authority’ and the ‘victim’. Both personalities are present in this case. Firstly,
following the case of Yarl’s immigration, the DP, as police authority, is likely to fall
within the definition of public authority upon carrying out a multifactorial assessment,
as either governmental in nature – also referred to a ‘core public authority’ – or whose
functions are public – also referred to as ‘functional (or hybrid) public authority’.
Additionally, the degree of commercial freedom afforded to DP is likely to confirm the
above conclusion, as shown in the case of YL v Birmingham CC. Secondly, as stated
in the case of Rabone – and in contrast with the case of Savage v South Essex – the
scope of the word ‘victim’ extends to relatives granted that there is a sufficient link. As
displayed in Daniel v St. George’s healthcare, this will be based on the nature of the
relationship, the extent to which the violation has affected the claimant and their
involvement in the proceedings. Although there is no issue with R, further information
should be provided about T and D’s relatives, more specifically regarding the nature
of any personal ties to the victims, namely T and D. Assuming that the claim has been
brought within a year from the unlawful act – unless the court acted upon their
discretion and delayed the matter, as occurred in the case of Rabone – and with no
doubt regarding the territorial jurisdiction under which the case shall be heard, it is
likely that R as well as T and D’s relatives are able to bring a claim under the HRA for
infringement, and therefore breach, or their Convention rights under art.2 and 4.
Article 2

Art.2 of the ECHR, ‘one of the most fundamental provision in the Convention’ for many,
imposes a substantive obligation to protect the right to life, a prohibition on the taking
of life and a procedural due diligence to investigate the taking of life. Both ECtHR and
domestic courts must apply the ‘most anxious’ or ‘particularly thorough’ scrutiny. Art.2
imposes a positive obligation to ‘take appropriate steps to safeguard the lives of those
within their jurisdiction’. Although requiring an effective criminal legislation supported
by law enforcement machinery, this also demands states to have in place a legislative
and administrative framework to effectively deter threats. In other words, it may require
domestic regulations to ensure the effective protection of citizens whose lives might
be endangered by the inherent risks of the activities in question. Additionally, art.2 also
imposes a further obligation upon member states ‘to take preventive operational
measures to protect an individual whose life is at risk from the criminal acts of another
individual’ or from suicide.
Article 4

Art.4 includes both the issues of slavery and servitude – as well as of forced or
compulsory labour. While the former is defined in the case of Siliadin as ‘status or
condition of a person over whom any or all of the powers attaching to the right of
ownership are exercised’, the latter differs from such a definition in that no ownership
of the person is claimed. In the case of CN and V, the ECtHR clarified the distinction
between servitude and force labour, stating that servitude amounts to an aggravated
form of forced labour and this was dependant on the victim’s belief, upon object
evidence, that their situation was immutable. Additionally, in order for labour to be
forced or compulsory, the work or service must be ‘extracted from the person under
the menace of any penalty’ and performed involuntarily.

In the case of Silidian, the ECtHR established that art.4 entailed a specific positive
obligation on member states to penalise and prosecute effectively any act aimed at
maintaining a person in a situation of slavery, servitude, or forced or compulsory
labour. In other words, states are required to put in place a legislative and
administrative framework, capable of realistic enforcement, to prohibit and punish
individuals who violate art.4. In this case, such measures have been introduced to the
UK via the Modern Slavery Act which, according to art.3 of the HRA, shall be
interpreted in line with the Convention.
T’s treatment

T’s case closely recalls the facts in Rantsev, and more so the facts in Silidian, where
a foreign national was deprived of traveling document and forced to work by the same
person who originally helped the victim flee the country. In this case, T is held under
threat by the employer and, with no pay, forced to work at the farm for 14 hours a day
as well as living in the premises. Following the definition provided in CN and V, it is
the state’s obligation, in this case the UK, to prevent such a treatment within its
jurisdiction and therefore any infringement under art.4 of the ECHR. It is reported that
T managed to contact her sister three days prior to her death, and that the sister
promptly contacted the police authority on the matter. It is also reported how the police
did not intervene for three days before sending armed forces to the relevant location.
This delay could be argued to constitute to a breach of the UK positive obligation under
art.4 of the ECHR toward T to protect any victim subject to servitude. However, in
order to fully assess such a breach, a close evaluation on the degree of knowledge
possessed by the DP should be undertaken.
Police knowledge

The case of L.E. v Greece draws a distinction between actual and constructive
knowledge, where the latter sets the threshold as low as to one where the relevant
authorities ought to have known of the risks, and the failure to act upon such
convictions constitute a breach of art.4. It is reported that the police was contacted by
T’s sister and warned of her situation. Although the authority appear not to have fully
grasped the severity of the situation, it can be argued that a conspicuous delay of three
days constitutes a failure by the police of protection, resulting in T’s death. DP’s failure
to promptly investigate strongly recalls the case of OOO and ors, where the police
authority was found in breach of art.4 for not investigating women’s complaints on a
human trafficking case. However, given the lack of information in relation to the
activities carried out by DP within the three days delay, it would be unlikely at this
stage to find DP in breach of its positive obligation under art.4.

Yet, it is DP’s delay, and resulting death of T, that raises questions as to any additional
potential breach of T’s rights under art.2 of the ECHR. Although the case of Re Officer
L only holds public authorities in breach if having actual or constructive knowledge of
a real and immediate risk, the principle has since been extended in cases of breach
of state’s positive obligations such as the implementation of a legislative and
administrative framework. Yet, the high threshold still applies for the engagement of
operational duty by the police authorities, as shown in the Osman case. In this case,
it is a matter of facts whether DP acted reasonably and appropriately to protect T. DP’s
failure to promptly investigate after receiving the call from T’s sister would suggest a
failure to take measures within the scope of their power which might have been
expected to avoid that risk. However, given the lack of information regarding the
activities carried out by DP within the three days delay, such failure is unlikely to
constitute a breach of UK positive obligations under art.2 and 4 of the ECHR.
In pursuit
A further analysis shall be carried out in order to assess whether the DP’s use of force
in pursuit of R and D does not comply with the permissible circumstances under which
police authorities can use lethal force. Under art.2(2) it is permission to use lethal force
in order to curb violence, control prisoners and, more generally, to maintain the law
and order. The case of Stewart provides further guidance holding the use of lethal
force permissible only in circumstances of absolute necessity. This objective
assessment must focus on the nature of the aim, any presence of dangers and risks,
and any other relevant circumstances. Following the case of McCann, and upon a
strict proportionality approach, it can be argued that DP’s shooting falls outside the
permissible circumstances set out by art.2(2). However, given the 10 to 9 vote in
McCann, a deeper evaluation, if undertaken, would seem to suggest a different
conclusion. In McCann, the courts found crucial the element of ‘planning and control’
as well as ‘the training and briefing’ of state’s agents. In this case, the ECtHR will focus
on the adequacy of the actions taken by DP and whether these were designed to
minimise the risk to R and D’s lives, as shown in Andronicou v Cyprus. Such an
assessment will take into account the procedure followed by DP during the chase and
the proportionality of the force used.

It is reported that R and D made an initial run to hide in a barn upon seeing the arrival
of the armed forces and released the dogs in order to give them the time to escape.
Consequently, upon being asked to stop, the police had no choice but to start firing in
R and D’s direction, wounding R in his shoulder and leg, and killing D. Taking into
account these circumstances, the only arguments supporting a breach would be the
DP’s failure to take the extra step of firing skyward before opening fire in R and D’s
direction and the height at which DP decided to open fire. Disputing each position
separately, the strength of the former would depend subject to the circumstances of
the case, in which it is plausible for DP to open fire upon the belief of absolute
necessity in order to prevent R and D to successfully flee. The latter would have to
take into account different factors such as the distance between the shooter and the
victim, the amount of bullets fired during the chase and the presence of an effective
alternative for the success of the pursuit, as outlined in the case of Bubbins. Although
the law seems inconsistent on the strictness of the proportionality test, as shown in
the contrast between the case of Nachova and the case of Giuliani and Gaggio, it is
unlikely that DP’s operation can be found in breach of art.2, according to the limited
facts available.
Investigation(s)

A different set of questions arises concerning the investigative measures adopted by


DP in regards to T’s death and R and D’s role in the case. The case of Opuz v Turkey
exemplifies the obligation under art.2 and 4 to engage with the procedural aspect of
said articles, imposing the following parameters: independency and autonomy,
presence of public scrutiny, reasonableness, adequacy and the next of kin’s
involvement. Although limited information are provided in regards, it appears that such
investigations are carried out by DP and, in addition, DP has neglected the existence
of R and D’s employer and the degree of their involvement. The first issue is one of
independency, where the authority that might be found in breach is conducting the
investigation on said breach, ultimately affecting the nature of the investigation due to
its institutional connection. The second issue is one of adequacy where, as highlighted
in Ramshai v Netherlands, failure to taken into account key factors such as the identity
of R and D’s employer is likely to result to an inadequate investigation by DP. Similarly
to the cases of Shanaghan and Brecknell, independency and adequacy are critical to
ensure compliance with art.13 right to an effective remedy and implementation of
domestic laws. It would follow that DP’s investigation does not meet the requirement
set out for an effective investigation and it is therefore in breach of the procedural
obligations under art.2 and 4.
Conclusion
Conclusively, having discussed the issues in depth, the outcomes are likely going to
be the following:

 T (T) was subject to slavery or servitude, and therefore suffered a breach under
art.4 of the ECHR,
 DP had constructive knowledge of the infringement of T’s rights and failed to act
effectively,
 DP acted lawfully when in pursuit of RD, and
 The investigation carried by DP regarding the death of T does not meet the
standards of effective investigation.

Answer 4
Need to discuss the preliminary requirements, so can a claim be brought forward.

Applicant? Applicant has to be directly or indirectly affected by the act, will look at
nature of relationship and personal ties. Public authority? It is the police - Jurisdiction?
Did it happen in the jurisdiction of the state, yes In uk - Time Limit? Needs t be
within 1 year

There are two potential claims that can be brought forward, Ryan is alive, police
harmed him and he may want to bring a claim for a breach of article 2. Also Dales
relatives may want to bring a claim for a breach of Dales article 2 right. Article 2
gives a right to life, and there may have been a breach in the states negative
obligation for no intentional deprivation of life except under the conditions in Art 2 (2).
A number of factors have to be considered.
Art 2.1- had the state deprived the victim of their life? They deprived Dale of his life as
he is killed and Ryan is injured but living. The case of Mcan V UK will demonstrate
what the court will consider in terms of breaching Article 2. The planning of the
operation, the police did not take much car into their operation and so it can give
reason to why they acted so irrationally to shoot into their direction. In terms of the
shootings the behaviour was risky, shooting at unarmed men does create the risk of
death. Makaratizes V Greece, the applicant was not killed but the conduct was
inherently risky and liable to cause death and there was an Article 2 breach.

Art 2.2 – does the deprivation of life fall within an exception? There are three
exceptions to consider. The force was used in defence of unlawful violence as they
had guard dogs set on them so the guards would escape, so the police retaliated in
that respect. Also is was in order for a lawful arrest, as the police had correct
knowledge these guards were holding Tami and aybe other woman here and so they
came to put a stop to the operation and arrest the men. Furthermore, Was the force
used absolutely necessary? We have to consider Proportionality. Nachov- bulgaria-
soldiers ran away from team unlawfully, military forces found them and told them to
stay put. The runaway soldiers started running and got shot. The court decided the
force used was not absolutely necessary as they were not harmful and dint need to
be shot, could have captured them at a later date- in this case it was not
proportionate there was no need to shoot but the police in this case did have dogs
set out on them. There was some retaliation from the guards and so it justified the
police using force, as it was known they were violent and they had the aim of
arresting them.

Can be prepared to argue the force was not absolute necessary as they could chase
after them, and track them down at a later date.

Secondly a claim can be brought forward by Tamis relatives for a breach in Article 4.
Sister can bring a claim for a breach of article 4 to the state for failing to do their
positive obligation and procedural obligations, the state has to have specific
protective measures and conduct a full and effective investigation into the criminal
activities to make lawful arrest. As the article requires the state to penalise and
prosecute those who kept a person in slavery or servitude.

In this case Tami was bound to servitude with her 14 hour a day work and not being
paid properly, she was not owned by the people on the farm but they coerced her to
stay playing into the fact they know she is an illegal immigrant and so she fears
arrest. The case of silidan V france demonstrates two points. Firstly, what constitutes
as servitude: an eighteen years old Togolese national, was made to work as a
domestic servant fifteen hours a day without a day off or pay for several years, the
Court found that the treatment suffered by her amounted to servitude and forced and
compulsory labour, although it fell short of slavery., as it lacked the genuine right of
ownership as she was not made to be an object. And that the court found France in
breach of Article 4 as they had no effective punishment for the people who
committed the crime, In this case they did not take steps to find and prosecute the
criminal who did this to Tami and try and prosecute them under the modern slavery
act 2015.
With this information it is found that Tami was under servitude, However, “steps are
not taken to identify the employer or bring proceedings against him under the
Modern Slavery Act 2015”. The case of C.N V UK demonstrates the circumstance
when an investigation from the state should take place, where the complaint is ill
founded with a lack of evidence hen it is less likely the state will held held to have
breached their duty as there is only so much they can prevent. However, when the
applicant calls the police and tell thems where her sister is and the harm she is being
subdue too and they had credible suspicion to believe the wrong doers were at the
barn in which the police raided this in turn does place the state under the obligation
too investigate these complains and provide a full and effective investigation in which
they did not do.
Question Four

Answer 2
Jack:

The first issue is regarding Laura bringing a claim in relation to Jack death, under
article 2 and 3.

In regard to Article 2 to which focuses on the right to life, there are 3 types of obligations
to which the authority needs to oblige to and this are negative obligations, positive
obligations and procedure obligations.
The first aspect to which we will have to look at will be the negative obligations to which
is when the authority needs to avoid intentionally depriving someone to their life’s, this
can also relate to applying forced to which can lead to death. This is seen in the case
of Oyur v Turkey, where there was a violation of article two, due to the fact that they
authority failed to follow their negative obligation into not killing the individual. This
would then link back to Jack’s case, where the police officers did not have to use such
extreme measures in order to stop the riots, as perhaps they could of call for back and
up and restrain each individual in a more respectful way.

In addition, one could also argue that forced can be used only when is absolute
necessary, for example in MCcann, the court used the proportionality test in order to
prove that the officers had a honest and reasonable believe that the applicants where
carrying a bomb. This would then link back to Jack’s case, due to the fact that if the
officers had a hones tand reasonable believe that the riots was extremely dangerous
and could being harm to others, then the forced used to detained people such as Jack
could be justified.

We also have to prove whether the positive obligations have been meet by the
authority, these are the general legal frame work and protecting a specify person, this
then breaks into two stages, stage one where we have the case of Re Officer, to which
highlights that in order to succeed with the positive obligation the court would look and
the actual knowledge and the contractual knowledge, meaning that the court would
only look at the knowledge that the authority had at that time. This would then link back
to Jack’s case, due to the fact that the police officers were scared with the outburst of
the inmates and did not know what do to, so they done what they thought to be
reasonable to which was to fight back with sport equipment that they had in their sport
cupboard. The second stage is whether the officers took a reasonable measure,
meaning that the court will look at the relevant factors of the case and see whether the
authority took reasonable measures or not. (Edwards’ case). In relations to Jack’s
case it can be seen that the court would say that the police officers took reasonable
measures, due to the fact that the prison was not equip for riots and they did not have
the right defencing tool, so they did what they could.
In regard to the procedure measure, the court is more likely to look at the effective
obligation and whether the local authority took reasonable steps. In relation to Jack it
can be argue that the police officers took reasonable step with the riots as they did
what they could have done at that specific time.

To conclude, Laura claim would not be successful under article 2, due to the fact that
the police officers have acted in a honest and reasonable manner in regards to the
riots.

The second issue is whether Greg and bring a claim under article 3 in regards of Jack
assaulting him.

Article 3 breaks down into 3 sections: torture, inhuman treatment and degrading
treatment. In relation to Greg’s case we will be focusing on degrading treatment, as
the case of Pretty v UK shows that degrading treatment focuses primely on the effect
of humiliating an individual dignity.

Within every article, we must show the negative obligations, positive obligations and
the procedure obligations.

The first aspect to which we will have to look at will be the negative obligations to which
is when the authority needs to avoid intentionally depriving someone to their life’s, this
can also relate to applying forced to which can lead to death. This is seen in the case
of Oyur v Turkey, where there was a violation of article 3, due to the fact that they
authority failed to follow their negative obligation into not killing the individual. This
would then link back to Greg’s case as the authority failed to protect individuals who
could have be subjected of abuse to another inmate, such as Jack.

We also have to prove whether the positive obligations have been meet by the
authority, these are the general legal frame work and protecting a specify person, this
then breaks into two stages, stage one where we have the case of MC v Bulgari, to
which highlights that in order to succeed with the positive obligation the court would
look and the knowledge that the individuals had of that time, meaning that the court
would only look at the knowledge that the authority had at that time. This then would
link back to Greg’s case, as the police officers had a positive obligation to protect
Greg’s as perhaps, he could have been moved to a separate cell, isolating him from
the other inmates.

In regard to the procedure measure, the court is more likely to look at the effective
obligation and whether the local authority took reasonable steps. In relation to Greg it
can be argue that the police officers did not take reasonable step with the riots as they
did not protect him from the other inmates.

With this in mind, Greg can bring a claim under Article 3 with in relation of degrading
treatment that had suffered due to the police officers not following their obligations.
The third, issue is in regard to George, and whether he can be a claim under Article 3,
in relation to degrading treatment?
The first aspect to which we will have to look at will be the negative obligations to which
is when the authority needs to avoid intentionally depriving someone to their life’s, this
can also relate to applying forced to which can lead to death. This is seen in the case
of Oyur v Turkey, where there was a violation of article 3, due to the fact that they
authority failed to follow their negative obligation into not killing the individual. This
would then link back to George’s case as the authority failed to protect individuals from
the law changing and informing him of that.

We also have to prove whether the positive obligations have been meet by the
authority, these are the general legal frame work and protecting a specify person, this
then breaks into two stages, stage one where we have the case of MC v Bulgari, to
which highlights that in order to succeed with the positive obligation the court would
look and the knowledge that the individuals had of that time, meaning that the court
would only look at the knowledge that the authority had at that time. This then would
link back to George’s case, as the police officers had a positive obligation to protect
George from living on the street and beg for money, as he could not get any other
jobs.
In regard to the procedure measure, the court is more likely to look at the effective
obligation and whether the local authority took reasonable steps. In relation to George
it can be argue that the police officers did not take reasonable step with the outside
world for George as now he has not place to stay and not job.

With this in mind, George can bring a claim under Article 3, due to the fact that the
local authority have a positive obligation, in regards to making sure that George would
not struggle outside of prison.

Answer 3
This essay will advise Laura, Greg and George on whether they can bring a claim
against SecureCo under Art 2 and 3. In order to bring a claim certain preliminary
requirement must be satisfied. These are the same for all the claims and for both Art
2 and 3.

Firstly, the applicant must be a victim under S7 (1) Human Rights Act (HRA) 1998, this
includes anyone who meets the criteria established under Art 34 ECHR by the
European Court of Human Rights. Under art 7 (7) HRA a victim must fall within one of
the categories of applicants mentioned under Art 34 ECHR any person, non-
governmental organisation or group of individuals and establish that they have been
directly or indirectly affected by the alleged violation. In order to be an indirect victim,
the act must have affected somebody that they are closely related too, this is
automatically established for married and unmarried couples and children. the court
will consider all the facts and circumstances and assess whether there is a sufficiently
close link or established personal interest.
In Daniel v St George’s Healthcare NHS Trust the Relevant factors include; the nature
of the legal/family relationship, the nature of the personal ties, the extent to which the
alleged violations of the Convention affected them personally and caused them to
suffer and the involvement in the proceedings arising out of the death. In Daniel a
foster mother could be an indirect victim since she satisfied the long-standing family
type relationship and the victim was like a third son however the foster brother could
not be as the relationship was more akin to a friendship. In some exceptional
circumstances the applicant need not establish that they have been affected by the
act only potentially, but this is not important here.

Greg, George and Laura are those individuals wanting to make a claim. Greg and
George are direct victims since they are people under art 34 and have been directly
affected by the alleged violation. The more problematic victim is Laura, she is a person
that has been indirectly affected. Although Laura is not blood related to Jack and does
not fall within one of the automatic victims there is a sufficiently close and personal
link. Following the similar case of Daniel v ST Georges healthcare, it is likely that Laura
will be able to claim since a foster mother in the case of Daniel was also able to.
Additionally, the act that caused Jacks death has personally affected Laura, the nature
of the family relationship, she has looked after him like a son since the age of four and
the fact that Jacks father is unable to bring the claim all supports her claim. Therefore,
she is likely to be classed as victim

Secondly, the defendant must be a public authority. It is unlawful for a public authority
to act in a way which is incompatible with a Convention right. A public authority is any
person/body whose functions are functions of a public nature. There are functional
and hybrid public authorities. A core public authority is governmental in nature and an
organ of the state such as local authorities and police. Whereas a hybrid body have
functions of a public nature, in deciding this it was established in Aston Cantlow that
the following factors would be considered; whether the body is publicly funded,
exercising statutory power, taking place of government or local authorities and
providing public service. For example, a prison carrying out statutory coercive powers
was considered a hybrid public authority in YL v Birmingham city council. Similarly, in
Yarls wood immigration detention centre was held to be a hybrid public authority.

In consideration of the law, the YOI is run by SecureCo under a contract with the Home
Department. Therefore, SecureCo would be a hybrid public authority because they are
carrying out functions of a public nature that would otherwise be carried out by the
government the governmental sector (Home Department).

Thirdly, the alleged breach must have occurred within the jurisdiction of the state
however, under Art 1 ECHR jurisdiction can be extra territorial in limited
circumstances. There is no issue with jurisdiction in this situation since, the issues are
clearly primarily territorial since the YOI is in Hampshire.
Fourthly, claims must be made within the time limit under S. 7(5) HRA. Proceedings
must be brought within one year of the act complained off although this can be
extended in certain circumstances. More information would be required from the facts
on dates of when the acts complained off occurred to be able to establish this element.
Ultimately, it is advised that the victims bring their claim within a year of the acts and
for this essay it is assumed that the victims have taken their claim within the required
period.

It is now necessary to move on to whether the articles have been breached. This essay
will initially look at whether Art 3 has been breached in relation to Greg and George.
Under Art 3 no on shall be subjected to torture or inhuman or degrading treatment or
punishment.
Inhumane treatment is treatment that causes severe and intentional suffering, mental
or physical as shown in Ireland v UK. Whether treatment passes the minimum level of
severity will depend upon the circumstances such as duration, physical or mental
effects, sex age state of health of victim should be taken into account. In Tyrer a man
sentenced to birches did meet the minimum level. Nevertheless, it was argued in
Bouyid that any use of physical force against an individual where not made necessary
by conduct interferes with human dignity and violates Art 3. Although, the courts in
Yousif and Alseran disagreed with the majority in Boyuid and agreed with the
minorities view that the act must be severe enough to violate art 3 even where the act
was unnecessary.

There is a positive obligation on public authority’s to have special protective measures


to prevent Art 3 treatment. The question to establish a breach is did the authorities
know or ought to know of real or immediate risk that an identified indivual would be
subject to Art 3 treatment? If yes, did the authorities fail to take reasonable measure
to provide effective protection against acts of ill treatment? If yes, then the public
authority has breached their positive obligation as demonstrated in Z v UK.
Additionally, in R (Lumbuela) v Secretary of State and MSS v Belgium and Greece the
state was held responsible for harm inflicted or trended upon a victim in the case of
asylum seekers.

Applying the law to the facts; the treatment to Greg was inhumane treatment under Art
3 since, he was subject to physical and mental suffering. This treatment would pass
the severity threshold since, Greg was kicked repeatedly in his genitals and was
threatened to cut them off leaving him with mental and physical suffering. Furthermore,
the treatment would certainly pass under Bouyid as inhumane treatment. SecureCo
breached their positive obligation to have special measures in place to prevent riots
and protect other prisoners from Art 3 violations. If they had these measures in place,
then Greg would not have suffered the Art 3 treatment. The authorities ought to have
known that there was a risk to prisoners if a riot broke out and yet the officer’s were
not fully trained or equipped to deal with or prevent such situations. SecureCo
therefore breached their positive obligation under Art 3.
In relation to George, he has been subject to inhumane treatment since he has been
attacked and at further risk of Art 3 treatment. George was at risk of Art 3 treatment
therefore, SecureCo should take measures to protect them. SecureCo ought to have
known that releasing previous convicts without support or housing would result in them
being homeless and put them at risk of Art 3 treatment. SecureCo failed to take
reasonable measures to provide effective protection such as housing or support. It
concerns a positive obligation as in Limbuela and MSS v Belgium and Greece.
Therefore, it is likely SecureCo would be found to breach Art 3 positive obligation to
George.

This essay will now advise Laura on her claim in relation to Art 2 the right to life.
SecureCo has potentially breached their negative obligation because they deprived
Jack of his life. Under Art 2 The public authority must have intentional deprived the
victim of their life according to McCann v UK. However, death does not need to be
intended.

However, the deprivation of life may fall within one of the exceptions. This includes
action lawfully taken for the purpose of quelling a riot or insurrection as in Stewart v
UK. However, the force used must have been absolutely necessary to achieve that
aim. Absolutely necessary meaning that the force used by the agent must have been
proportionate to achieve the aim. Use of force can be used where it is “based on an
honest belief [that is it absolutely necessary] which is perceived, for good reasons, to
be valid at the time but which subsequently turns out to be mistaken.”

SecureCo has breached their negative obligation because they have deprived jack of
his life. Hitting Jack over the head was intentional and it does not matter if the officer
did not intend death. However, it could be argued that the agent acts fall into one of
the exceptions of quelling a riot. Additionally, the circumstances would be taken into
the account the fact that two officers were already injured, and it was in a riot
environment where prisoners are armoured, and the officers have limited or no training
of such situations. Nevertheless, this justification is unlikely to succeed since, the force
used was not absolutely necessary or proportionate in order to achieve the aim of
quelling the riot. The detriments outweigh the benefits.
In conclusion, Greg, George and Laura’s claims are likely to be successful.