Right to Life Cases Flashcards
R (Nicklinson) v Ministry of Justice (2014)
ECHR Art 2
• In 2005, man suffered severe stroke which left him paralyzed from the neck down
o Wanted to end his life but couldn’t commit suicide without assistance
o Applied to the High Court for a declaration that either:
• It would be legal for a doctor to assist in his suicide; or
• The present legal regime concerning assisted suicide is incompatible with Article 8 of the European Convention on Human Rights (Right to respect for private and family life)
• Held by ECHR: the question of assisted suicide falls within a state’s margin of appreciation
Pretty v UK (2002)
ECHR Art 2
• Woman dying of motor neuron disease, end stage would be distressing and undignified
o Wanted to determine when and how she would die
• But wasn’t in a position to commit suicide
• Wanted husband to help her
• But: assisting in a suicide is a crime in the UK
• Asked for assurance from Director of Public Prosecutors that he wouldn’t be charged…
o Request refused
• (ECHR Strasbourg) Court held: no violation of art. 2
o Right to life in article 2 could not be interpreted as conferring right to die
• State obliged to protect life, not the opposite
• So: no right to die, whether at hands of third person or by a public body
• Thus no right to assisted suicide either
McCann and Others v UK (1995)
ECHR Art 2
• UK authorities received intel that IRA terrorists planning attack
• 3 suspects, planning to detonate a car bomb
o One was a known explosives expert, the other two had been convicted of offences relating to explosives and terrorism
• Suspects seen crossing border, seen examining a parked car
o Soldiers inspected car, saw something that they suspected was a remote-controlled car bomb
• No attempt taken at that time to diffuse
• Decided that suspects should be arrested, officers instructed to use lethal force if necessary because of the device attached to the car
o In trying to arrest, suspects make moves as though reaching for something, soldiers think they’re reaching for remote or weapons and shoot them
• But, suspects didn’t have any weapons or detonating devices, and there was no bomb in that particular car, though there was a bomb found in Spain in a car registered to suspect
• Families of victims brought case against the UK for violation of article 2 paragraph 2
• Was this a proportionate response to the perceived threat? Was it absolutely necessary under the terms of Article 2 ECHR?
• Court said:
o “Absolutely necessary” is a stricter test than elsewhere in the convention (i.e. where their actions necessary for the protection of a democratic society?) -> actions of state subject to much stricter test than elsewhere
o # of factors considered by court
• Suspects were known by IRA, previously convicted for terrorism related offences, also had duty to protect people of Gibralter, as well as to soldiers
o Found that:
• Soldiers who shot suspects did not violate article two
• Use of force was justified as it was based on an honest belief which is perceived for good reason to be valid at the time but which subsequently turns out to be mistaken. To hold otherwise would be to impose an unrealistic burden on the state and its law enforcement personnel. There was no violation of Article 2 ECHR in this regard.
• They genuinely believed it was necessary to shoot to protect the life of innocents
o So use of force by agents of state can be justified when based on an honest belief that there were good reasons, which were valid at the time
• Found that the operation as a whole DID violate article 2
• Not enough was done to minimize, to the greatest extent possible, the recourse to the use of lethal force. This violated the UK’s obligations under Article 2
Osman v UK (1997)
ECHR Art 2
• High school teacher developed “disturbing attachment” to a 14 year old student, Ahmed Osman
• Followed him home, took pictures of him, gave him money
• Policemen visited school, but nothing happened
• Teacher legally changed name so that it was very similar to that of Ahmed
o Headmaster alerts police
• Teacher examined on 3 separate occasions by psychiatrist
o Psychiatrist found that he was not technically mentally ill but he should be removed from the school immedietly
• Suspended, pending investigation
• After this, there were a number of attacks on Osman home, all reported to police
• Teacher investigated further befcause he drove his car into another student, because he was jealous of that student’s relationship with Ahmed
• Teacher asks to be interviewed by educational authority
o Hints at potentially carrying out a shooting
• Police go to home to arrest, but he’s gone
• Few months later, shoots and kills Ahmed’s father, wounds Ahmed,
• UK held to have infringed on right to life of Osman’s
• Article 2 implies duty to take positive action in certain cases to protect individuals
o Scope:
• Obligation to protect life has to be interpreted in such a way that it doesn’t impose unreasonable duty on authorities
o Test:
• “The authorities knew or ought to have known at the time of the existence of a real and immediate risk of life of an identified individual or individuals […] and they failed to take measures within the scope of their powers which judged reasonably, might have been expected to avoid that risk”.
Chief Constable of Hertfordshire Police v Van Colle (2008)
ECHR Art 2
• Mr. Van Colle employes Mr. B at opticians practice
o After a few weeks, they got into a physical argument, Mr. B never comes back to work
o Later, B is arrested for stealing from another optician
• A lot of items found in his garage, including items he had stolen from Mr. Van Colle
o Mr. VC’s car set on fire under seemingly suspicious circumstances
• Police say not suspicious, insurance says suspicious
• Mr. VC doesn’t tell police what insurance says
o Mr VC gets threatening call from Mr B, urging him to drop charges
• VC calls and leaves message for police
o Before police can get to him, VC shot and killed by Mr. B
• Osmond test applied
o court should endeavour to place itself in the position of the police officer and “assess events as they unfolded through his eyes” per Lord Bingham at [32]
LCB v UK (1998)
ECHR Art 2
• British national diagnosed with Leukemia in 1970s
o in 1950s, her father was present during nuclear tests on Christmas Island
• Said because her dad was exposed to radiation, this led to her developing cancer
• UK failed to warn her parents of the possible risk to her health
• Held: no breach of article 2
o Radiation didn’t reach dangerous enough levels to warrant UK contracting soldiers
o Weren’t satisfied that there was a causal link
o Taking into account information available to UK at the time, UK had done all it was reasonably expected to do
Armani da Silva v UK (2016)
ECHR Art 2
• Applicant was a relative of Mr. Da Silva was mistakenly identified as a terrorist suspect and shot dead on 22 July 2005 (shortly after London underground bombings)
• Did investigation fulfill procedural requirement of art. 2?
• Found that investigation as a whole was within article 2
o Was an effective and thorough investigation into facts, involving all of the appropriate people
o ““The Metropolitan Police Service (MPS) had publicly accepted that he had been killed in error by special firearms officers. A representative of the MPS had flown to Brazil to apologise to his family face to face and to make an ex gratia payment to cover their financial needs. They were further advised to seek independent legal advice and assured that any legal costs would be met by the MPS. The individual responsibility of the police officers involved and the institutional responsibility of the police authority were considered in depth by the IPCC, the CPS, the criminal court, and the coroner and jury during the inquest. Later, when the family brought a civil claim for damages, the MPS agreed to a settlement with an undisclosed sum being paid in compensation. The decision to prosecute the police authority did not have the consequence, either in law or in practice, of excluding the prosecution of individual police officers as well. Neither was the decision not to prosecute any individual officer due to any failings in the investigation or the State’s tolerance of or collusion in unlawful acts; rather, it was due to the fact that, following a thorough investigation, a prosecutor had considered all the facts of the case and concluded that there was insufficient evidence against any individual officer to meet the threshold evidential test”
NHS Trust A v M (2001)
ECHR Art 2
• Hospital wanted to withdraw artificial feeing/ hydrating of person in vegetative state
• Held: article 2 imposes positive obligation to give treatment, BUT not where it would be futile
o Discontinuing treatment would not be an intentional deprivation of life under Article 2, when withdrawing treatment was in line with a respected body of medical opinion
Charles Gard and Others v UK (2017)
ECHR Art 2
• Sick little boy, parents wanted him to receive very new, experimental treatment
o UK authorities said no
• Held: “Article 2 of the Convention cannot be interpreted as requiring access to unauthorised medicinal products for the terminally ill to be regulated in a particular way”
o Leaving it up to states
Al-Skeini and Others v UK (2011)
ECHR Art 2
• Applicants were relatives of Iraqi civilians killed in southern Iraq by British Armed Forces during occupation of Southern Iraq
• -> Was UK responsible under Art. 2 for their deaths?
o “A State’s jurisdictional competence under Article 1 is primarily territorial. Jurisdiction is presumed to be exercised normally throughout the State’s territory. Conversely, acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction within the meaning of Article 1 only in exceptional cases”
o UK is responsible for people within its territory, but in exceptional circumstances can apply extraterritorially:
• State agent authority and control (e.g. diplomatic staff working overseas)
• When there exists “effective control” over an area
• Where a contracting party to convention exercising some or all of the public powers ordinarily exercised by the government in that area
• Question of fact
• In this case, held that UK held this effective control over individuals killed during military operations
o TF convention applies
• Where contracting party detains a foreign national overseas and holds them in a facility controlled by them
Smith and Others v Ministry of Defence (2013)
ECHR Art 2
• Extraterritorial effect also applies to British soldiers
o “Servicemen and women relinquish almost total control over their lives to the state. It does not seem possible to separate them, in their capacity as state agents, from those whom they affect when they are exercising authority and control on the state’s behalf”
Tagayeva and Others v Russia
ECHR Art 2
• Terrorist attack on school in 2004
o 30 terrorists held over 1,000 people hostage
• Russian military launches counter-attack hundreds died
• Russia found in violation of article 2 for:
o Failing to take preventative steps or minimize terrorist attack
o Carrying out an ineffective investigation
o Being deficient in the planning of the rescue operation
o Not establishing clear framework for when lethal force could be used
