Chapter 9 Guidance on answering the exam questions

1. Discuss and evaluate the requirements of Article 3 regarding a duty on states to provide for public safety in respect of the use by the police and the military of firearms in public places.

• This question requires knowledge of the possible application of positive obligations in Article 3 that might arise in this situation (a situation that is more usually considered in respect of Article 2.)
• An outline of Article 3 might be useful here – especially to make the point that, subject to a context-dependent threshold of severity, it places an absolute duty on the authorities not to commit actions that involve torture, etc. but also, relevant to this question, may create positive duties on states to protect people from treatment that may breach Article 3. This can include actions by the authorities that cause suffering above the threshold (refer here to the definition of inhuman and degrading treatment in Pretty).
• Actions by the authorities that leave people in a state below the Article 3 threshold, even though not deliberately targeted, can breach Article3 (e.g. in regard to welfare payments) and so this is a matter that must be taken into account when lethal force is being contemplated by the authorities.
• Note that, under Article 3, there needs to be a proper system of laws and procedures for dealing with alleged breaches by the authorities. Included in this is a proper system of training. These will need to include measures to take into account threats to the safety of the public from the use of potentially lethal force.
• But the authorities will also have duties under Article 3 as much as Article 2 to prevent harm to the public. It is worth noting in this context of positive duties that the duty may not be absolute, it will be more a duty to do what is reasonable in the context (see, for example, E v Chief Constable of the RUC).
• In conclusion you could suggest that, for the reasons given, Article 3 can be relevant in the situation given.

2. A suspected child kidnapper is detained by police. On good grounds they believe he has an accomplice who is holding the child and that the suspect knows where the child is. They believe the child to be in serious danger. The police subject the suspect to loud noise, he is denied food and sleep, and made to stand for hours on end in an uncomfortable posture.

As a lawyer for the police, advise them on the principles that a court would take into account in considering whether there has been a violation of Article 3.

• This question requires you to discuss the negative and positive duties in Article 3, the meaning of terms and its “absolute” nature. You could refer to Gafgen v Germany as indicating some of the principles that will be applied.
• In terms of negative duties, Article 3 prohibits torture and inhuman or degrading treatment or punishment.
• One question is whether the treatment referred to in the question comes within the scope of torture etc. Consider the definitions in Ireland v UK and in Pretty v UK. In respect of torture you could also refer to UNCAT, which the ECtHR has taken into account. Case law, such as Aksoy v Turkey and Selmouni v France might be considered. At the very least the behaviour in the question is likely to be “inhuman treatment” (it is similar to Ireland) but it might now be thought “torture” given the changing standards.
• Thus your advice is likely to be that the behaviour of the police is within the threshold of seriousness in respect of Article 3.
• A second point is whether the motive of the police (to save the life of another) is a full excuse. The answer is no and you should make the point that Article 3 is an absolute prohibition. This is based not only on the peremptory text of the Article but also on an exemption from derogation in Article 15.
• Thus your advice is likely to be that the police are in breach of Article 3. The good motive does not justify the torture.
• Thirdly, you could discuss the positive duties on states to have a legal system that can protect Article 3 rights, including by proper processes for punishing officials, if necessary. Gafgen suggests that whilst the police’s good motive may be taken into account, there does have to be a substantial penalty imposed; a light or suspended sentence might breach Article 3.