Public 7 Articles 2,3 and 5

Article 2

Right to Life

Exceptions to Article 2 (Right to life)

1. defence of any person from lawful violence
2. In order to effect a lawful arrest or prevent escape
3. During a riot or insurrection

McCann, Farrell and Savage v UK

There is a negative obligation to refrain from killing and an investigative duty to fully investigate cases of killing by state agents, any killing must be a proportionate response

Al-Skeini v UK

Investigative duty under Article 2 extends extraterritorially

R(Amin) v SoS for the Home Department

In situations where a death has been caused by a third party rather than state agents, there is also a duty to investigate

Positive Obligation under Article 2

requires states to have criminal justice systems that punish and deter homicide

X and Y v The Netherlands

Breach of positive obligation by lacking a provision

Article 2 Operational Obligation

Requires state to take preventative measures to protect individuals when their life is at risk from other individuals or from suicide

Rabone v Pennine Care NHS Trust

Trust breached its operational duty after assuming responsibility and control over a patient and failing to take steps to prevent the real and immediate risk of suicide

Article 3

The right not to be subject to torture or inhuman and degrading treatment

Inhuman and Degrading Treatment

Not defined but relevant factors are:

* Nature and context of the treatment. 
* The manner of its execution. 
* Its duration. 
* It's physical and mental effect. 
* Its impact on the health of the person involved both positive and negative

Ireland v UK

Torture is an aggravated, deliberate and cruel form of treatment or punishment

Aksoy v Turkey

Electrodes on genitals, regular beatings and water thrown over a person amounts to torture

Napier v The Scottish Ministers

Poor prison conditions that cause health problems may amount to inhuman and degrading treatment

R (Q) v SoS for the Home Department

There is a positive duty to prevent torture or inhumane and degrading treatment

Chahal v UK

Expedition to a country/ non-public authority that may carry out an Article 3 violation will not be lawful

DSD and NBV v Commissioner of the Metropolis

Investigative duty for potential breaches of Article 3

Article 5

Right to Liberty and Security of a Person

Article 5(1)

Provides the basic substantive rights to liberty and the circumstances in which the state can lawfully deprive persons of their liberty such as arrest

Article 5(2)

Right for a person to be informed of the reasons for their arrest

Article 5(3)

The person who has been arrested and detained shall be brought promptly before a judge

Article 5(4)

States that a person who has been deprived of their liberty by the state “shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court, and his release ordered, if the detention is not lawful

Article 5(5)

Contains an enforceable right to compensation for a victim of an Article 5 breach

Engel v Netherlands

A restriction of liberty is not a deprivation of liberty, the starting point for distinguishing between the two is looking at the concrete situation

Kettling

involves placing a cordon around the crowd in order to confine it to a specific area, sometimes for several hours

Austin v UK

Kettling will not breach article 5(1) where it is proportionate and not imposed arbitrarily

Re JJ

Depending on their intensity, a control order may breach article 5(1) for deprivation of liberty

Requirements for Lawful Deprivation

Must fall into one of the limitations and be prescribed by law

Silver v UK

Deprivation can be prescribed by law in either statute or case law

Sunday Times v UK

A prescribed legal basis must have certain qualities

* Adequately accessible
* Enable the citizen to regulate his conduct
* Citizen able to foresee the consequences

Gillan and Quinton v UK

Unreasonable but technically legal stop and search powers did not meet the Sunday Times Test and so were in breach of ECHR

Article 5(1)(c)

Person may be deprived of their liberty if “the purpose of bringing him before the competent legal authority on **reasonable suspicion** of having **committed** an offence or, when it is **reasonably** considered necessary to **prevent** his committing an offence or fleeing after having done so”

Fox, Campbell and Hartley v UK

Under the first limb of s5(1)(c), there must be reasonable suspicion that would satisfy an objective observer

S, V & A v Denmark

The second limb of s5(1)(c), detention for preventative purposes should be proportionate followed by prompt release

Fox, Campbell and Hartley v UK (Reasons)

Questioning in relation to specific offences can provide enough detail to satisfying the informing requirement

Brogan v UK

Restrictive approach to the requirement of promptness for being brought before a judge

McKay v UK

36 hours prompt enough to satisfy the 5(3) requirement

Hirst v UK

Intervals of more than one year are generally not treated as reasonable when deciding release from detention

Section 8 HRA 1998

Determines the remedy for breach in the UK courts