Permissible Use of Force and the Investigation of Police-Related Deaths
Bennett v United Kingdom - 5527/08 [2010] ECHR 2142 (7 December 2010)
An essential safeguard to the right of life enshrined in art 2 of the European Convention on Human Rights is that effective official investigations are conducted when individuals are killed through the use of force. In Bennett, the European Court of Human Rights examined the requirements of this safeguard in the context of a coronial inquest investigating a fatal police shooting of a 39-year-old male suffering from mental health problems. Unanimously, the European Court found that the inquest conducted by the United Kingdom constituted an effective investigation in accordance with art 2 and the application was dismissed. This case provides guidance on the interpretation of the investigative requirements attached to the right to life outlined in s 9 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
Facts
Mr Bennett’s Death
On 16 July 2001, two police officers received a message from the public that ‘a heavily built black man’ was carrying a handgun around Brixton, London. Upon arriving in the area they saw Mr Bennett, who matched the description they were given. The officers attempted to stop him, but Mr Bennett grabbed a passer-by and pointed what appeared to be a firearm at his neck before pushing him aside. One of the officers then shot Mr Bennett twice, believing his own life and that of others were in danger. When Mr Bennett ran away and crouched behind a pillar, not dropping his ‘firearm’, the same officer shot him again, and when he ran into a nearby doorway, the officer fired again. At this point, Mr Bennett dropped from his hands a cigarette lighter shaped like a gun. Mr Bennett died later that day in hospital.
The Inquest
A coronial inquest into Mr Bennett’s death was conducted to discharge the United Kingdom’s investigative obligation under art 2. During the inquest, the Coroner considered that there was insufficient evidence to leave open the possibility of an unlawful killing, and hence left to the jury only the options of lawful killing or an open verdict. To explain the legal meaning of ‘lawful killing’, the Coroner then instructed the jurors to consider whether the force used was ‘reasonable’, although art 2 requires the force used to be ‘absolutely necessary’ (which is also the wording used in the police training manual). The jury found the death to be the result of lawful killing.
The applicant alleged breach of art 2 because the Coroner erred in:
- omitting the words ‘absolutely necessary’ from their instructions to the jurors; and
- removing the option of an unlawful killing verdict.
Decision
Domestic Judicial Review
At first instance, the England and Wales High Court dismissed the application for judicial review. Firstly, it found that the use of ‘reasonable’ was compatible with the words ‘absolutely necessary’, because ‘[t]o kill when it is not absolutely necessary to do so is surely to act unreasonably’. Secondly, there was so little evidence to suggest unlawful killing that to leave the option open to the jury would be unsafe. The High Court added that considering the jury returned a verdict of lawful killing, this meant the argument about failing to leave the option of unlawful killing was moot, because if the jury was under any doubt of the lawfulness of the officer’s actions they would have returned an open verdict.
The Court of Appeal upheld the High Court’s decision in dismissing the application.
Appeal to the European Court
The European Court affirmed the decision of the domestic courts by unanimously dismissing the application as ‘manifestly ill-founded’. In reaching their decision, the Court closely examined the domestic legal framework governing the conduct of inquests and their judicial review, and reiterated a view expressed in previous judgments that the inquest procedures of the United Kingdom fulfils the art 2 requirements of an effective investigation into the loss of life.
The European Court then discussed whether the two alleged deficiencies outlined above undermined the fact-finding role of the inquest and compromised the effectiveness of the investigation into the circumstances of Mr Bennett’s death. On the first point, the European Court found that, although it would have been preferable for the Coroner to use the words ‘absolutely necessary’, there is no sufficiently material difference between this threshold and that of ‘reasonable’. On the second point, the European Court agreed with the analysis of the High Court and Court of Appeal, finding that the omission of the unlawful killing verdict did not impair the investigation.
Relevance to the Victorian Charter
Section 9 of the Charter recognises that ‘every person has the right to life and has the right not to be arbitrarily deprived of life’. The explanatory memorandum further states that the right to life has been interpreted as ‘encompassing a procedural obligation to undertake effective coronial investigations where required’.
The Coroners Act 2008 (Vic) (‘the Coroners Act’) provides that the State Coroner must investigate certain deaths. It should be noted that certain aspects of the United Kingdom legislation highlighted by the European Court in the Bennett case and found to provide effective investigation procedures are mirrored in the Victorian legislation, such as the requirement to hold an inquest in the case of a violent or unnatural death; and the inquisitorial nature of the Coroner’s Court (contained in ss 4(2) and 89(4) of the Coroner’s Act respectively). On that basis, a Victorian Court might also consider that the Victorian framework for the investigation of deaths would also be an adequate safeguard to the right to life.
Moreover, the Criminal Code of Australia contains a test for the lawful use of force in self-defence that is similar to that contained in the UK Criminal Law Act, requiring conduct to be ‘a reasonable response in the circumstances as he or she perceives them’. Despite the words ‘absolutely necessary’ being absent from the Charter definition of the right to life, if the logic of the English and European courts in Bennett is applied in Australia, where the conduct results in death it must have been ‘absolutely necessary’ in order to be ‘a reasonable response’.
The decision is at www.bailii.org/eu/cases/ECHR/2010/2142.html.
Fei Wu, Seasonal Clerk, Mallesons Stephen Jaques Human Rights Law Group
‘Human Rights are Not Just for the Virtuous’: Will Criminal Conduct Prevent a Claim for Breach of Human Rights?
Al Hassan-Daniel & Anor v HM Revenue and Customs & Anor [2010] EWCA Civ 1443 (15 December 2010)
This case concerned the death in custody of Anthony Daniel, a drug smuggler and user. Mr Daniel's widow and father brought a claim under arts 2 and 3 of the European Convention on Human Rights against Her Majesty's Revenue and Customs, the UK's customs and tax department. The England and Wales Court of Appeal held that the 'criminality' defence – which makes a claim brought to secure or enforce the benefit of a criminal transaction non-justiciable – does not operate to prevent human rights claims under the European Convention.
Facts
Anthony Daniel, a drug smuggler and user, was stopped at Heathrow airport and traces of cocaine were detected on his person. Unbeknownst to customs officers, Mr Daniel had one kilo of raw cocaine in 116 sealed packages in his digestive tract. Mr Daniel was arrested, detained and taken to hospital, where an X-ray revealed the contents of his stomach. Mr Daniel gave a no-comment interview and was subsequently charged and remanded in custody. Whilst in custody, Mr Daniel ignored warnings from staff, doctors, his solicitors and his father that packets of cocaine in his system could cause him serious harm, and he refused all food and almost all fluids for a week. On 18 February, after consuming some food and fluid, Mr Daniel demonstrated signs of acute cocaine poisoning and died soon after. At a coronial inquest, the cause of Mr Daniel's death was certified as acute cocaine toxicity and cocaine-related heart damage.
Mr Daniel's widow, Ayesha Al Hassan-Daniel, and his father (the appellants), brought a claim under arts 2 and 3 of the European Convention, against Her Majesty's Revenue and Customs (the respondent). They submitted that Daniel's life could have been saved with improved care and a better policy for handling such cases. In its defence, the respondent submitted that: (i) claims based on criminal acts such as those committed by Mr Daniel are not justiciable; (ii) there was no failure to take adequate steps to comply with the European Convention; and (iii) even if there was such a failure, it did not cause Mr Daniel's death. The appellants appealed against the 29 October 2009 decision of Judge Cowell in the Central London County Court to strike out their claim as unarguable on its face or as bound to fail due to the criminality defence. The issue on appeal was the applicability of this defence to a human rights claim.
Decision
The Court of Appeal upheld the appeal, concluding that the common law defence of 'criminality' – that a claim brought to secure or enforce the benefit of a criminal transaction should not be heard by the courts – does not operate to prevent a claim based on the European Convention. The Court characterised the criminality defence as a 'policy rather than a principle', and described it as a 'control on jurisdiction' which serves to uphold the integrity of the courts, to deter misconduct and to prevent wrongdoers from benefiting from their wrongdoing.
The Court stressed that the real, 'critical preliminary' issue for determination in this case was that of causation, rather than criminality – whether deficiencies in the respondent's management of the prison materially contributed to Mr Daniel's death, or whether his death was caused by his own voluntary acts in ingesting the cocaine and attempting to keep it in his body. However, as the respondent did not seek to strike out the claim on this basis, the Court merely commented in obiter that the appellants would be unlikely to succeed on the causation issue on the basis of the evidence before the Court.
The Court received a written submission from the human rights organisation Justice, which was granted permission to intervene in the appeal. The submission contended that, for reasons of principle, European Court of Human Rights jurisprudence does not permit a victim's criminality to bear on the question of whether a member state has breached its duties owed to the victim. The basis of this argument is that a claim brought under the European Convention is made under statute, not at common law. As the right invoked is a Convention right, it is for the victim to demonstrate that the state's failure to uphold that right resulted in some recognised detriment or harm. On this view, 'human rights are not just for the virtuous', and it is irrelevant that such detriment or harm may have been inflicted upon an individual with 'severely tainted' merits.
Article 2 of the European Convention provides that everyone's right to life shall be protected by law, and that no one should be intentionally deprived of his or her life except upon conviction for a crime which provides for such a sentence. Further, art 2 will not have been breached where deprivation of life results from the use of force which is no more than absolutely necessary in defence of any person from unlawful violence; or so as to effect a lawful arrest or prevent escape of a lawfully detained person; or in lawful action taken to subdue a riot. Article 3 provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. These articles are given domestic effect in the UK by the Human Rights Act 1998 (UK).
The Court found that the State had satisfied its obligation under art 2 to investigate any death which may have been caused by a breach of this provision through a three-week coroner's inquest into Mr Daniel's death. The coroner recommended that a policy be developed whereby prisoners who are suspected of having ingested and internally concealed drugs consult an independent doctor, which occurred in Mr Daniel's case.
The Court examined three decisions of the European Court in which victims who had engaged in unlawful activity successfully invoked arts 2, 3 and 6 of the European Convention in their claims against the state. The Court emphasised that in each of the cases, neither the court nor the state suggested that the victim's criminal conduct barred the claim; criminality was only relevant, if at all, to the issue of redress. According to the Court, 'perceptible and sound policy reasons' existed for the absence of the criminality defence from human rights jurisprudence, and introducing the defence into a claim under the Human Rights Act 1998 (UK) would construct a barrier for UK citizens:
It is one thing to discountenance the manipulative use of a Community right for a purpose for which it was not meant; it is another to create a gateway to human rights which only the virtuous may enter.
The Court further held that the appellants had standing to bring the present action, as they satisfied the definition of 'victim' in s 7(1) of the Human Rights Act 1998 (UK), which is given an independent meaning under the European Convention by s 7(7), and can include close relatives of an individual whose rights under the Convention have allegedly been violated.
The Court thus allowed the appeal, emphasising that this merely enabled the action to proceed and expressing 'grave doubts' about the claim's prospects of success on the merits.
Relevance to the Victorian Charter
If the criminality defence were invoked by the State of Victoria in a rights-based complaint pleaded under the Victorian Charter, the Victorian Supreme Court may adopt the approach taken by the Court in Al-Hassan Daniel and hold that an applicant's criminal conduct is no bar to claims under the Charter. Such an approach emphasises that human rights must be protected and upheld irrespective of a person's criminal behaviour.
Sections 9 (right to life) and 10 (protection from torture and cruel, inhuman or degrading treatment) of the Victorian Charter are analogous to arts 2 and 3 of the European Convention. The Court in Al-Hassan Daniel placed considerable emphasis upon European Court jurisprudence in interpreting the relevant Convention rights. The absence of comparable jurisprudence in Victoria provides scope for the development of domestic principles to govern the relationship between criminal behaviour and human rights under the Victorian Charter.
The decision is at www.bailii.org/ew/cases/EWCA/Civ/2010/1443.html.
Georgina Dimopoulos is a lawyer with Allens Arthur Robinson