Know your rights

In the previous article, I introduced the Human Rights Act 1998 and considered its effect on domestic law. The next three articles will focus on the way in which these principles have influenced the exercise of investigative powers.

The following rights are relevant in this context:
n Article 2 – right to life
n Article 3 – right to freedom from inhumane and degrading treatment
n Article 5 – right to liberty
n Article 6 – right to a fair trial
n Article 8 – right to privacy and family life.

Article 2 – the right to life

(1) Everyone`s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

(2) Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.
Article 2 is one of the most fundamental provisions of the Convention from which no derogation is permitted, even in times of national emergency. Its provisions must be strictly construed, and any deprivation of life must be subjected to ‘the most careful scrutiny’ (McCann, Savage and Farrell v United Kingdom).

There is a positive obligation on the police to take reasonable steps to protect potential victims from a real and immediate threat to their lives which is attributable to the actual or threatened criminal acts of a third party (Osman v United Kingdom). This also means that the state is under an obligation to conduct an effective official investigation into alleged breaches of the right to life. If necessary, the authorities must initiate such an action and cannot leave it to the next-of-kin to make a complaint or take proceedings. The investigation must be independent, thorough and prompt, and must be capable of leading to the identification and, where appropriate, the punishment of those responsible. There must be a sufficient element of public scrutiny of the investigation or its results to ensure accountability and the next-of-kin must be involved to an extent necessary to safeguard their legitimate interests (Jordan v United Kingdom).

In the context of criminal investigation Article 2 places a duty on the state to conduct an effective, efficient and independent investigation where death results from actions of the state, and this duty extends beyond the police to the prison authorities and others. The extent to which this places a duty on the state to investigate unlawful killings which do not involve its agents is controversial. The police have a duty at common law to keep the peace and positive obligations towards victims under the European Convention on Human Rights.

Article 3 – prohibition of torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
In order to constitute a violation of Article 3, the treatment or punishment complained of ‘must attain a minimum level of severity’ (Ireland v United Kingdom). The threshold is relative and will depend on the’ sex, age and state of health’ of the victim (Campbell and Cosans v United Kingdom). The law must provide adequate protection for individuals against the infliction of inhuman or degrading treatment by other private individuals.

Article 3 potentially arises in the context of conditions of detention, the taking of intimate samples and the questioning of suspects.

Article 5 – the right to liberty

(1) Everyone has the right to liberty and security of the person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent