The right to life - operational policing and the investigation of fatal incidents
Introduction
You might imagine that, of all the panoply of human rights, the right to life has had little relevance for us in the UK. After all, it is not a country where it is common for people to die because of human rights violations. If that is your perception, then I hope that this brief foray into the field will prove to be of interest, as the opposite is the case: in fact, the right to life (the subject of Article 2 of the European Convention on Human Rights) has had a significant impact on our laws and practices.
Its remarkable influence is, I would suggest, a consequence of both its breadth and depth. The right to life applies not only to situations, as you might expect, where the British army, security services or police decide they need to resort to use their weapons in response to a dangerous threat, but also to vulnerable prisoners, and the victims of trafficking, domestic violence and environmental disasters.
There is surprising depth, too. In a law enforcement situation, the right to life will not only have a bearing on police officers’ decisions, for example, to fire a weapon, but also on the way in which the particular operation was planned and managed by the police, and how the incident was subsequently investigated. Failings at any of these stages could mean that the victim’s right to life was violated.
But you would never have been able to glean all of this from the wording of Article 2 itself – we have only learnt this because of the way the courts (and other public bodies) in the UK, and the European Court of Human Rights (ECtHR), have considered and applied it in many different situations, from individual shootings to large-scale inquiries and mass fatal tragedies, such as Hillsborough and Grenfell.
There is far too much to say in this short post, and so I will limit myself to just two subjects: firstly, the duties arising when the authorities plan and conduct operations using force, involving the police and the security forces, and, secondly, the various obligations which arise in investigating fatal incidents.[2]
Policing the police - operational obligations[3]
At its most elemental, the right to life sets out the circumstances where it may be lawful for state agents to use lethal force – subject always to the fundamental rule that they may use no more force than is absolutely necessary. If you think about it, that is a very high standard – and rightly so. The right obviously applies to a police officer’s decision to deploy a weapon – but it also has much broader application, to the whole context, to take in the way that such an operation was planned and conducted. This means that the right imposes a range of duties on the state.
Within the UK, the right to life has proved to be of particular importance in Northern Ireland, as a result of the conflict there from the late 1960s to the mid-1990s, which caused more than 3,600 deaths. One landmark case which arose in that context was McCann v UK, which for the first time laid down standards for the planning and control of policing operations. The case concerned the fatal shooting in Gibraltar of three members of the Irish Republican Army (IRA) by British Special Air Service (SAS) officers, as they were believed to be about to detonate a bomb with the aim of killing British soldiers. However, they were not in fact in possession or control of a bomb at the time, but were on a reconnaissance mission for the planting of a bomb.
The relatives of the IRA members took a case to the ECtHR where they argued that the killings breached the right to life. The ECtHR found that the SAS officers had honestly and reasonably (albeit mistakenly) believed that it was necessary to shoot the suspects in order to prevent them from detonating a bomb and causing loss of life. However, by a narrow margin of ten judges to nine, the ECtHR held that the right to life had still been violated, as a result of the failures in the conduct and planning of the operation. The ECtHR was critical of the authorities’ decision not to prevent the suspects from travelling into Gibraltar – in other words, the security forces could have intercepted them earlier which would have obviated the need to use lethal force. The ECtHR also found that the authorities had not made sufficient allowances for the possibility that their intelligence assessments might, at least in part, have been wrong.
The judgment was intensely controversial at the time. The then Deputy Prime Minister, Michael Heseltine, said that the Government would ‘ignore it and do nothing about it’. However, over time, the standards established by the judgment on the control and planning of operations have become accepted, and are now enshrined in guidance for police on the management, command and deployment of armed force.[4]
What is required when investigating a fatality?
When someone dies in circumstances suggesting that the state may have been at fault in some way, it will be essential to try to find out exactly how and why they died. The main rationale for this is not to point the finger of blame (although in some situations a death may lead to someone being prosecuted), but is preventative - to establish the cause of death, so that similar occurrences can be avoided in the future. The way in which the courts have applied the right to life has had a significant impact on investigative and prosecutorial processes following deaths at the hands of the state or in respect of people who have been in the custody or care of the state.[5]
One of the leading cases in this area, Hugh Jordan v UK, is again from Northern Ireland. It concerned the fatal shooting in Belfast of an unarmed man, Pearse Jordan, by officers of the Royal Ulster Constabulary (RUC). The RUC then carried out an investigation into the death, on the basis of which the Director of Public Prosecutions decided that there would be no prosecutions. However, the ECtHR later found that there was a breach of the duty to carry out an effective investigation into the death of Pearse Jordan, because of a series of shortcomings.
Most fundamentally problematic was the lack of independence of the investigating police officers from the officers involved in the events – they were all from the RUC. The ECtHR was also critical of a series of procedural failings, including the inadequacy of the information provided to the victim’s family about the reasons for the decision not to prosecute anyone. In addition, the procedures at the inquest were found to be deficient as the officers who shot Mr Jordan could not be required to attend the inquest to give evidence as witnesses, witness statements were not provided to the Jordan family in advance, and the inquest itself was too protracted. In a similar vein, the Supreme Court decided in 2019 that an inquiry into the murder in 1989 of Belfast solicitor Patrick Finucane had not met the requisite right to life standards, because witnesses could not be required to give evidence, those who did were not sufficiently probed or challenged and one potentially crucial witness was excused attendance.
In cases like these, arising in the particular context of Northern Ireland, the right to life has provided a legal framework within which to assess the competing claims - between families wanting to find out what happened and why (in particular where there were allegations of state collusion in killings), and the state authorities which were reluctant to reveal their sources of intelligence, including the use of informers, whose lives might be at risk if their identities were disclosed.
What is more, cases like Jordan pointed collectively to broader systemic failings in the investigative and prosecutorial processes, and in the years which followed, the UK Government responded to the cases with a series of changes to law, policy and practice, some of which were specific to Northern Ireland,[6] and others UK-wide. For example, in 2000, the office of the Police Ombudsman for Northern Ireland was created to conduct independent investigations of complaints against the police, and in 2003 the Serious Crime Review Team was established to review unsolved major crimes in Northern Ireland (which became the Historical Enquiries Team in 2005). In 2006, a new Coroners Service was launched in Northern Ireland, with the aim of speeding up the inquest process.
Beyond the specific legacy in Northern Ireland, the right to life case-law established the essential requirements that must be met in carrying out an investigation into cases in which Article 2 may have been breached. These are: effectiveness; independence; promptness; accessibility to the family, and sufficient public scrutiny to ensure accountability. These principles have been held by both the ECtHR and domestic courts to apply to circumstances beyond those involving deliberate killing by state agents.[7] For example, they were applied in cases involving: the killing of Zahid Mubarek in a young offenders’ institution by a cell mate with a known history of violence and racism; the death after an asthma attack of Paul Wright, who had a known history of asthma and received deficient medical treatment while in prison;[8] and the deaths by suicide while in custody of Mark Keenan and Colin Middleton. Indeed, the Middleton case led the House of Lords to broaden the very remit of inquests in the UK so as to comply with the state’s obligation to carry out an effective investigation.[9]
Of course, in assessing human rights standards, the courts will take full account of the particular pressures on police officers in operational situations. This is illustrated by the case of Armani Da Silva v UK which concerned the fatal shooting by police officers of Jean Charles de Menezes in July 2005, following the London underground suicide bomb attacks, apparently due to mistaken identity. Citing Article 2, the victim’s family complained about the decision not to prosecute any officers following the shooting, but the ECtHR found there had been no violation of the right to life. Be that as it may, the various factors which the ECtHR took into account demonstrate the positive influence of the right to life case law on post-death practices by this time: there had been public acknowledgment of an error by the police and a personal apology given to the family; compensation had been paid, as well as an offer made to fund legal fees; both the institutional responsibility of the police and the individual responsibility of the officers involved had been considered in depth by the Independent Police Complaints Commission (IPCC),[10] the Crown Prosecution Service, the criminal court and during the inquest; and institutional and operational failings were identified and detailed recommendations issued to ensure that the mistakes made were not repeated.
Domestic violence
It is clear, however, that there is still much to be done in applying these standards to the effective investigation of domestic violence in the UK. The UN Special Rapporteur on Violence against Women has recorded, as regards police responses to domestic violence, ‘a pattern of continued scepticism, indifference and a lack of empathy towards women, particularly women from black and minority ethnic communities’. It is well established legally that where domestic authorities, such as the police, fail to appreciate the seriousness and extent of the problem of domestic violence, this will not just be treated as an isolated failure in dealing with violence against women, but also as a repetition of acts reflecting a discriminatory attitude towards victims on account of their sex (e.g., Volodina v Russia).
In addition to the obligation to investigate, the right to life also imposes a duty of prevention on the authorities. However, the Femicide Census reported in 2020 that 1,425 women had been killed in the UK in the period from 2009-2018, which prompted the Observer to report that
‘A history of abuse was evident in at least 611 cases (59%), including coercive control, stalking, harassment and physical, financial and emotional mistreatment. A third of the women had reported their abuse to the police. They still died’.
The human rights of vulnerable prisoners
As will be evident from some of the cases mentioned in the previous section, the right to life has been interpreted as requiring the authorities to take particular steps to protect vulnerable people in state custody or care – especially prisoners. The case of Paul and Audrey Edwards v UK concerned the killing of a young man, Christopher Edwards, during his detention on remand, by another detainee who was considered dangerous and with whom he was sharing a cell. In human rights terms, at the heart of the case was the failure of the agencies involved (the medical profession, police, prosecution and courts) to pass on information about the second detainee to the prison authorities and the inadequate nature of the screening process on his arrival at the prison. Furthermore, the inquiry into Edwards’ death was considered defective, because it had not been possible to oblige prison staff to give evidence and also because Edwards’ parents were not sufficiently involved in the procedure. This case, and others like it, have led to significant changes within the prison service aimed at ensuring prisoners’ safety.[11]
The right to life and public inquiries – Hillsborough and Grenfell
Beyond the policing realm, the principles established by the right to life will have application to fatal tragedies involving wider scale loss of life.
In April 1989, 96 football supporters were crushed to death at a match between Liverpool and Nottingham Forest played at the Hillsborough stadium in Sheffield. After years of uncertainty and bitter division over the causes of their deaths, it was in the late 2000s when critical additional documentation finally came to light and the Hillsborough Independent Panel was appointed by the Home Secretary in 2010 (reflecting human rights considerations) to oversee and manage the process of public disclosure of documents, to consult with the families to enable their views to be taken into account, and to publish its findings.
After reviewing over 450,000 pages of documentation, the panel published its report in 2012, concluding that the risks of overcrowding and crushing at the Hillsborough stadium had been known to the authorities, that the crush was not caused by fans arriving late and there was no evidence of fans’ excessive levels of alcohol consumption. The panel also expressed concerns about the response of the emergency services, which had never previously been fully examined because of the limited remit of the original inquests, and concluded that significant numbers of those who died could have survived had there been a better emergency response. As a result, the original inquests were quashed and new inquests ordered, and in 2012 a new criminal inquiry into the Hillsborough tragedy was announced and a fresh investigation was established by the IPCC into claims of police misconduct in the aftermath of the disaster.
Analysing these developments, Dr Peris Jones has lamented the original ‘cover up’, the demonisation of working class football fans and the authorities’ initial success in absolving themselves of any responsibility. According to Jones, justice was achieved because of the ‘sea change’ in the 2000s through the enactment of the Human Rights Act 1998 and the Freedom of Information Act in 2005 which ‘provided important hooks for accountability’ which were used by the families, campaigners, and local MPs:
‘The influence of Article 2 and its requirement of an “effective and proper official investigation” led to: better engagement to uphold the families’ rights; enabled the jury to express their opinion; and helped in establishing the circumstances in which the deaths had occurred’.
The right to life principles discussed in this piece are also fundamental to the Grenfell Tower Inquiry, which was established to examine the circumstances of the fire at Grenfell Tower in London on 14 June 2017, which led to the deaths of 72 people.[12] The extent of public participation has been a notable element of the Inquiry, with ‘core participants’ (who include survivors, bereaved families and affected local residents) being provided with relevant evidence prior to hearings, being given the opportunity to make opening or closing statements and to suggest lines of questioning that should be pursued and pose questions to witnesses (through their lawyers).[13]
A crucial question for the Inquiry to resolve is how wide it should go in assessing the causes of the fire. The Equality and Human Rights Commission (EHRC) rightly urged that, in investigating potential violations of the right to life, the inquiry should consider broader systemic issues, such as the adequacy of building regulations and the system of monitoring and supervising their compliance. In March 2019 the EHRC argued that there was an ‘ongoing breach of the positive obligation to ensure that the right to life is protected’. It argued that the evidence showed that the authorities knew, or should have known, there was a real and immediate risk to life from combustible cladding on Grenfell Tower. The Commission also concluded that in accordance with its right to life obligations, the authorities should provide adequate training for firefighters on combatting cladding fires and ensure that residents are provided with sufficient fire safety advice. The EHRC further submitted that the authorities had failed, and continued to fail, to take appropriate protective measures to cater for the needs of particularly vulnerable groups, such as children, pregnant women, older people, disabled people (notably those with mobility impairments, visual impairments and dementia), and people not fluent in English. It called on the Inquiry to issue urgent findings and recommendations, rather than wait for its final report – a call which was not heeded.
Conclusion
Murray Hunt, the former legal adviser to the Joint Committee on Human Rights, has emphasised that the right to life case law has impacted upon the ‘minutiae of how states conduct important functions like investigations…’. Many challenges still remain in responding appropriately to fatalities with swift, effective and independent investigations. By applying the principles inherent in the right to life to many different situations, we now have an established human rights framework in the UK on which we can draw for guidance, even in the most difficult situations where competing rights and obligations may clash.
The post draws on an earlier version which was produced in the context of the Knowing Our Rights project.
[1] Professor of Human Rights Law at Middlesex University and Director of the European Human Rights Advocacy Centre (EHRAC). As a former Legal Director of Liberty, he represented the applicants in the cases of Edwards and Wright, which are referred to in this article. He wishes to express his grateful thanks to his colleague Dr. Alice Donald for her perceptive comments on a draft of this piece.
[2] This article should be read in conjunction with the piece by Professor Merris Amos, in the Goldsmiths Law/Knowing Our Rights symposium, What has the ECHR ever done for the UK?, British Academy, 27 November 2018, which covers other aspects of the right to life.
[3] See further the discussion on the right to life in Alice Donald, Jane Gordon and Philip Leach, ‘The UK and the European Court of Human Rights’, Equality and Human Rights Commission, section 5.3.
[4] See further: Jim Murdoch and Ralph Roche, ‘The European Convention on Human Rights and Policing – a handbook for police officers and other law enforcement officials’.
[5] The obligations will apply to patients in state care, including voluntarily detained mental health patients. See: Rabone and another v Pennine Care NHS Foundation Trust.
[6] As extensively documented in: Brice Dickson, ‘The European Convention on Human Rights and the Conflict in Northern Ireland’, Oxford University Press, 2010, chapter 9.
[7] They have also been applied to the British army acting overseas, as shown by the case of Al-Skeini v UK which concerned the lack of an independent and effective investigation into the deaths of the applicants’ relatives (Iraqi nationals), during operations conducted by the UK armed forces in Iraq.
[8] R (Wright) v Secretary of State for the Home Department [2001] 1 Lloyd’s Rep Med 478.
[9] The House of Lords stipulated that the aim of an inquest - to establish ‘how’ a person died - should not be construed too narrowly, and that it should ascertain ‘by what means and in what circumstances’ the death occurred.
[10] The IPCC was replaced in January 2018 by the Independent Office for Police Conduct.
[11] These include having procedures aimed at flagging up potential cases of self-harm, and a reception screening process for prisoners, to ensure the better detection and recording of health problems, both physical and mental.
[12] At the time of writing, the Inquiry was in its second phase. It is expected to be completed in 2022.
[13] Citing Article 2 ECHR, the Inquiry has underlined the steps it has taken with the aim of involving concerned individuals, including starting the Inquiry by holding commemoration hearings for those who lost their lives. However, complaints have been made about the ability of people in practice to participate in the inquiry and question witnesses.
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