Chapter 8 Guidance on answering the exam questions

1. An armed man is holding a woman hostage. The police end the siege violently, causing the death of both the armed man and his victim. The victim’s family is seeking a remedy from the courts alleging a breach of Article 2.

Advise the family on the principles, based on Article 2, which should have governed the way the issue was handled by the authorities.

• This question requires a general consideration of Article 2 specifically in respect of the requirements concerning the use of lethal force by the authorities. You could base your discussion around the principles enunciated in McCann v UK or as repeated in latter cases such as Giuliani and Gaggio v Italy.
• Consider what Article 2 says regarding the use of lethal force. Express the idea of the general duty on states to protect life. Then consider the second paragraph in respect of intentional killing must be unlawful (e.g. by giving rise to a murder trial) unless it is “no more than is necessary” in the circumstances and done for one of the three purposes listed in the second paragraph.
• In this scenario the state would have to satisfy a court that the purpose of the use of lethal force was within Article 2 – in particular that the force was used to save the life of another or to effect a lawful arrest. This is unlikely to be the focus of the case.
• Article 2 also requires that the use of lethal force be no more than is absolutely necessary and (given general principles of Convention law) proportionate.
• Very little factual explanation for the shooting is given in the question. Following McCann v UK, the issues of necessity and proportionality may engage the state of knowledge of the police officers who did the shooting – such as whether they made a mistake as to identity and whether the mistake was based on reasonable grounds. In particular the proportionality of the use of force may relate to the extent of effective planning and proper control that should, given the circumstances, have been done. Issues such as the appropriateness of the weaponry may also be relevant.
• Although the ECtHR does look at such issues, it is well aware of the difficulties of the situation and the kinds of immediate decisions, often on the basis of inadequate information, that have to be made.
• In conclusion, given the absence of information given in the question, it will not be possible to come up with a clear answer. The important thing is to demonstrate understanding of the issues around which the court’s conclusion will be structured.

2. Evaluate the extent to which Article 2 places a duty on states to bring about a safe environment; or is it merely confined to providing remedies after deaths have occurred?

• This question requires you to display knowledge and understanding of the reach of Article beyond the use of lethal force by the police and security services.
• From early cases (e.g. Osman v UK) the ECtHR has recognized that Article 2 may impose positive duties – duties to protect. This is based on the general duty in the first paragraph of Article 2.
• Positive duties go beyond the duty to protect a named individual in respect of whom there is a real risk of deadly harm (as in |Osman).
• Article 2 can, for instance, require the state to take reasonable steps to protect people, including their own personnel, from hazardous activities for which the state is directly responsible. In Smith v MoD, a case brought under the HRA, the UKSC held that such a duty could, in principle, be owed in relation to some decisions made in the context of overseas combat.
• Article 2 can also apply (in the sense of placing a duty on states to provide a safe environment) in respect of people such as prisoners who entirely under the control of the state and living in institutions and environments controlled by the state (e.g. Keenan v UK). A safe environment can include a duty to keep people from self-harm and to recognize the special needs of, for instance, prisoners with disabilities.
• Similarly, Article 2 can be relevant in respect of patients in hospitals – whether private or public (NHS). This is a duty to ensure (e.g. by law or by administrative policy) that such vulnerable people are safe from themselves and from others (see Rabone v Pennine Care).
• Article 2 can also place a duty on the state to create an adequate legal regime in respect of the safety of hazardous activities by private, commercial, local government or public organisations (e.g. Oneryildiz v Turkey).
• Having identified the circumstances in which a duty might arise, it is worth discussing the variable nature of the duty – it can vary in expression from a duty to do what is reasonable to a duty to do what is necessary to keep people safe. In particular, the duty is, normally, not just to have appropriate regulation and policies but also to ensure there is a proper legal system of investigation and remedies so that civil remedies and criminal penalties are available if necessary.
• In conclusion you can point out the developing extent of Article 2 and that these positive duties flow from the jurisprudence of the Court, rather than being clearly expressed in the text of the Convention, and have developed in a case by case basis, as demonstrated by the examples given above.