Human Rights Act Implications for Protection

The Human Rights Act 1998 focuses on protecting people from having their rights infringed by the state rather than by individuals. The Act means that there is a positive duty on the state to protect individuals, including the young and other vulnerable people, from serious breaches of their personal integrity such as violent crime. This duty requires that the state has in place measures to secure to the individual:

• The right to life.
  
• The prohibition against inhuman and degrading treatment and torture.
  
• The right to security of the person.
  
• The right to private, family and home life.
  

Such a duty includes a duty to have adequate laws in place to punish those who violate the right to life of others, or who inflict on others inhuman or degrading treatment.

The duty to Protect
The Human Rights Act also means that there is a positive obligation on the part of public authorities to protect individuals. The European Court of Human Rights adopted the following important principles in Osman v UK 1998:

• In certain, well-defined circumstances, there is a positive obligation on the authorities to take preventative operational measures to protect an individual whose life is at risk from the criminal acts of another individual. However this obligation must be interpreted in such a way as not to impose an impossible or disproportionate burden on the authorities. The authorities must do all that can reasonably be expected of them to avoid a real and immediate risk to life.
  

• This could have particular implications for cases where there is a known threat from a known individual such as in domestic violence and harassment cases. This obligation could also include preventing the escalation of racial hatred into violence.
  

The Duty to Investigate
The right to life, guaranteed by Article 2 of the Convention, imposes a duty on the state to investigate any death which can be attributable to the action of the state. This includes deaths caused by armed law enforcement officers, deaths in police or prison custody, and deaths and deaths caused by police in the course of their duties. The European Court of Human Rights (in McCann v UK) said that the prohibition on arbitrary killing which Article 2 imposes on the state would not work in practice if there was no means to investigate whether a death that may have been caused by the state was unlawful.

The duty to investigate can even be imposed where the death was not caused by violence, but where it occurred while the person was in the care of the state, such as a death in a state hospital or care home.
Where there is a duty to investigate, the European Court of Human Rights (in Jordon v UK) the investigation must be:

• Carried out in public by an independent body;
  
• Thorough and rigorous;
  
• Capable of establishing who was responsible for the death;
  
• Capable of determining whether a killing was justified under Article 2;
  
• Allow the effective involvement of the family of the deceased.
  

The obligation to investigate will not only apply in the cases of a breach of the right to life, but may also arise where there is an alleged violation of the right not to be subjected to torture or to inhuman or degrading treatment under Article 3.