IRAC+C by Ozsoy, Elif Ceylan

Issue A

ecozsoy22 — 2024-12-04 19:26:46 UTC

There is a potential human rights violation in the scenario where Tom was murdered by Mary after a written threat that was unsigned and a threatening action by Mary with her driving a car fast at him putting his life in danger. As a result of such events taking place before the murder, Tom reported it to the police who did not take it seriously saying that the letter and acts of Mary were unrelated events. They also claimed that ‘Tom should stop being so sensitive’ and that the letter threatening him of murder ‘must be a prank’.

Issue B

ecozsoy22 — 2024-12-04 19:29:06 UTC

The first issue relates to Tom’s death by Mary, and a potential violation of Article 2.

[1] European Convention of Human Rights 1950(as amended by protocols 11, 14, 15; supplemented by protocols 1, 4, 6, 7, 12, 13 and 16) (ECHR) art 2.

Issue C

ecozsoy22 — 2024-12-04 19:33:10 UTC

The issues surrounding this scenario are that there are potentially many human rights violations, in terms of Tom's death it is Article 2; regarding the second issue of Michale's privacy it is Article 8 and finally Article 11 of the protesters.

Issue D

ecozsoy22 — 2024-12-04 19:34:36 UTC

Tom's death is a violation of Article 2 of the Convention.

Rule 1

ecozsoy22 — 2024-12-04 19:36:07 UTC

The rule here is found under Article 2 of the European Convention of Human Rights[1], which outlines the right to life. A state has a duty to take appropriate steps to prevent loss of life within its jurisdiction, this involves the protection of individuals who are at risk from the criminal acts of others. Osman v UK[2] outlined what became known as the Osman test. When an individual’s life is threatened by a non-state actor, the state has a duty to protect that individual, and will have violated Article 2 if the Osman test is not satisfied. The test involves whether the state authority knew, or ought to have known about a real and immediate threat to the victim’s life, and whether they took reasonable measures to prevent that risk. For a threat to be considered real, it must be verifiable, not based simply on subjective fears, and for a threat to be considered immediate, it must be both present and continuing. In Chief Constable of The Hertfordshire Police v Van Colle[3] it was outlined that the incapability and inefficiency of state authorities is no excuse when they ought to have been aware to a threat to an individual’s life, before taking appropriate action. However, this duty should not impose an impossible or disproportionate duty on the states.

[1] European Convention of Human Rights 1950(as amended by protocols 11, 14, 15; supplemented by protocols 1, 4, 6, 7, 12, 13 and 16) (ECHR) art 2.

[2] Osman v. the UK App no 23452/94 (ECHR, September 1998).

[3] Chief Constable of The Hertfordshire Police v Van Colle [2008] UKHL 50.

Rule 2

ecozsoy22 — 2024-12-04 19:41:31 UTC

Under Article 2 of the European Convention of Human Rights[1] which is incorporated into UK law by the Human Rights Act 1998[2], everyone has the right to life. As a result of this, the state has the positive obligation to take all steps necessary to protect the lives of its citizens, this includes having a police force protect a person’s life if they know there is a real or immediate risk[3]. Despite this, by looking at Osman v United Kingdom[4] it was concluded at the European Court of Human Rights that the police owed no duty of care when the right to life is violated by non-state agents and there is insufficient evidence to suggest an immediate threat due to the unpredictability of human conduct. This is upheld in English law by Hill v Chief Constable of West Yorkshire[5] which declares that the police owed no specific duty of care to a member of the public. After deaths caused by the state or where the state has not taken the adequate steps to protect life, Article 2 also means that an adequate investigation or inquest must take place. This is to help clarify if there was negligence on the part of the state and therefore decide whether human rights were violated and prevent it happening again.

1 European Convention of Human Rights 1950, Article 2

[2] Human Rights Act 1998, Article 2

[3] Professor Brice Dickson, Positive obligations and the European Court of Human Rights

[4] Osman V UK App no 23452/94 (ECHR, 28 October 1998)

[5] Hill v Chief Constable of West Yorkshire [1987] UKHL 12, [1989] AC 53

Rule 3

ecozsoy22 — 2024-12-04 19:45:51 UTC

Rule: The article that has been applied to this case is ‘Article 2 Right to Life’ of the ECHR 1950, in which it states, “everyone’s right to life shall be protected by law. No one shall be deprived of this life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law” [1] . In this case, this article has been breached.

[1]Osman v United Kingdom [1998] AC 312

European Convention on Human Rights 1950, art 2(1)

Application 1

ecozsoy22 — 2024-12-04 19:52:28 UTC

The actions that occurred during this scenario present Mary's actions as reckless, particularly her attempt to drive her car towards Tom and put his life in danger as she did murder him at a later time; therefore, this is a violation of Toms's right to life. Mary has no defences, which have been mentioned before as she purposely inflicted the pain and murder on Tom, knowing very well the outcome that this will cause; in the case of Armani Da Silva v. the UK(2016)[1], the death of Mr Charles De Menezes was caused by the lack of information that was not given to the officers at the time of the incident. However, the verdict was that no officers were prosecuted as the court established that no violation of Article 2 had been committed as the applicant failed to demonstrate there were institutional deficiencies in the criminal justice system or prosecutorial system that were capable of giving rise to a breach of Art 2. From this case, we can establish that Marina had the intention to murder Tom and take away his right to life for some time as she was sending him frightening letters and driving the car at such high speed that he feared for his own life.

[1] Armani da Silva v UK 5878/08 [2016] ECHR 314 European Court of Human Rights - Grand Chambe

Application 2

ecozsoy22 — 2024-12-04 20:10:39 UTC

Upon application to the case, the letter alone might not have satisfied the first limb of the test, but the reports of Mary’s other actions, especially the incident where she drove her car at Tom, indicated there was a real and immediate threat to his life. The authorities knew when Tom reported the threatening letter to the police. The dismissal of Tom’s concerns displayed a failure to take reasonable action, which might’ve prevented the loss of Tom’s life. Taking reasonable measures would not impose an impossible burden on the State, especially given the role of State in a democratic society.[1] The Police is a core public authority according to Aston Cantlow[2] and must act in accordance with the Convention following section 6 of the Human Rights Act 1998.[3] To conclude, there is a violation of Article 2, in that the state agents (police) as the core public authority failed to take reasonable action that might have protected Tom’s life and also failed to fulfil their duty to investigate suspicious deaths by non-state actors. Considering these events there also arises a duty for the state to investigate suspicious deaths. This investigation should be prompt,[4] by an independent body[5]and proceed with reasonable expedition.[6] The fact that the investigation is still ongoing for 10 years also a violation of Article 2.

[1] Osman v. the UK App no 23452/94 (ECHR, September 1998).

[2] Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37.

[3] Human Rights Act 1998, s 6

[4] Armani Da Silva v. UK (2016) para 237.

[5] Mustafa Tunç and Fecire Tunç v. Turkey (2005) para 222.

[6] Giuliani and Gaggio v. Italy (2009)para 305.

Conclusion A

ecozsoy22 — 2024-12-04 20:21:48 UTC

To conclude, there is a violation of Article 2, in that the state agents (police) as the core public authority failed to take reasonable measures that might have protected Tom’s life and also failed to fulfil their duty to investigate suspicious deaths by non-state actors.

Conclusion B

ecozsoy22 — 2024-12-04 20:24:27 UTC

There is a violation of Article 2 regarding Tom's death.Article 8 is not violated regarding Michael's privacy. There is a violation of Article 11 rights of the protesters.

+C 1

ecozsoy22 — 2024-12-04 20:30:29 UTC

I would like to change the Osman test that applies to deaths by non-state actors. The fact that the test only requires intervention of the authorities with appropriate measures does not provide strong protection to private sphere killings, specifically with regards to domestic violence.[1]

[1] Elif Ceylan Özsoy, ‘Critical feminist law-making: Imitative Spaces and Improvised Coalitions' (2023) Australian Feminist Law Journal, 48, 265-294.

+C 2

ecozsoy22 — 2024-12-04 20:31:23 UTC

I would like to keep the law as it is. It is fair and just.

+C 3

ecozsoy22 — 2024-12-04 20:37:07 UTC

The change is needed regarding section 6 of the HRA 1998. The section should include descriptions of core and hybrid public authorities clearly.

Colour coding: Greens present the best approach, Reds present poor approach to IRAC+C method.

ecozsoy22 — 2024-12-06 15:05:00 UTC