Law Flashcards
What is article 2 ECHR
Right to life; “everyones right to life shall be protected by law”
Article 2 imposes on EU states an obligation to safeguard life; This consists of the following main duties:
1) an obligation to protect the right to life
2) prohibition on the taking of life
3) procedural obligation to investigate deaths resulting from the state’s use of force or from the state’s failure to protect the right to life.
Does the state have a positive obligation to protect an individual from the criminal acts of another?
Article 2 can also require, in certain well-defined circumstances, a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. Certain well-defined circumstances was defined in Osman v United Kingdom (1998) 29 EHRR 245:
it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within
Does article 2 require absolutely necessity in the use of lethal force?
Deprivation of life shall not be regarded as inflicted in contravention of Article 2 when it results from the use of force which is no more than absolutely necessary to achieve one of the following permitted objectives:
in defence of any person from unlawful violence
in order to effect a lawful arrest or to prevent the escape of a person lawfully detained
in action lawfully taken for the purpose of quelling a riot or insurrection.
The question of whether a use of force was absolutely necessary in the circumstances is one that depends to a large degree on the facts of the individual case. In Bennett v HM Coroner for Inner South London [2006] EWHC 196 (Admin), the Administrative Court held that the reasonableness test does not differ from the Article 2 test of absolute necessity: they are one and the same. Collins J. held at paragraph [25] that: “In truth, if any officer reasonably decides that he must use lethal force, it will inevitably be because it is absolutely necessary to do so. To kill when it is not absolutely necessary to do so is surely to act unreasonably. Thus, the reasonableness test does not in truth differ from the Article 2 test as applied in McCann.”
What is prohibited under article 3 ECHR?
Article 3 of the ECHR prohibits:
torture – deliberate inhuman treatment causing very serious and cruel suffering
inhuman treatment – treatment that causes intense physical and mental suffering
degrading treatment – treatment that arouses in the victim a feeling of fear, anguish and inferiority capable of humiliating and debasing the victim and possibly breaking their physical or moral resistance
punishment.
What is article 8 ECHR?
Article 8 – respect for private and family life
Article 8 states:
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
What act of parliament incorporated the European Convention on Human Rights into domestic law?
Human Rights Act 1998
What legislation governs the use of force?
1) The Human Rights Act 1998 (which gives further effect to the rights and freedoms guaranteed under the European Convention on Human Rights)
2) Section 3(1) Criminal Law Act 1967
3) Section 117 Police and Criminal Evidence Act (PACE) 1984
4) Common Law (provisions in respect of self-defence)
5) Section 76 of the Criminal Justice and Immigration Act 2008 (which was not intended to change the law relevant to armed policing but to restate the common law principles of self-defence)
6) Police Regulations Relevant to the Use of Force and Firearms (the Police (Conduct) Regulations 2012, the Police Standards of Professional Behaviour, PSNI’s Code of Ethics and the Police Service of Scotland (Conduct) Regulations 2013)
What is the key issue arising from (McCann v United Kingdom (1995) 21 EHRR 97)?
Firearms operations need to be planned to minimise, to the greatest extent possible, recourse to the use of lethal force.
What is s3 Criminal Law Act 1976
A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.
What is s117 PACE?
Section 117 of PACE apply where any provision of this Act
a. Confers a power on a constable, and
b. Does not provide that the power may only be exercised with the consent of some person, other than a police officer,
the officer may use reasonable force, if necessary, in the exercise of the power.
What is corporate homicide? The Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA)
Under s 1(1) of the CMCHA, an organisation is guilty of an offence if the way in which its activities are managed or organised:
a. Causes a person’s death; and
b. Amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.
An organisation is guilty of an offence only if the way in which its activities are managed or organised by its senior management is a substantial element in the breach referred to in CMCHA 2007 subs (1).
What is s3 Health and Safety at Work Act 1974?
Section 3(1), which states:
It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health and safety.
What is misconduct in public office?
Common law offence.
The elements of misconduct in public office are:
a public officer acting as such; and
wilfully neglects to perform his duty and/or wilfully misconducts themself; and
to such a degree as to amount to an abuse of the public’s trust in the office holder; and
without reasonable excuse or justification.
What are the duties of a police officer who believes that improper force is about to be used?
Any police officer who has reason to believe that improper force has been used or is about to be used by another police officer shall, to the best of their capability, prevent and rigorously oppose any such use of force.
