The European Convention on Human Rights (ECHR), was formed with the guidance from the Council of Europe in 1950 to protect the fundamental freedoms that are taken for granted and human rights. States who are members of the Council are party to the ECHR with joining members expected to follow suit. Cases from the United Kingdom could only be heard in Strasburg until the implementation of the Human Rights Act 1998 which is a statute to re-enforce the values laid out in the convention.
There are a number of possible article violations one would look to address, the first being a violation of article 2; the right to life. This article in essence provides that the Government and public authorities or state agents must protect the right to life. This may require, for example, that the police have to protect someone whose life is under immediate threat. It could also be used to argue that a patient should be able to get treatment that would save their life or in the case of Pretty v United Kingdom1 in which assisted suicide was the issue.
Generally, there will be a breach of Article 2 if someone is killed by a state official for example the police or prison officers. The only circumstances where there will not be a breach are set out in the second part of the article. However, where a death occurs in each of these three circumstances the responsible official will have to show that they did not use any more force than was absolutely necessary. So, if someone is killed when the police are trying to arrest them, there will be breach of Article 2 if it is shown that the police used more than the minimum amount of force necessary to detain the person.
There have been illustrative cases such as R (Silva) v DPP2 which involved the police and McCann v United Kingdom3 these both highlight the use of unnecessary force in which a violation of Art.2 was held. With article 2 there is also a positive duty on the authorities to have an adequate screening process highlighted by both Edwards4 and Osman5. Osman simply re-enforces the fact the ‘state has a positive obligation to protect the right to life on the proviso that a state agent had done all that could be reasonably expected of them.’6 This is now come to be known as the Osman Duty.
Mr. Bloggs has served the ‘minimum term’ of 15 years which was laid out in the judgement. Now due for parole, evidence has deemed him to no longer be dangerous. It would therefore be safe to assume that the Parole Board has taken all the necessary steps to ensure that he would no longer be a danger or menace to society. After recognizing that the publics right to life would not be affected, there is a then also a ‘positive duty’ on the state to protect Mr. Bloggs’ right to life. If he were to be deported the state would be effectively sentencing him to death or a prolonged spell of inhuman treatment.
Here is where the Osman Duty is applied as set out in paragraphs 115 and 116 of the judgement. A specific duty on the authorities is determined by paragraph 115 and states that ‘to take preventative operational measures to protect an individual whose life is at risk from the criminal acts of another individual’ and the duty arises when ‘authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an individual.’ Taking this into consideration it would mindless and irresponsible to even contemplate deporting him and could also lead to a violation of not only art.2 but also art. 3.
The ECHR has made it clear that inhuman or degrading treatment or punishment has to be very serious to be in breach of Article 3. This article is absolute there is no derogation permitted under article 15 even in times of war.
People have successfully used this article to argue that they should not be deported to a country where they are likely to be tortured or where there will be inadequate protection against persecution (Chahal v UK7, Dashamir Koci v Secretary of State for the Home Department8). Chahal was believed to be a terror suspect and even though it was felt his presence was against the public interest it would have violated art 3 in deporting him to India where there was a real risk of him being subjected to inhuman treatment. It could also be used to argue that someone should not be deported to a country where they are likely to be given an unfair prison sentence. The courts have also held that the seclusion of compulsorily detained mental patients might breach Article 3 (R (Munjaz) v Mersey Care NHS Trust)9.
It clearly states in the Immigration Act 197110 that a state or state authority such as a judge reserves the right to deport as part of a punishment after conviction of a serious offence, in this case murder, and is of unquestionable seriousness. When the judgement was passed in Mr. Bloggs’ case this right was invoked and would therefore see him return to his native Columbia. This however would appear to violate the fundamental principles of article 3 in that a signatory state cannot deport a person if there is substantial evidence to suggest that they are at risk in being returned to the country. The fact that this has been ascertained then the state would be compelled to carry out their obligation and allow him to stay. This situation would be linked also, to article 8; The Right to Respect for Private and Family Life.
Article 8 offers general protection for a person’s private and family life, home and correspondence from arbitrary interference by the State. However, the right to respect for these aspects of privacy under Article 8 is qualified. Meaning that interferences by the State can be permissible, but such interferences must be justified and satisfy certain conditions.
The case of R(Razgar) v SSHD11 highlighted some interesting discussions with article 8 the court found:
‘that the risk of damage to the Applicant’s health from return to his country was based on largely hypothetical factors and that it was not substantiated that he would suffer inhuman and degrading treatment… the court considers that such interference may be regarded as complying with the requirements of the second paragraph of Article 8, namely as a measure ‘in accordance with the law’, pursuing the aims of the protection of the economic wellbeing of the country and the prevention of disorder and crime, as well as being ‘necessary in a democratic society’ for those aims.”12 Para 48
Using this as a platform to base Mr. Bloggs’ claim on there is a distinct difference in his ‘family life.’ Razgar was given a temporary visa until 1992 in which he would have to return to his native country yet he stayed and married a UK citizen in 1993 and was granted indefinite leave to remain as a foreign spouse. After a short trip out of the country he was refused entry on the grounds ‘that his indefinite leave to remain had been obtained by deceptively entering into a marriage of convenience.’ Mr Bloggs’ had been in a stable relationship for his entire sentence and prior to that, with his long term girlfriend, which still constitutes a ‘family life’ and by interfering with this under art 8(2) would violate his right to life as it would be exceptionally difficult to justify this due to the evidence that shows he is no longer dangerous therefore there is no interest in public safety, national security or economic well-being.
With regards to the publishing of his book about his experiences it mirrors the controversy that shrouded author and former politician Jeffrey Archer’s decision to publish A Prison Diary13 which caused a stir with the prison service because it breaks prison rules. Archer’s decision to name fellow inmates during his time at the notorious Belmarsh Prison in south London directly contravenes prison directives but following the inquiry, the book was eligible to be published. Handyside14 is a landmark case in the area of article 10 freedom of expression. This however, unlike Lord Archer’s publication was as a result of its hearing in Strasburg censured. It was banned from Italy, France and the U.K.
Article 10 has the same two-part structure as article 8 and there can be state interference if they can justify it. In Handyside it was held that it would be damaging to the moral fabric of society due to the intended audience being children and adolescents and the sexual and drug content would have ‘pernicious effects on those who read it’ 15 Mr. Bloggs does have a right to freedom of expression however the pinnacle of this article resides in section 2.
As long as a state could provide justification for censorship or banning it then there is no violation. What may be considered is that would the publishing of this book violate the rights of prisoners mentioned for example their right to a private life? Would it be against public interest if it was published? A view that could be taken is that it would an insightful look into prison life or that it doesn’t set a good example to other generations. The prison service would be entitled, if, the book violated there regulations to delay his parole or revoke other privileges. This is no absolute right therefore if the content was deemed in appropriate there would be no violation whatsoever.