Human rights and judicial review in the past year – Part 1/4: Article 2, the right to life

22 October 2010 by

This post is adapted from a presentation given at the Justice Human Rights Law Conference, and will be split into four parts.

I aim to summarise the most important judicial review cases concerning Articles 2, 3, 5, 6 and 12 of the ECHR during the last year. I have also included two other cases of interest, although they cannot be categorised under any of these Articles. Today, Article 2: the right to life (click here for previous posts on the right to life).

The substantive Article 2 duty owed to mental patients

Rabone v. Pennine Care NHS Trust [2010] EWCA Civ 698read our post

The CA have clarified the scope and application of Savage. The HL in Savage had left unclear – to say the least – whether its finding that an operational ‘Osman’ type duty applied to a compulsorily detained mental patient extended to a voluntary mental patient.

The answer of the CA is that it is the compulsory detention which makes all the difference. Absent detention at the hands of the state, no operational duty under Article 2 arises to a hospital patient, whether suffering from physical or mental illness [§63]. The fact that a patient (as in Rabone) might have been detained if events had taken a different course, is irrelevant.

The ‘victim test:   Jackson LJ‟s helpful synthesis of the principles to be derived from the Strasbourg cases as to when ‘victim status under section 7 of the HRA may be lost through the bringing of other proceedings was as follows:

105. The Strasbourg cases do not all fit together neatly, which is unfortunate because citizens need clear guidance on locus standi before they incur the massive costs of litigation. Nevertheless, from the above review of authority, I derive the following propositions:

(i) Where the applicant brings a claim in his domestic courts in respect of matters which form the basis of his Convention claim and succeeds, that success may deprive him of the status of victim under article 34. (ii) In order to ascertain whether the settlement or the award of the domestic court has that consequence, it is necessary to consider all the circumstances of the domestic litigation and to determine whether it affords effective redress for the Convention breach.

(iii) In particular, it is necessary to consider (a) whether liability for the offending conduct has been either accepted by the state authority or found proved by the court and (b) the adequacy of any compensation awarded by the domestic court. If the compensation awarded falls substantially short of the pecuniary losses suffered by the applicant, that is a factor pointing against treating the domestic award as effective redress.”

On the facts of Rabone it was found by the CA that Mr and Mrs Rabone had lost their status as victims, as a result of their bringing and settling a civil claim (within the same proceedings as the HRA claim had been brought) on behalf of the estate of their daughter. The following factors were considered in reaching the conclusion that the claimants had obtained „effective redress‟ (“in so far as the law can afford “redress” for a loss which lies beyond the reach of financial compensation”): the Defendant‟s admission of breach of duty; the settlement of the civil claim on behalf of the estate for funeral expenses and general damages; The identical factual basis for the negligence claim and any claim under the HRA; the Defendant‟s formal letter of apology in respect of the error; and the absence of any pecuniary loss suffered by the claimants.

Savage v. South Essex Partnership NHS Trust [2010] EWHC 865, Mackay J –read our post

Mrs Savage‟s claim succeeded, on its facts, at first instance before Mackay J. However, the CA has given the Defendant permission to appeal. If the Judge‟s finding that the risk to Mrs Savage was „real and immediate‟ (applying the ‘Osman’ test that the HL had held to be applicable), then the case will be of some significance in setting the bar for this test at a relatively attainable level. The immediacy of the risk to life on the facts of that case was much less striking than in Rabone, but nevertheless the Claimant succeeded in establishing a breach of the Article 2 duty. Damages of £10,000 were awarded.

Territorial scope of Convention, and investigative duty

R (Smith) v Secretary of State for Defence [2010] UKSC 29read our post

The SC held (by a 6-3 majority) that the Human Rights Act does not apply on the battlefield and soldiers are not automatically entitled to inquests arising from deaths in foreign conflicts. It was not necessary in every case of a death of a serviceman abroad to carry out an investigation which examined whether there was fault on the part of the state because (a) the Human Rights Act 1998 did not apply to armed forces on foreign soil and (b) in any event, there was no such automatic right. The type of investigation required would depend on the circumstances of the case.

Jurisdiction‟ within the meaning of article 1 was essentially territorial but extended in exceptional circumstances requiring special justification to other bases of jurisdiction; but the protection of article 2 does not extend to troop operations abroad [§58]. Technically, this aspect of the decision was obiter (as Private Smith was not on the battlefield but on a base to which the Government accepted that its jurisdiction extended for these purposes), but it is hard to see any lower court departing from the reasoned views of a majority of six members of the SC on this point.

Investigation: Where there was reason to suspect a substantive breach by the state of the article 2 right to life, it was established that the state of its own motion should carry out an investigation into the death which had certain features: a sufficient element of public scrutiny, conducted by an independent tribunal, involving the relatives of the deceased and which was prompt and effective [§64]. There was no automatic right to such an investigation whenever a member of the armed forces died on active service [§84]. The UK had a staged system of investigation into deaths. Some form of internal investigation would always be held into military deaths in service [§85] and a public inquest was required whenever a body was brought back to this country. This would satisfy many of the procedural requirements of article 2. If, in the course of the inquest, it became apparent that there might have been a breach by the state of its positive article 2 obligations, this should, insofar as possible, be investigated and the result reflected in the coroner‟s verdict, so as to satisfy the procedural requirements of article 2.

The limits of the investigative duty

Walch v. Secretary of State for Justice [2010] EWHC 2203 (Admin) Langstaff J

The investigative duty under Article 2 did not extend to create a duty to conduct a public inquiry into a prisoner‟s self-harming while in custody. R (JL) SSHD [2008] UKHL 68 established that the investigative duty could arise in the case of a near-death with life threatening and permanent injuries, but that did not encompass the present case. In any event there were alternative means by which to achieve an investigation, such as civil proceedings, the internal complaints procedure, or a complaint to the Prisons Ombudsman. (Note: although a fully reasoned judgment was given, this was only a decision refusing permission to apply for judicial review.)

Funding of representation at inquests

R (Humberstone) v. Legal Services Commission [2010] EWHC 760 (Admin), Hickinbottom J read our post

A duty to investigate a death arose under Article 2, even in the absence of evidence of any wrongdoing on the part of the State. The trend in the case law suggests that the State may have an obligation to ensure that an effective investigation is conducted into any death in which there may be doubt as to the circumstances of the death. [§52] However, what amounts to an effective investigation will depend on the circumstances: it does not necessarily require there to be an inquest, or (if an inquest is performed) representation at that inquest. [§56-57].

The case is also authority for the following propositions: (i) complexity is not a pre-requisite to a duty to fund participation at an inquest; (ii) the views of a coroner in relation to funding of a party require special consideration; (iii) The Lord Chancellor‟s Guidance, which is set out in the Funding Code, was endorsed by the Judge as appearing to be “soundly based upon the Strasbourg and domestic jurisprudence of Article 2”.

Notwithstanding the Claimant‟s success in the unusual facts of Humberstone, it is likely that a duty to fund a party to an inquest will remain exceptional: see the later case of R (Patel) v. Lord Chancellor [2010] EWHC 2220 (Admin) in which the Divisional Court dismissed the judicial review claim of the widow of one of the 7/7 bombers, arising from the Lord Chancellor‟s refusal to fund her representation at the inquest into the deaths of the victims of the bombings.

Ali v. Birmingham CC, [2010] UKSC 8

R (King) v SoS Justice [2010] EWCA Crim 2522read our post

The high court ruled that whilst the governor adjudicator was not an independent tribunal for the purposes of Article 6(1) ECHR, it could still determine and ultimately curtail an inmates civil rights.

Tom Hood School [2010] EWCA Civ 142read our post

Education not recognised as a “civil right” under Convention due process rules

Governors of X School [2010] EWCA Civ 1 read our post

Teacher subject to disciplinary proceedings entitled to legal representation if his name is to be added to children protection register

Monday – Articles 3 and 5. In the meantime, you can read our previous posts on Article 2 here.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control hague convention Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation refugee rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: