Human rights and judicial review in the past year – Part 1/4: Article 2, the right to life
22 October 2010
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
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.
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
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  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  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
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  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.
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.
Education not recognised as a “civil right” under Convention due process rules
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.
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