Is English self-defence law incompatible with Article 2 of the ECHR?

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hello, what cases are on the side of the appellant? I'm in a criminal law rut and can't get out!

does it matter that the cases I have found relate to state agents (ie police) and not civil persons? all i can find is cases regarding police

Reply 22

wkd

You won't find cases on citizens because; the convention creates an obligation for the state, not for private individuals

Reply 23

Norton1

Original post by wkd

You won't find cases on citizens because; the convention creates an obligation for the state, not for private individuals

But it creates an obligation on the state to safeguard Convention rights even if it is being done by private individuals.

So in Opuz v. Turkey :

159. As regards the question whether the State could be held responsible, under Article 3, for the ill-treatment inflicted on persons by non-state actors, the Court recalls that the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals (see, mutatis mutandis, H.L.R. v. France, 29 April 1997, § 40, Reports 1997‑III). Children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity (see A. v. the United Kingdom, 23 September 1998, § 22, Reports 1998‑VI).

So by analogy the state could be found to have violated the right to life under Article 2 in two situations (there may be more) where a private individual acted in putative 'self defence'

1. The law on self defence is drafted very forgivingly so, for example, if someone taps you gently you are allowed to shoot them

2. The law is drafted narrowly requiring, say, that the violence used in self defence is commensurate with the offensive violence used. However, when an individual completely exceeds the requirement for proportionality in his response the authorities completely ignore the law.

Therefore, theoretically, there could well be a case brought before under the Convention where a private individual's self defensive actions are said to contravene the Convention.

Reply 24

theguv92

Original post by wkd

You won't find cases on citizens because; the convention creates an obligation for the state, not for private individuals

Where there is a threat to life between private parties and the state is aware then it will. See Osman.

With no offence meant, I can pick holes in this argument with incredible ease. The wording of the article is basically designed to allow self-defence killing, and moreover the self-defence law is designed to protect life which aids the obligation under Article 2 to legislate appropriately.

The fact that 'no more than necessary' is used means if someone tries to kill you, you can kill them. And if there is any doubt, there will be no violation.

Not allowing killings in self defence would breach Article 2 on the basis that this is not protecting life because there is no legislation which protects the victims rights and basically permits killing while removing someones right to defend themselves.

Reply 25

theguv92

If there is no authority, then try distinguish the case somehow. The ECHR is a living instrument and as such can change over time. Find an argument which suggests that circumstances have changed. Find a European Consensus. The facts you have given us are too broad anyway, surely a moot has to have material facts too?

Reply 26

wkd

What you've quoted isn't an argument in anyway shape or form... I was just explaining why currently there are no cases on private citizens!!

Reply 27

wkd

Has anyone used Gul v Turkey as authority?

Reply 28

kelly868

Hey
to lead respondents struggling try looking at McCann and Kelly v UK

they really help

Reply 29

louise0812

has anyone found any cases for the lead appellant? please help.

Reply 30

Influenced

anyone got a submission for the lead appellant? just want to make sure and clarify..

Reply 31

niall c

Original post by Influenced

anyone got a submission for the lead appellant? just want to make sure and clarify..

For the respondent: cliffg's analysis is correct - Goodbloke was far too negative about the prospect of this argument. I suggest re-reading Leverick's article on this and her reply to Smith (2002 Crim LR 347 and 963). I find both highly persuasive: whilst McCann etc seem to suggest English law is entirely compatible, the language of the judgment makes clear the Court is fudging the relevant English standard (as cliffg said).

This means you can construct a technically impressive argument on two fronts - first, you are using cases the appellant is likely to use and showing why the wording actually supports your contention. Second, as noted by someone else, you then have to demonstrate why this could breach A2 despite it being a private citizen who was acting in self-defence.
EDIT: see also http://www.publications.parliament.uk/pa/jt200708/jtselect/jtrights/81/8105.htm#a14 at 2.26ff -- the JCHR agrees there is a breach.

Ah and for the appellant: the cases are all the ones cited (Gul etc): in two cases the Court has looked at English self-defence law and ruled it entirely compatible. You then need to argue the Court is happy that in reality, the theoretical disparity over unreasonable mistakes leads to the same results. Margin of appreciation etc. too. And finally, you could have a stab at making Smith's (2002 Crim LR 956) argument that A2 doesn't cover unintentional killing, though be prepared for counterarguments using Leverick.