Three claimants appealed against refusal of declarations that the response of the police to requests for Criminal Records Bureau enhanced checks, were a disproportionate interference in their right to private and family life, and in particular that the disclosure of old convictions infringed their human rights.
Held: The appeals succeeded. The statutory system which required undicriminaig disclosure of all convictions and all cautions for recordable offences was disproportionate both to (i) the general aim of protecting employers and, in particular, children and vulnerable adults in their care, and (ii) the particular aim of enabling employers to make an assessment as to whether the individual was suitable for a particular kind of work.

Lord Dyson MR, Richards, Davis LJJ
[2013] EWCA Civ 25, [2013] WLR(D) 33, [2013] 1 WLR 2515, [2013] HRLR 14, [2013] 1 Cr App R 27, [2013] 2 All ER 813
Bailii, Judiciary, WLRD
Police Act 1997, Rehabilitation of Offenders Act 1974, Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, European Convention on Human Rights 8, Human Rights Act 1998 4
England and Wales
Citing:
Cited – Sidabras and Dziautas v Lithuania ECHR 27-Jul-2004
Former KGB officers had been banned from employment in a range of public and private sector jobs, including as lawyers, notaries, bank employees and in the teaching profession. They complained of infringement of Article 8 taken alone and also in . .
Cited – Chief Constable of Humberside Police and Others v The Information Commissioner and Another CA 19-Oct-2009
Complaints had been made that the police were not deleting from their criminal records very old records of minor convictions. The police appealed against a finding that they should do so under Data Protection Principles. The Police had used a policy . .
Cited – JF and Another, Regina (On the Application of) v Secretary of State for the Home Department CA 23-Jul-2009
The claimants complained of the system under which they had been placed on the sex offenders’ register indefinitely with no ability to have the registration reviewed. They said that this interfered with their right to respect for their private and . .
Cited – Animal Defenders International, Regina (on the Application of) v Secretary of State for Culture, Media and Sport HL 12-Mar-2008
The applicant, a non-profit company who campaigned against animal cruelty, sought a declaration of incompatibility for section 321(2) of the 2003 Act, which prevented adverts with political purposes, as an unjustified restraint on the right of . .
Cited – Meakin v British Broadcasting Corporation and Others ChD 27-Jul-2010
The claimant alleged that the proposal for a game show submitted by him had been used by the various defendants. He alleged breaches of copyright and of confidence. Application was now made to strike out the claim. . .

Cited by:
Appeal from – T and Another, Regina (on The Application of) v Secretary of State for The Home Department and Another SC 18-Jun-2014
T and JB, asserted that the reference in certificates issued by the state to cautions given to them violated their right to respect for their private life under article 8 of the Convention. T further claims that the obligation cast upon him to . .
Cited – Gallagher for Judicial Review (NI) SC 30-Jan-2019
Each appellant complained of the disclosure by the respondent of very old and minor offences to potential employers, destroying prospects of finding work. Two statutory schemes were challenged, raising two separate questions, namely whether any . .

Lists of cited by and citing cases may be incomplete.

Police, Human Rights

Updated: 09 January 2022; Ref: scu.470622

[2015] UKIPTrib 14 – 79-CH
Bailii
England and Wales

Police, Human Rights

Updated: 04 January 2022; Ref: scu.553306

Burton J P, Geoffrey Rivlin QC HHJ, Sir Richard McLaughlin
[2015] Lloyd’s Rep FC 659, [2015] UKIPTrib 15 – 84 – 88-CH
Bailii
England and Wales

Police, Human Rights

Updated: 04 January 2022; Ref: scu.553305

Article 3
Effective investigation
Failure to take action in response to complaints concerning the alleged ill-treatment of a journalist: violation
Facts – In 2007 the applicant, a journalist, published two articles critical of the situation in the Nakhchivan Autonomous Republic (‘the NAR’). The subsequent events are in dispute. According to the applicant, on 22 September 2007 the head of the district department of the Ministry of National Security (‘the MNS’) accused him of having published defamatory articles, following which he was arrested and taken to MNS premises where he was kicked and punched by five MNS agents. After his release at 2 a.m. the following day he immediately informed a newspaper of his arrest. Since it was too early in the day to see a doctor, he asked relatives to take photographs of his injuries. Later that morning he was rearrested by the police who wanted to know why he had informed the press of his arrest. According to the Government, the applicant was arrested for having used loud and abusive language in public.
Later that day, a District Court sentenced the applicant to fifteen days’ administrative detention for obstructing the police. He was then examined by a doctor but was not provided with a medical report. According to the applicant, he was deprived of food and water and received no bedding during his detention. He was forced to spend nights outside on the concrete walkway, was continuously handcuffed and suffered badly from mosquito bites. On 27 September 2007 he was released and treated in hospital, but was not given an official medical certificate. The applicant produced an unsigned medical record dated 1 October 2007 which stated that he had a broken rib but did not provide any further information.
On 3 October 2007 the applicant lodged a criminal complaint with the District Prosecutor’s Office relying on Articles 3, 5 and 10 of the European Convention. He subsequently lodged further complaints with the Prosecutor’s General Office, the Ministry of Internal Affairs, the Ombudsman, the District Court, the Supreme Court of NAR, the Supreme Court of Azerbaijan and the Judicial Legal Council. Although he was informed that his complaints had been forwarded to the competent investigating authority, no action was ever taken.
Law – Article 3 (procedural aspect): The Court was called upon to determine whether the national authorities had failed to conduct an effective official investigation into an arguable claim of ill-treatment by the police in breach of Article 3. It noted at the outset that the complaints the applicant had lodged with the domestic bodies had not led to criminal inquiries and no action had been taken by the domestic courts even though sufficient information regarding the identity of the alleged perpetrators and the date, place and nature of the alleged ill-treatment had been provided. The applicant had thus had an arguable claim that had required the authorities to conduct an effective investigation into his allegations.
Notwithstanding the information by the Prosecutor General’s Office and the Ministry of Internal Affairs that the applicant’s complaints had been forwarded to the investigating authorities for examination, no criminal inquiry had ever been initiated. The prosecuting authorities had not ordered the applicant’s forensic examination, or heard the applicant, the alleged perpetrators of the ill-treatment or any other possible witnesses. Finally, the Government had provided no explanation for the failure to conduct an investigation. Accordingly, there had been no effective investigation into the applicant’s claim of ill-treatment.
Conclusion: violation (unanimously).
Article 3 (substantive aspect): As regards the applicant’s alleged ill-treatment by agents of the MNS, the Court had to assess whether his allegations were supported by appropriate evidence. The applicant had presented a detailed description of his ill-treatment as well as photographs taken by his family allegedly directly after his release from detention and an unsigned medical record of 1 October 2007. However, that evidence was insufficient for the Court to determine ‘beyond reasonable doubt’ that the applicant had been subjected to the alleged treatment by agents of the State.
Conclusion: no violation (six votes to one).
The Court also held by six votes to one that there had been no violation of Articles 5 or 10 of the Convention.
Article 41: EUR 10,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

59075/09 – Chamber Judgment, [2015] ECHR 590, 59075/09 – Legal Summary, [2015] ECHR 675
Bailii, Bailii Summary
European Convention on Human Rights

Human Rights, Police

Updated: 02 January 2022; Ref: scu.549946

The defendants said that the stop and search powers granted under the 2000 Act were too wide, and infringed their human rights. Each had been stopped when innocently attending demonstrations in London, and had been effectively detained for about twenty minutes or more before being allowed to continue. An authorisation had been granted by an assistant commissioner for searches to be carried out throughout the capital.
Held: The appeals failed. The authorisation had been considered and proportionate to the threat to the capital.
As to whether being stopped amounted to a deprivation of liberty: ‘I would accept that when a person is stopped and searched under sections 44-45 the procedure has the features on which the appellants rely. On the other hand, the procedure will ordinarily be relatively brief. The person stopped will not be arrested, handcuffed, confined or removed to any different place. I do not think, in the absence of special circumstances, such a person should be regarded as being detained in the sense of confined or kept in custody, but more properly of being detained in the sense of kept from proceeding or kept waiting. There is no deprivation of liberty.’
Lord Bingham said: ‘It is an old and cherished tradition of our country that everyone should be free to go about their business in the streets of the land, confident that they will not be stopped and searched by the police unless reasonably suspected of having committed a criminal offence. So jealously has this tradition been guarded that it has almost become a constitutional principle. But it is not an absolute rule. There are, and have for some years been, statutory exceptions to it. These appeals concern an exception now found in sections 44-47 of the Terrorism Act 2000 (‘the 2000 Act’). The appellants challenge the use made of these sections and, in the last resort, the sections themselves. Since any departure from the ordinary rule calls for careful scrutiny, their challenge raises issues of general importance.’
. . and: ‘The lawfulness requirement in the Convention addresses supremely important features of the rule of law. The exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly-accessible rules of law. The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred. This is what, in this context, is meant by arbitrariness, which is the antithesis of legality. This is the test which any interference with or derogation from a Convention right must meet if a violation is to be avoided.’
Lord Bingham went on to say: ‘The claimants contended that the exercise of the section 45 stop and search power necessarily involves the interference with the exercise of the article 8(1) right, and therefore had to be justified under article 8(2). The defendants did not accept that there would necessarily be such interference, but accepted that there might, as where (for instance) an officer in the course of a search perused an address book, or diary, or correspondence. I have no doubt but that the defendants’ concession is rightly made. I am, however, doubtful whether an ordinary superficial search of the person can be said to show a lack of respect for private life. It is true that ‘private life’ has been generously construed to embrace wide rights to personal autonomy. But it is clear Convention jurisprudence that intrusions must reach a certain level of seriousness to engage the operation of the Convention, which is, after all, concerned with human rights and fundamental freedoms, and I incline to the view that an ordinary superficial search of the person and an opening of bags, of the kind to which passengers uncomplainingly submit at airports, for example, can scarcely be said to reach that level.’

Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood
[2006] UKHL 12, Times 09-Mar-2006, [2006] 2 AC 307, [2006] UKHRR 740, [2006] 2 WLR 537, [2006] 2 Cr App R 36, [2006] Crim LR 752, [2006] HRLR 18, 21 BHRC 202, [2006] Po LR 26, [2006] 4 All ER 1041
Bailii, HL
Terrorism Act 2000 44, European Convention on Human Rights 5 8 10
England and Wales
Citing:
At first instance – Gillan and Another, Regina (on the Application of) v Commissioner of the Police for the Metropolis and Another Admn 31-Oct-2003
The applicants challenged by way of judicial review the way they had been stopped and searched under the Act. They attended a demonstration. The search revealed nothing suspicious. General authorisations for such searches had been issued under the . .
Appeal from – Gillan and Quinton, Regina (on the Application of) v Commissioner of Police for the Metropolis and Another CA 29-Jul-2004
The appellants had challenged the lawfulness of being stopped and searched by police. The officers relied on an authorisation made under the 2000 Act. They had been on their way to attending an arms fair, intending to demonstrate.
Held: The . .
Cited – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
Cited – The Republic of Ireland v The United Kingdom ECHR 18-Jan-1978
The UK lodged a derogation with the Court as regards its human rights obligations in Northern Ireland because of the need to control terroist activity. The Government of Ireland intervened. From August 1971 until December 1975 the UK authorities . .
Cited – HL v United Kingdom ECHR 2004
Patient’s lack of Safeguards was Infringement
The claimant had been detained at a mental hospital as in ‘informal patient’. He was an autistic adult. He had been recommended for release by the Mental Health Review Tribunal, and it was decided that he should be released. He was detained further . .
Cited – Guzzardi v Italy ECHR 6-Nov-1980
The applicant, a suspected Mafioso, had been detained in custody pending his trial. At the end of the maximum period of detention pending trial, he had been taken to an island where, he complained, he was unable to work, keep his family permanently . .
Cited – Malone v The United Kingdom ECHR 2-Aug-1984
COURT (PLENARY) The complainant asserted that his telephone conversation had been tapped on the authority of a warrant signed by the Secretary of State, but that there was no system to supervise such warrants, and that it was not therefore in . .
Cited – Huvig v France ECHR 24-Apr-1990
The court recognised the value, in the context of telephone tapping, of regulatory control, including supervision by the courts if need be, even though it was found to be lacking in this case in the absence of legislation or case law. . .
Cited – Bronda v Italy ECHR 9-Jun-1998
In some fields of law legal rules may not be laid down with total precision. Undue delay in child contact proceedings may have irreversible effects upon the child. . .
Cited – Regina v Immigration Officer at Prague Airport and another, ex parte European Roma Rights Centre and others HL 9-Dec-2004
Extension oh Human Rights Beyond Borders
The appellants complained that the system set up by the respondent where Home Office officers were placed in Prague airport to pre-vet applicants for asylum from Romania were dsicriminatory in that substantially more gypsies were refused entry than . .
Cited – Hilda Hafsteinsdottir v Iceland ECHR 8-Jun-2004
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-1 ; Non-pecuniary damage – finding of violation sufficient ; Costs and expenses partial award – Convention proceedings . .
Cited – European Roma Rights Centre and others v Immigration Officer at Prague Airport and Another CA 20-May-2003
A scheme had been introduced to arrange pre-entry clearance for visitors to the United Kingdom by posting of immigration officers in the Czech Republic. The claimants argued that the system was discriminatory, because Roma visitors were now . .

Cited by:
Cited – S and others v Secretary of State for the Home Department CA 4-Aug-2006
The asylum applicants had complained that the appellant’s discretionary leave policy for the grant of temporary admissions was unlawful. As failed asylum seekers, they had been held on temporary admission rather than being granted discretionary . .
Cited – Wood v Commissioner of Police for the Metropolis Admn 22-May-2008
The claimant challenged the right of police officers to take his photograph as he attended an annual general meeting of Reed Elsevier Plc. He was a campaigner against the arms trade, but had always acted lawfully. The company noted the purchase of . .
Cited – Cadogan and others v 26 Cadogan Square Ltd, Howard de Walden Estates Limited v Aggio and others HL 25-Jun-2008
In each case all or part of a building was let by a head-lease and then as self-contained units under sub-leases. The head lessees had served notices under the 1993 Act requiring new leases. The freeholder denied that they were qualifying tenants, . .
Cited – Animal Defenders International, Regina (on the Application of) v Secretary of State for Culture, Media and Sport HL 12-Mar-2008
The applicant, a non-profit company who campaigned against animal cruelty, sought a declaration of incompatibility for section 321(2) of the 2003 Act, which prevented adverts with political purposes, as an unjustified restraint on the right of . .
Cited – Austin and Another v Commissioner of Police of the Metropolis HL 28-Jan-2009
Movement retsriction was not Liberty Deprivation
The claimants had been present during a demonstration policed by the respondent. They appealed against dismissal of their claims for false imprisonment having been prevented from leaving Oxford Circus for over seven hours. The claimants appealed . .
Cited – Wood v Commissioner of Police for the Metropolis CA 21-May-2009
The appellant had been ostentatiously photographed by the police as he left a company general meeting. He was a peaceful and lawful objector to the Arms Trade. He appealed against refusal of an order for the records to be destroyed. The police had . .
At House of Lords – Gillan and Quinton v The United Kingdom ECHR 10-Jun-2008
The court set the questions to be answered later in response to the complaint as to the use of stop and search powers by the British police. . .
At House of Lords – Gillan and Quinton v The United Kingdom ECHR 12-May-2009
(Admissibility and Summary) . .
At House of Lords – Gillan and Quinton v The United Kingdom ECHR 12-Jan-2010
The claimants had been stopped by the police using powers in the 2000 Act. They were going to a demonstration outside an arms convention. There was no reason given for any suspicion that the searches were needed.
Held: The powers given to the . .
Cited – Howarth v Commissioner of Police of The Metropolis QBD 3-Nov-2011
howarth_cmpQBD2011
The claimant sought judicial review of a decision to search him whilst travelling to a public protest in London. A previous demonstration involving this group had resulted in criminal damage, but neither the claimant nor his companions were found to . .
Cited – LD and Others, Regina (on The Application of) v Secretary of State for Justice Admn 17-Jul-2014
Three claimant female prisoners asserted that strip searches conducted against them under Regulation 41 had been unlawful. The defendant admitted the unlawfulness, but the claimants now sought declarations accordingly, saying that the Guidance . .
Cited – Catt and T, Regina (on The Applications of) v Commissioner of Police of The Metropolis SC 4-Mar-2015
Police Data Retention Justifiable
The appellants challenged the collection of data by the police, alleging that its retention interfered with their Article 8 rights. C complained of the retention of records of his lawful activities attending political demonstrations, and T . .
Cited – T and Another, Regina (on The Application of) v Secretary of State for The Home Department and Another SC 18-Jun-2014
T and JB, asserted that the reference in certificates issued by the state to cautions given to them violated their right to respect for their private life under article 8 of the Convention. T further claims that the obligation cast upon him to . .
Cited – Roberts, Regina (on the application of) v Commissioner of Police of the Metropolis and another SC 17-Dec-2015
The Court considered the validity of suspicionless stop and search activities under s 60 of the 1994 Act, by police officers.
Held: The claimant’s appeal failed. The safeguards attending the use of the s 60 power, and in particular the . .
Cited – Gallagher for Judicial Review (NI) SC 30-Jan-2019
Disclosure of older minor offences to employers 48 . .

Lists of cited by and citing cases may be incomplete.

Police, Human Rights

Leading Case

Updated: 02 January 2022; Ref: scu.238920

ECHR The applicant complained about the retention and disclosure in the context of a criminal record check of data concerning a caution she received from the police. he applicant, who lived in Northern Ireland, was a baby’s paternal grandmother and was distressed at the prospect of the mother’s removal of him to her native Australia. In order, apparently, to induce the mother and her son to reconcile their differences, the grandmother disappeared with the baby for more than a day. She accepted a caution for the offence of child abduction on the basis that, as the Northern Ireland police assured her in accordance with what was then their practice, the caution would be deleted from her record after five years, namely in 2005. At around that time, however, the Northern Ireland police changed their practice so as to retain adult cautions on file indefinitely and, in that year, they disclosed it to a potential employer of MM, who, in consequence, did not offer her employment.Held: The Strasbourg court criticised the ‘generous approach’ of the law of the United Kingdom to the exercise of police power to retain personal data even before disclosure
The ECHR explained its conclusion that the Northern Ireland police had violated the grandmother’s rights under article 8: ‘In the present case, the court highlights the absence of a clear legislative framework for the collection and storage of data, and the lack of clarity as to the scope, extent and restrictions of the common law powers of the police to retain and disclose caution data. It further refers to the absence of any mechanism for independent review of a decision to retain or disclose data, either under common law police powers or pursuant to Part V of the 1997 Act. Finally, the Court notes the limited filtering arrangements in respect of disclosures made under the provisions of the 1997 Act: as regards mandatory disclosure under section 113A, no distinction is made on the basis of the nature of the offence, the disposal in the case, the time which has elapsed since the offence took place or the relevance of the data to the employment sought.
The cumulative effect of these shortcomings is that the court is not satisfied that there were, and are, sufficient safeguards in the system for retention and disclosure of criminal record data to ensure that data relating to the applicant’s private life have not been, and will not be, disclosed in violation of her right to respect for her private life. The retention and disclosure of the applicant’s caution data accordingly cannot be regarded as being in accordance with the law. There has therefore been a violation of article 8 of the Convention in the present case. This conclusion obviates the need for the court to determine whether the interference was ‘necessary in a democratic society’ for one of the aims enumerated therein.’

Lech Garlicki, P
24029/07 – HEJUD, [2012] ECHR 1906
Bailii
European Convention on Human Rights 8, Police Act 1997
Human Rights
Citing:
See Also – MM v The United Kingdom ECHR 6-Oct-2010
. .

Cited by:
Cited – Catt and T, Regina (on The Applications of) v Commissioner of Police of The Metropolis SC 4-Mar-2015
Police Data Retention Justifiable
The appellants challenged the collection of data by the police, alleging that its retention interfered with their Article 8 rights. C complained of the retention of records of his lawful activities attending political demonstrations, and T . .
Cited – T and Another, Regina (on The Application of) v Secretary of State for The Home Department and Another SC 18-Jun-2014
T and JB, asserted that the reference in certificates issued by the state to cautions given to them violated their right to respect for their private life under article 8 of the Convention. T further claims that the obligation cast upon him to . .
Cited – Beghal v Director of Public Prosecutions SC 22-Jul-2015
Questions on Entry must be answered
B was questioned at an airport under Schedule 7 to the 2000 Act, and required to answer questions asked by appropriate officers for the purpose set out. She refused to answer and was convicted of that refusal , contrary to paragraph 18 of that . .
Cited – AB v Her Majesty’s Advocate SC 5-Apr-2017
This appeal is concerned with a challenge to the legality of legislation of the Scottish Parliament which deprives a person, A, who is accused of sexual activity with an under-aged person, B, of the defence that he or she reasonably believed that B . .
Cited – Gallagher for Judicial Review (NI) SC 30-Jan-2019
Disclosure of older minor offences to employers 48 . .
Cited – Gallagher for Judicial Review (NI) SC 30-Jan-2019
Disclosure of older minor offences to employers 48 . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Police

Updated: 02 January 2022; Ref: scu.465773

The Court, having regard to the scope of the notion of ‘private life’ as interpreted in its case-law . . finds that the information about the applicants that was stored on the Secret Police register and was released to them clearly constituted data pertaining to their ‘private life’. Indeed, this embraces even those parts of the information that were public since the information had been systematically collected and stored in files held by the authorities. Accordingly, Article 8-1 of the Convention is applicable to the impugned storage of the information in question.

J-P Costa P
62332/00, [2006] ECHR 597, (2007) 44 EHRR 2
Worldlii, Bailii
European Convention on Human Rights 8-1
Human Rights
Citing:
Cited – Amann v Switzerland ECHR 16-Feb-2000
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8 with regard to interception of telephone call; Violation of Art. 8 with regard to creation and storing of information card; Preliminary objection . .
Cited – Rotaru v Romania ECHR 4-May-2000
Grand Chamber – The applicant, a lawyer, complained of a violation of his right to respect for his private life on account of the use against him by the Romanian Intelligence Service of a file which contained information about his conviction for . .

Cited by:
Cited – Catt and T, Regina (on The Applications of) v Commissioner of Police of The Metropolis SC 4-Mar-2015
Police Data Retention Justifiable
The appellants challenged the collection of data by the police, alleging that its retention interfered with their Article 8 rights. C complained of the retention of records of his lawful activities attending political demonstrations, and T . .
Cited – Gallagher for Judicial Review (NI) SC 30-Jan-2019
Disclosure of older minor offences to employers 48 . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Police

Updated: 02 January 2022; Ref: scu.246412

The claimants alleged that they had been victims of rapes after the defendant police force had negligently failed to properly investigate a series of similar crimes. They said that the failures had infringed their article 3 rights. The Commissioner now appealed against a finding that the failures amounted to
Held: The appeal failed. HRA imposes only a general duty to investigate ill-treatment amounting to a violation of article 3 of ECHR. The judge’s overall treatment of the case was in line with the scope and nature of the Article 3 duty.
Laws LJ said that the inquiry into compliance with the article 3 duty is ‘first and foremost concerned, not with the effect on the claimant, but with the overall nature of the investigative steps to be taken by the State’.
He pointed out that the essence of the argument on behalf of the appellants was that the common law rule (that police owe ‘no general duty of care. . . to identify or apprehend an unknown criminal, nor. . . a duty of care to individual members of the public who might suffer injury through the criminal’s activities . . ‘ – Hill v Chief Constable of West Yorkshire Police [1989] AC 53) should be moderated so as to accommodate the ECHR.

Lord Dyson MR, Laws, Kitchin LJJ
[2015] EWCA Civ 646, [2015] WLR(D) 282, [2015] 3 WLR 966, [2016] 1 Cr App R 2, [2016] QB 161
Bailii, WLRD
European Convention on Human Rights 3
England and Wales
Citing:
Appeal from – DSD and Another v The Commissioner of Police for The Metropolis QBD 23-Jul-2014
The court had found the defendant liable for a breach of the claimants’ human rights in that its negligent investigations had led to further rapes and sexual assaults by an offender. The court now considered what damages might be payable. . .
See Also – DSD and Another v The Commissioner of Police for The Metropolis QBD 28-Feb-2014
The claimants sought damages alleging negligent failure by the police to investigate and find a serial rapist.
Held: The claim succeeded. The claimants were entitled to damages from the defendant, the Commissioner of the Police of the . .

Cited by:
Appeal from – Commissioner of Police of The Metropolis v DSD and Another SC 21-Feb-2018
Two claimants had each been sexually assaulted by a later notorious, multiple rapist. Each had made complaints to police about their assaults but said that no effective steps had been taken to investigate the serious complaints.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Police, Human Rights

Updated: 01 January 2022; Ref: scu.549747

Grand Chamber – The applicants complained that their restriction within a police cordon (a measure known as ‘kettling’) for up to seven hours during the course of a demonstration in central London amounted to a deprivation of their liberty in breach of Article 5-1 of the Convention.
Held: Public order containment for several hours did not to infringe article 5. In reaching its conclusions it could take into account the type and manner of implementation of the measure in question and the fact that the implementation of restrictions on freedom of movement or liberty were in the interests of the common good. It noted that it did not consider that: ‘Commonly occurring restrictions on movement, so long as they are rendered unavoidable as a result of circumstances beyond the control of the authorities and are necessary to avert a real risk of serious injury or damage, and are kept to a minimum required for that purpose can properly be described as ‘deprivations of liberty’.’
‘ . . article 5(1) is not concerned with mere restrictions on liberty of movement, which are governed by article 2 of Protocol No 4. In order to determine whether someone has been ‘deprived of his liberty’ within the meaning of article 5(1), the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation of and restriction upon liberty is one of degree or intensity, and not of nature or substance.’

Francoise Tulkens, P
(2012) 55 EHRR 14, [2012] Crim LR 544, 32 BHRC 618, 39692/09, [2012] ECHR 459
Bailii
European Convention on Human Rights 5-1
Human Rights
Cited by:
Cited – Wright v Commissioner of Police for The Metropolis QBD 11-Sep-2013
The claimant sought damages for false imprisonment and infringement of his human rights in the manner of the defendant’s management of a demonstration in which he was involved. The issue was whether ilce action was justified on the basis that the . .
Cited – Wright v Commissioner of Police for The Metropolis QBD 11-Sep-2013
The claimant sought damages for false imprisonment and infringement of his human rights in the manner of the defendant’s management of a demonstration in which he was involved. The issue was whether ilce action was justified on the basis that the . .
Cited – Beghal v Director of Public Prosecutions SC 22-Jul-2015
Questions on Entry must be answered
B was questioned at an airport under Schedule 7 to the 2000 Act, and required to answer questions asked by appropriate officers for the purpose set out. She refused to answer and was convicted of that refusal , contrary to paragraph 18 of that . .
Cited – Welsh Ministers v PJ SC 17-Dec-2018
A patient detained under the Mental Health Act 1983 (MHA) may be released from compulsory detention in hospital subject to a community treatment order. The question arising on this appeal is whether a patient’s responsible clinician (may impose . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Police

Updated: 31 December 2021; Ref: scu.452268

The claimant, a social worker, had been accused of two offences of indecency with children, but the complainants had failed to identify him. The respondent later disclosed those allegations when called upon to provide an enhanced criminal record certificate. The claimant made complaint.
Held: The Act gave the respondent a discretion, but did nothing to disapply any common law duty of fairness. A disclosure would be an interference with the claimant’s right to respect for his private life, and must therefore be necessary and proportionate. No opportunity had been given for him to make representations, and in this case it had not been procedurally fair.
Wall J said: ‘In my view, the guiding principles for the exercise of the power to disclose in the present case are those enunciated in R v Chief Constable of the North Wales Police, Ex p AB. Each of the respondent authorities had to consider the case on its own facts. A blanket approach was impermissible. Having regard to the sensitivity of the issues raised by the allegations of sexual impropriety made against LM, disclosure should only be made if there is a ‘pressing need’. Disclosure should be the exception, and not the rule.

Wall J
Times 02-Feb-2004, [2004] 1 WLR 1518, [2004] EWHC 61 (Admin), [2004] 2 All ER 1
Bailii
Police Act 1997 115(7)
Citing:
Cited – Regina v Secretary of State for the Home Department ex parte Doody and Others HL 25-Jun-1993
A mandatory lifer is to be permitted to suggest the period of actual sentence to be served. The Home Secretary must give reasons for refusing a lifer’s release. What fairness requires in any particular case is ‘essentially an intuitive judgment’, . .
Cited – Regina v Chief Constable of North Wales Police and Others Ex Parte Thorpe and Another; Regina v Chief Constable for North Wales Police Area and others ex parte AB and CB CA 18-Mar-1998
Public Identification of Pedophiles by Police
AB and CB had been released from prison after serving sentences for sexual assaults on children. They were thought still to be dangerous. They moved about the country to escape identification, and came to be staying on a campsite. The police sought . .
Cited – Regina v Secretary of State for the Home Department, Ex Parte Pierson HL 24-Jul-1997
The Home Secretary may not later extend the tariff for a lifer, after it had been set by an earlier Home Secretary, merely to satisfy needs of retribution and deterrence: ‘A power conferred by Parliament in general terms is not to be taken to . .
Cited – Regina v Local Authority and Police Authority in the Midlands, ex parte LM 2000
The court considered the retention of information about an unsubstantiated child sexual abuse allegation. . .

Cited by:
Appeal from – Regina (X) v Chief Constable of West Midlands Police CA 30-Jul-2004
The claimant had been accused of offences, but the prosecution had been discontinued when the child victims had failed to identify him. The police had nevertheless notified potential employers and he had been unable to obtain work as a social . .
Cited – L, Regina (On the Application of) v Commissioner of Police of the Metropolis SC 29-Oct-2009
Rebalancing of Enhanced Disclosure Requirements
The Court was asked as to the practice of supplying enhanced criminal record certificates under the 1997 Act. It was said that the release of reports of suspicions was a disproportionate interference in the claimants article 8 rights to a private . .

Lists of cited by and citing cases may be incomplete.

Police, Human Rights

Updated: 31 December 2021; Ref: scu.193593

The appellant had been ostentatiously photographed by the police as he left a company general meeting. He was a peaceful and lawful objector to the Arms Trade. He appealed against refusal of an order for the records to be destroyed. The police had refused to disclose elements of their policies for overt photography.
Held: The appeal succeeded. The interference with the subject’s human rights was not proportionate (Laws LJ dissenting). Not only must the impugned act have some basis in domestic law, but also that it should be compatible with the rule of law and be accessible to the person concerned who must be able to foresee its consequences for him. Ordinarily the taking of photographs in a public street involves no element of interference with anyone’s private life and therefore will not engage Article 8(1), although the later publication of such photographs may be a different matter. However: ‘On the particular facts the police action, unexplained at the time it happened and carrying as it did the implication that the images would be kept and used, is a sufficient intrusion by the State into the individual’s own space, his integrity, as to amount to a prima facie violation of Article 8(1). It attains a sufficient level of seriousness and in the circumstances the appellant enjoyed a reasonable expectation that his privacy would not be thus invaded. ‘
The content of the phrase ‘private and family life’ is very broad indeed, and ‘The notion of the personal autonomy of every individual marches with the presumption of liberty enjoyed in a free polity: a presumption which consists in the principle that every interference with the freedom of the individual stands in need of objective justification. Applied to the myriad instances recognised in the Article 8 jurisprudence, this presumption means that, subject to the qualifications I shall shortly describe, an individual’s personal autonomy makes him – should make him – master of all those facts about his own identity, such as his name, health, sexuality, ethnicity, his own image, of which the cases speak; and also of the ‘zone of interaction’ . . between himself and others. He is the presumed owner of these aspects of his own self; his control of them can only be loosened, abrogated, if the State shows an objective justification for doing so.’
Laws LJ said: ‘ the content of the phrase ‘private and family life’ is very broad indeed. Looking only at the words of the Article, one might have supposed that the essence of the right was the protection of close personal relationships. While that remains a core instance, and perhaps the paradigm case of the right, the jurisprudence has accepted many other facets; so many that any attempt to encapsulate the right’s scope in a single idea can only be undertaken at a level of considerable abstraction. But it is an endeavour worth pursuing, since we need if possible to be armed at least with a sense of direction when it comes to disputed cases at the margin.’

Dyson LJ, Lord Collins, Laws LJ
[2009] EWCA Civ 414, Times 01-Jun-2009, [2010] 1 WLR 123, [2010] EMLR 1, [2009] UKHRR 1254, [2009] 4 All ER 951, [2009] HRLR 25, [2009] ACD 75
Bailii
European Convention on Human Rights 8 810
England and Wales
Citing:
Cited – Von Hannover v Germany ECHR 24-Jun-2004
Princess Caroline of Monaco who had, at some time, received considerable attention in the media throughout Europe, complained at the publication of photographs taken of her withour her permission.
Held: There was no doubt that the publication . .
Cited – Marper v United Kingdom; S v United Kingdom ECHR 4-Dec-2008
(Grand Chamber) The applicants complained that on being arrested on suspicion of offences, samples of their DNA had been taken, but then despite being released without conviction, the samples had retained on the Police database.
Held: . .
Cited – Rice v Connolly 1966
No Legal Duty to Assist a Constable
At common law there is no legal duty to provide the police with information or otherwise to assist them with their inquiries. Lord Parker set out three questions to be answered when asking whether there had been an obstruction of an officer in the . .
Cited – Iordachi And Others v Moldova ECHR 10-Feb-2009
. .
Cited – Murray v Big Pictures (UK) Ltd; Murray v Express Newspapers CA 7-May-2008
The claimant, a famous writer, complained on behalf of her infant son that he had been photographed in a public street with her, and that the photograph had later been published in a national newspaper. She appealed an order striking out her claim . .
Cited – Sporrong and Lonnroth v Sweden ECHR 18-Dec-1984
Balance of Interests in peaceful enjoyment claim
An interference with the peaceful enjoyment of possessions must strike a fair balance between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights. This balance is . .
Cited – Gillan, Regina (on the Application of) v Commissioner of Police for the Metropolis and Another HL 8-Mar-2006
The defendants said that the stop and search powers granted under the 2000 Act were too wide, and infringed their human rights. Each had been stopped when innocently attending demonstrations in London, and had been effectively detained for about . .

Cited by:
Cited – AB, Regina (On the Application of) v Secretary of State for Justice and Another Admn 4-Sep-2009
The claimant was serving a sentence of imprisonment. She was a pre-operative transgender woman, but held in a male prison. She sought review of a decision to refuse transfer to a women’s prison. The Gender Recognition Panel was satisfied that the . .
Cited – Bary and Others, Regina (on The Application of) v Secretary of State for Justice and Another Admn 19-Mar-2010
The applicants, incarcerated at Long Lartin pending extradition or deportation, challenged a decision further restricting their movements within the prison. All were unconvicted, and all but one were suspected of terrorist crimes. The changes were . .
Cited – JR38, Re Application for Judicial Review (Northern Ireland) SC 1-Jul-2015
The appellant was now 18 years old. In July 2010 two newspapers published an image of him. He was at that time barely 14 years old. These photographs had been published by the newspapers at the request of the police. The publication of the . .
Cited – ZXC v Bloomberg Lp CA 15-May-2020
Privacy Expecation during police investigations
Appeal from a judgment finding that the Defendant had breached the Claimant’s privacy rights. He made an award of damages for the infraction of those rights and granted an injunction restraining Bloomberg from publishing information which further . .
Cited – HRH The Duchess of Sussex v Associated Newspapers Ltd ChD 11-Feb-2021
Defence had no prospect of success – Struck Out
The claimant complained that the defendant newspaper had published contents from a letter she had sent to her father. The court now considered her claims in breach of privacy and copyright, and her request for summary judgment.
Held: Warby J . .
Cited – Miller v The College of Policing CA 20-Dec-2021
Hate-Incident Guidance Inflexible and Unlawful
The central issue raised in the appeal is the lawfulness of certain parts of a document entitled the Hate Crime Operational Guidance (the Guidance). The Guidance, issued in 2014 by the College of Policing (the College), the respondent to this . .

Lists of cited by and citing cases may be incomplete.

Police, Human Rights

Updated: 30 December 2021; Ref: scu.346308

The claimant challenged the respondent’s operational guidance on non-criminal hate speech. A third party had complained of his comments in tweets regarding transgender issues.

The Honourable Mr Justice Julian Knowles
[2020] EWHC 225 (Admin)
Bailii
England and Wales
Cited by:
Cited – Hayden v Associated Newspapers Ltd QBD 11-Mar-2020
The claimant alleged defamation by the defendant, and the court now considered the meanings of the words complained of. Another person had been held by police for seven hours after identifying the claimant as a transgendered man.
Held: The . .
Appeal from – Miller v The College of Policing CA 20-Dec-2021
Hate-Incident Guidance Inflexible and Unlawful
The central issue raised in the appeal is the lawfulness of certain parts of a document entitled the Hate Crime Operational Guidance (the Guidance). The Guidance, issued in 2014 by the College of Policing (the College), the respondent to this . .

Lists of cited by and citing cases may be incomplete.

Police, Human Rights

Updated: 30 December 2021; Ref: scu.648265

The Court was asked whether the Investigatory Powers Tribunal had the power to investigate whether police officers acrting as undercover agents, and having sexual relations with those they were themselves investigating had infringed the human rights of those individuals. In each case the officer had deceived the people involved.
Held: ‘ The phrase ‘personal or other relationship’ in section 26(8)(a) forms part of the definition of the type of conduct which can be authorised under section 27 and which, if it is carried out in ‘challengeable circumstances’, may be the subject of human rights proceedings before the IPT under section 65. In its plain and ordinary meaning, it includes intimate sexual relationships. In the principle of legality cases, there was a general power which was capable of being used for many purposes. There was doubt as to whether Parliament intended that it should be capable of being used so as to override fundamental rights. In the present context, there is no doubt that, in enacting RIPA, Parliament intended to override fundamental human rights subject to certain protections. Most pertinently, these include the requirement for necessity and proportionality. It can fairly be said that Parliament may not have foreseen in precisely what way those human rights might be overridden and there is certainly nothing to suggest that Parliament contemplated that surveillance by a CHIS might be conducted by using the extraordinary techniques that are alleged to have been used in the present case. But none of that matters. To give ‘personal or other relationships’ its ordinary meaning so as to include intimate sexual relationships does not produce any startling or unreasonable consequences which Parliament cannot have intended. ‘

Lord Dyson MR, Maurice Kay, Sharp LJJ
[2013] EWCA Civ 1342, [2013] WLR(D) 424, [2014] 1 All ER 882, [2014] 1 WLR 285
Bailii, WLRD
Regulation of Investigatory Powers Act 2000 26, European Convention of Human Rights 8(1), Human Rights Act 1998 7(1)
England and Wales
Citing:
Cited – Dudgeon v The United Kingdom ECHR 22-Oct-1981
ECHR (Plenary Court) Legislation in Northern Ireland that criminalised homosexual behaviour which was lawful in the rest of the UK.
Held: There was a violation of article 8, but it was not necessary to . .
Cited – A, Regina (on The Application of) v B; Regina (A) v Director of Establishments of the Security Service SC 9-Dec-2009
B, a former senior member of the security services wished to publish his memoirs. He was under contractual and statutory obligations of confidentiality. He sought judicial review of a decision not to allow him to publish parts of the book, saying it . .
Cited – Secretary of State for the Home Department v GG CA 23-Jul-2009
The defendant challenged the inclusion in a control order of an order to submit to personal searches. The Secretary of State appealed against a refusal of the order to ermit the searches.
Held: The appeal failed. Such orders were made solely . .
Cited – McE, Re; McE v Prison Service of Northern Ireland and Another HL 11-Mar-2009
Complaint was made that the prisoner’s privileged conversations with his solicitors had been intercepted by the police.
Held: The Act made explicit provisions allowing such interception and set out the appropriate safeguards. The interceptions . .
Cited – Regina v Special Commissioner And Another, ex parte Morgan Grenfell and Co Ltd HL 16-May-2002
The inspector issued a notice requiring production of certain documents. The respondents refused to produce them, saying that they were protected by legal professional privilege.
Held: Legal professional privilege is a fundamental part of . .
Cited – Collins v Wilcock QBD 1984
The defendant appealed against her conviction for assaulting a police constable in the execution of his duty. He had sought to caution her with regard to activity as a prostitute. The 1959 Act gave no power to detain, but he took hold of her. She . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .

Cited by:
Cited – Miller v The College of Policing CA 20-Dec-2021
Hate-Incident Guidance Inflexible and Unlawful
The central issue raised in the appeal is the lawfulness of certain parts of a document entitled the Hate Crime Operational Guidance (the Guidance). The Guidance, issued in 2014 by the College of Policing (the College), the respondent to this . .

Lists of cited by and citing cases may be incomplete.

Police, Human Rights

Updated: 30 December 2021; Ref: scu.517376

The claimant’s innocent cousin Jean Charles de Menezes had been shot and killed by police officers seeking a suicide bomber. She had complained that after investigation, no police officer had been prosecuted for any serious offence of murder or otherwise.

5878/08, [2012] ECHR 1594
Bailii
European Convention on Human Rights, Police Reform Act 2002, Police (Complaints and Misconduct) Regulations 2004
Citing:
See Also – Patricia Armani Da Silva v The United Kingdom ECHR 28-Sep-2010
The applicant complained of the failure to convict anyone of a serious criminal offence after her innocent cousin was shot dead by police officers who said they mistook him for a suicide bomber. . .
See Also – Patricia Armani Da Silva v The United Kingdom ECHR 7-Jul-2012
The claimant’s cousin had been shot by police mistakenly thinking he was a terrorist with a suicide bomb. . .
At Admn – Da Silva, Regina (on the Application of) v Director of Public Prosecutions and Another Admn 14-Dec-2006
An innocent bystander had been shot dead by police mistaking him for a suicide bomber. The claimant, a cousin, challenged decisions not to prosecute any officer for murder or manslaughter or any other criminal offence.
Held: Review was . .

Cited by:
Cited – Montgomery v Lanarkshire Health Board SC 11-Mar-2015
Change in Doctors’ Information Obligations
The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inability of the shoulders to pass through the pelvis. The consultant considered that a . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Police

Updated: 28 December 2021; Ref: scu.544277

ECHR The applicant complained of having been subjected to ill-treatment in police custody and lack of effective investigation against the police officers as well as the duration of the procedure. He relies on Articles 3, 6 and 13 of the Convention.

A Sajo P
36812/07 – Chamber Judgment, [2015] ECHR 219
Bailii
European Convention on Human Rights

Human Rights, Police

Updated: 28 December 2021; Ref: scu.543246

[2021] UKIPTrib IPT – 17 – 86
Bailii
England and Wales

Police, Human Rights

Updated: 28 December 2021; Ref: scu.670074

The applicant alleged, in particular, that his rights guaranteed by Article 3, 5 and 13 of the Convention, whether regarded separately or together, had been breached because he had been unable to obtain access to food in spite of his medical condition and he had been unlawfully deprived of his liberty for the period he spent under the control of a police officer and at the National Anticorruption Department’s Office for questioning prior to his placement in police custody. In addition, he alleged that he had lacked a domestic remedy to deal with his complaints concerning the aforementioned measures taken against him.

Josep Casadevall, P
41040/11 – Chamber Judgment, [2015] ECHR 10
Bailii
European Convention on Human Rights 3 5 13

Human Rights, Police

Updated: 25 December 2021; Ref: scu.541372

The applicant alleged a violation of Article 5 of the Convention in that, following the suspension of his detention on remand, he had been re-detained on insufficient grounds.

Josep Casadevall, P
15911/08 – Chamber Judgment, [2014] ECHR 1369
Bailii
European Convention on Human Rights

Human Rights, Police

Updated: 24 December 2021; Ref: scu.539812

Lack of access to lawyer after arrest.

Guido Raimondi, P
15065/07 – Chamber Judgment, [2014] ECHR 1294
Bailii
European Convention on Human Rights

Human Rights, Police

Updated: 23 December 2021; Ref: scu.538935

ECHR The applicant alleged that he had been detained without a court order and that his pre-trial detention had been unreasonably long.

Isabelle Berro-Lefevre, P
53812/10 – Chamber Judgment, [2014] ECHR 1167
Bailii
European Convention on Human Rights
Human Rights

Human Rights, Police

Updated: 23 December 2021; Ref: scu.538226

ECHR Article 2
Positive obligations
Article 2-1
Life
Police failure to take reasonable measures to protect life of lawyer killed by mentally disturbed man: violation
Facts – The applicants were five close relatives of a lawyer who was shot dead in 2002 by A.N., the husband of one of her clients. At the time, A.N. was mentally disturbed and had a history of domestic violence, unlawful possession of firearms and alcohol abuse. On the day before the shootings, A.N.’s wife informed the police that he had threatened to kill her, but they took no action. The following day after attempting to kill his wife, A.N. went to the lawyer’s office and shot her dead. He then committed suicide. Although shortly before the shooting he had been under police control, visibly disturbed and dangerous, the officers in charge had left him without supervision and had only belatedly reported the situation to the medical authorities. Following the shooting, disciplinary proceedings were brought against the police officer on duty on the day of the killing and the commanding officer who had been in charge the previous day. The officers were found guilty of falsifying the reports concerning the measures the police had taken on the morning of the incident and of failing to report their interview with A.N. and his wife the previous day.
Law – Article 2 (substantive aspect): Considering the circumstances in which the deceased had been killed, the Court found that what was at issue in the present case was the respondent State’s obligation to afford general protection to society against potential violent acts of an apparently mentally disturbed person. The risk to life had been real and immediate and the authorities had or ought to have had knowledge of it, as A.N. had appeared mentally disturbed and dangerous, the authorities had considered that further medical supervision was necessary, and A.N. had twice been under immediate police control and supervision on the morning of the incident. In such situations the States’ positive obligations under Article 2 of the Convention required the domestic authorities to do all that could reasonably be expected of them to avoid such a risk. However, the domestic proceedings had identified several shortcomings in the manner in which the police had dealt with the situation and there had been several other measures the authorities could reasonably have been expected to take. While the Court could not conclude with certainty that matters would have turned out differently if the authorities had acted otherwise, the fact that reasonable measures could have had a real prospect of altering the outcome or mitigating the harm sufficed to engage the State’s responsibility under Article 2. The failures of the police had not only been a missed opportunity, but, had they not occurred, could have objectively altered the course of events by leading to A.N’s medical supervision and the taking of further necessary action relevant to his apparently disturbed mental state. Therefore, the police’s lack of diligence disclosed a breach of the respondent State’s obligation to take all reasonable measures to safeguard the right to life.
Conclusion: violation (unanimously).
Article 41: EUR 20,000 jointly in respect of non-pecuniary damage.

74448/12 – Legal Summary, [2014] ECHR 1144
Bailii
European Convention on Human Rights

Human Rights, Police

Updated: 22 December 2021; Ref: scu.537994

ECHR Article 3
Degrading treatment
Inhuman treatment
Use of electrical discharge weapons (Tasers) during police raid on company offices: violation
Facts – Masked police officers raided the offices where the applicants worked. In the course of the operation they used electrical discharge weapons in contact mode, allegedly to overcome the applicants’ resistance and to prevent them from destroying evidence. Some of the applicants sustained burns as a result. A preliminary inquiry into the applicants’ allegations ended with a decision of the military prosecutor not to institute criminal proceedings against the officers concerned.
Law – Article 3: Electroshock discharges applied in contact mode (known also as ‘drive-stun’ mode) were known to cause intense pain and temporary incapacitation. Bulgarian law at the time lacked any specific provisions on the use of electroshock devices by the police, who were not trained in their use. The Court noted that in its 20th General Report the Committee for the Prevention of Torture (CPT) had expressed strong reservations regarding the use of electrical discharge weapons in contact mode. Properly trained law enforcement officers had many other control techniques available to them when they were in touching distance of a person who had to be immobilised.
Given the failure of the preliminary inquiry to establish in detail the exact circumstances of the incident and to account in full for the use of force of the extent and type alleged, the Government had failed to discharge the burden of disproving the applicants’ version of the events or to furnish convincing arguments justifying the degree of force used. There had thus been a violation of both the substantive and procedural aspects of Article 3.
Conclusion: violations (unanimously).
Article 41: EUR 2,500 in respect of non-pecuniary damage to each applicant whose complaint was declared admissible.

51284/09 – Legal Summary, [2014] ECHR 1143
Bailii
European Convention on Human Rights

Human Rights, Police

Updated: 22 December 2021; Ref: scu.537993

ECHR Article 2-2
Use of force
Fatal injuries caused by tear gas canister fired by member of security forces wearing a balaclava: violation
Article 2-1
Effective investigation
Use of balaclava preventing identification of member of security forces responsible for fatal injuries: violation
Article 46
Article 46-2
Execution of judgment
Measures of a general character
Respondent State required to take general measures to minimise risk of injury or death caused by tear gas canisters
Facts – In March 2006, as he was leaving his place of work, the applicant’s son found himself in the middle of a demonstration and was struck in the head by one of several tear-gas canisters fired by the security forces. He died a few minutes later. Administrative and criminal investigations were carried out, but they failed to identify the person who had fired the fatal shot.
Law – Article 2 (substantive and procedural limbs): It had been established beyond reasonable doubt that a member of the security forces had fired at the applicant’s son using a tear-gas canister launcher, wounding him in the head and causing his death. An investigation had been opened following the complaint lodged by the applicant in March 2006 but was problematic in several respects.
Firstly, the police and administrative investigations had failed to identify – and, consequently, to question – the member of the security forces who had fired the fatal shot, on the ground that his face had been masked by a balaclava. Nor had the investigative authorities been able with any certainty to ascertain how many members of the police force had been authorised to use this type of weapon at the time of the incident. Further, the prosecutor’s office had merely questioned a few members of the security forces, and there had been a lack of cooperation on the part of the police authorities with the prosecutor’s office responsible for the investigation; this was particularly inexplicable given that the latter’s sole aim had been to obtain official information from a State agency.
As a direct result of the decision to wear balaclavas the police officers responsible for the shots had effectively received immunity from prosecution. On account of the balaclavas, it had been impossible for the eye-witnesses to identify the police officer who had fired at the applicant’s son, and impossible to question, as witnesses or suspects, all of the officers who had used canister launchers.
That fact that the eye-witnesses were unable – on account of the balaclava – to identify the officer responsible for the fatal shot was in itself troubling. Where the competent national authorities deployed masked police officers to maintain public order or carry out an arrest, those officers were required to display a distinguishing mark – such as an identification number – which, while preserving their anonymity, w1ould make it possible to identify them for questioning should the conduct of the operation be subsequently challenged.
Thus, the domestic authorities had deliberately created a situation of impunity which had prevented identification of the officers suspected of having fired the tear-gas canisters without due care, establishment of the senior officers’ responsibilities and the conduct of an effective investigation. In addition, it was troubling that no information on the incident which had caused the death of the applicant’s son had been included in the police records.
There had been virtually no progress in the investigation in the first year after the incident. The prosecutor’s attempts to identify the police officers who had fired tear-gas canisters had not been followed up, or had been followed up only partially and with unacceptable delay. Furthermore, the prosecutor’s office had delayed in questioning the applicant, the few police officers whose identity had been communicated and the eye-witnesses. In addition, the mere fact that appropriate steps had not been taken to reduce the risk of collusion amounted to a significant shortcoming in the adequacy of the investigation.
Furthermore, despite a request by the applicant, no expert report had been ordered with a view to determining the manner in which the shot had been fired, especially as it appeared that it had been fired directly and in a straight line, rather than at an upward angle, and could not be considered as an appropriate action on the part of the police.
At the relevant time, Turkish law had not contained any specific provisions regulating the use of non-lethal weapons, such as tear-gas canisters, during demonstrations or any guidelines concerning their use.4 It could be inferred that the police officers had enjoyed a greater autonomy of action and have been left with more opportunities to take ill-considered action than would probably have been the case had they had the benefit of proper training and instructions. Such a situation did not provide the level of protection ‘by law’ of the right to life that was required in modern democratic societies in Europe.
It followed that no meaningful investigation had been conducted at domestic level capable of establishing the circumstances surrounding the death of the applicant’s son and that the Government had not satisfactorily shown that the use of lethal force against the applicant’s son had been absolutely necessary and proportionate. The same applied to the planning and control phases of the operation; the Government had not produced any evidence to suggest that the police had taken appropriate care to ensure that any risk to life was minimised. Further, with regard to their positive obligation under the first sentence of Article 2 – 1 to put in place an adequate legislative and administrative framework, the Turkish authorities had not done all that could be reasonably expected of them, both to afford citizens, and especially those against whom potentially lethal force was used, the requisite level of safeguards and to avoid the real and immediate risk to life which police operations to suppress violent demonstrations were likely to entail.
Having regard to the foregoing considerations, it had not been established that that the use of force to which the applicant’s son had been subjected had not gone beyond what was absolutely necessary. In addition, the investigation had not been effective.
Article 46
(a) General measures – With regard to the general measures that the State was to adopt in execution of the present judgment, the violation of the right to life of the applicant’s son, as guaranteed by Article 2 of the Convention, had again5 resulted from a lack of safeguards ensuring the correct use of tear-gas canisters. In consequence, the Court stressed the need to strengthen these safeguards without further delay, in order to minimise the risks of death and injury associated with the use of tear-gas canisters. In this respect, and so long as the Turkish system did not comply with the requirements of the Convention, the inappropriate use of these potentially deadly weapons during demonstrations was likely to entail similar violations to that found in the present case.
(b) Individual measures – With regard to individual measures, given that the investigation file was still open at domestic level and in the light of the documents in its possession, the Court considered that new investigative measures ought to be taken under the supervision of the Committee of Ministers. In particular, the measures required from the domestic authorities in order to combat impunity had to include an effective criminal investigation aimed at the identification and, if appropriate, the punishment of those responsible for the death of the applicant’s son.
Article 41: EUR 65,000 in respect of non-pecuniary damage; claim for pecuniary damage rejected.

50275/08 – Chamber Judgment, [2014] ECHR 815, 50275/08 – Legal Summary, [2014] ECHR 1030
Bailii, Bailii
European Convention on Human Rights

Human Rights, Police

Updated: 22 December 2021; Ref: scu.537547