European Convention

European Convention on Human Rights guarantees the right to life. • However Article 2(2) of the European Convention on Human Rights provides for exemptions from the protection of the right to life. By virtue of Article 2(2), “deprivation of life” is not a contravention of Article 2 if death is a result action taken to “effect a lawful arrest” or action “lawfully taken for the purpose of quelling a riot or insurrection” , or “in defence of any person from unlawful violence. ”

On the facts of the case, PC Board was not attempting to make an arrest although he had reasonable grounds to suspect that James was carrying a bomb, an arrestable offence. However, having regard to the recent bombing on the premises and the fact that James and the others resembled the three men seen leaving the scene of the bombing, appeared to be carrying a bomb and did not heed the officers command to stop, PC board had a reasonable apprehension that force was necessary to defend against unlawful violence. Therefore, it is very unlikely that Article 2 of the European Convention on Human Rights was contravened.

Whether or not the Home Secretary can successfully obtain passage of an act which essentially derogates from Article 5 of the European Convention on Human Rights is governed by Article 15. Article 5 protects against deprivation of liberty and mandates that any person lawfully arrested is entitled to be charged or released within a reasonable time. The proposed act appears to deviate from the provisions contained in Article 5. • It also appears to contravene Article 3 which protects against inhuman punishment and treatment.

The proposal to commit a certain class of suspects to solitary confinement and aggressively interrogate them certainly would contravene Article 3. • Article 15 however provides for derogation from the provisions of the European Convention on Human Rights as follows: “In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

” • Although Article 15 was not incorporated by the Human Rights Act 1998, Section 14 allows for derogation on vastly similar terms. • The House of Lords in A v Secretary of State for the Home Department [2005] 2 AC 68 determined that although it was for parliament to determine, ultimately derogation would not be justified unless public emergency required it. • The European Court of Justice had previously ruled that in conducting a judicial inquiry into whether or not derogation was justified:

“…in exercising its supervision the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation, the circumstances leading to, and the duration of, the emergency situation. ” In the event the acts of extreme violence complained of are unprecedented, the Act may be justified. In any event it would have to have a sunset clause to the extent that it would only be a provisional measure. In other words, the exigencies of the circumstances must be proportionate with the statutory provision.

• In no circumstances would the Act stand up to judicial review if it were discriminatory in nature. As long as it applies to all suspect and not a particular class, gender or race of suspects, it can be justified if the exigencies of the circumstances require it. Bibliography A v Secretary of State for the Home Department [2005] 2 AC 68. Brannigan and McBride v United Kingdom (1993) 17 EHRR 539. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374. European Convention on Human Rights. Fairgrieve, State Liability in Tort: A Comparative Law Study (Oxford University Press, London 2003).

Gustafsson v Sweden Case no. 15573/89[1996] ECHR 20. Human Rights Act 1998. O’Rourke v Camden LBC [1989] AC 188. Percy v. Director of Public Prosecutions [1995] 1 WLR 1382. Public Order Act 1986. R v Chief Constable of Devon and Cornwall, ex parte Central Electricity Generating Board [1982] QBD 458. R (Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2 WLR 46. R v Panel for Takeovers and Mergers Ex P Datafin [1987] 1 QB 815. Singh, R v Chief Constable of West Midlands Police [2006] EWCA Civ 118.