This fundamental right ensures that individuals are protected against arbitrary killing by public authorities. Where potentially lethal force is used, the amount of force must not be more than is ‘absolutely necessary’. For example, where SAS soldiers killed three IRA members in Gibraltar, under the belief that a car bomb had been planted, the European Court of Human Rights (ECtHR) ruled that the force used was more than absolutely necessary.
This article may be applied in situations where the state is responsible for people kept in detention, for example, in police custody or in prison. It would also apply to private organisations, such as Group 4, where they provide a public service.
All organisations dealing with the detention, custody and restraint of individuals will have to be extremely careful about the methods used to overpower and control potentially violent suspects or prisoners. Police and prison officers must have adequate training to recognise potentially life-threatening situations. This could include identifying potential suicide risks. Officers may also have to be trained to deal with emergencies, and assess whether immediate medical assistance provided is of sufficient quality.
Alternatively, Article 2 may be applied in claims against medical practice. Individual NHS doctors, health authorities and trusts, and the General Medical Council will all be classed as public bodies as they carry out functions of a public nature. Current guidelines from the British Medical Association allow doctors to deny hydration and nutrition by tube for stroke victims and those suffering from dementia, even where the patient is not terminally ill, if it is thought to be in their ‘best interest’. This presently amounts to a form of unofficial euthanasia. Under Article 2, a patient with ‘Do not resuscitate’ on their notes may have a cause of action. Potential claimants may range from infants to the elderly.
A patient with a potentially fatal illness who reasonably believes that their illness is not being adequately funded may be able to make a claim. The courts would, however, have to balance the needs of the individual against the amount of funding available.
The rights of the unborn child may be the subject of a claims under Article 2. However, a ruling was made a few years ago against a man who attempted to prevent his pregnant girlfriend from having an abortion. In English law a foetus does not presently have legal rights separate from those of the mother.

Article 3: Freedom from torture or inhuman or degrading treatment

A range of applications may be possible under Article 3, for example, relating to the rights of prisoners, immigrants, mental patients, the punishment of children and issues of domestic violence.
A prisoner who is segregated for a long period of time or kept in unreasonable conditions may be able to make a claim, for example, a female prisoner handcuffed whilst giving birth, or separated from the baby for a long period after the birth has taken place.
An immigrant, who could establish substantial grounds that there would be a real risk of ill treatment were they returned to their country of origin, could bring a claim.
Inhuman and degrading treatment may include corporal punishment. In 1998 the ECtHR held that a child hit by his stepfather with a stick could make a successful application.
The issue of bullying might also be appropriate here, where the claim is based on a school’s failure to deal with the issue. Employees of public bodies who are bullied in the workplace might also have a cause of action.

Article 4: Freedom from slavery and forced labour

It is difficult to foresee any successful applications based on Article 4 in the UK.

Article 5: Everyone has the right to liberty and security of person

This article safeguards the right of the individual not to be deprived of their liberty, save in accordance with a procedure laid down by law. Lawful arrest and detention is determined by the Police and Criminal Evidence Act 1984 (PACE).
Evidence of ‘reasonable suspicion’ by an arresting police officer must be explained promptly to the suspect.
Detention beyond the fixed period(s) outlined in PACE will be actionable.
Detention for an activity that is not unlawful is in breach of Article 5. For example, if a person were handing out leaflets or holding up banners protesting the sale of weapons, in a peaceful manner, and was arrested and detained.
Detention for a long period of time awaiting a deportation decision would be actionable. The detention of newly arrived immigrants in hostels, against their will, and for excessively long periods, may also provide a cause of action.

Article 6: The right to a fair trial within a reasonable time by an independent and impartial tribunal

Everyone charged with a criminal offence is presumed innocent until proved guilty.
Everyone charged with a criminal offence has the following minimum rights:
- To be promptly informed, in a language they understand, of the nature of the charges against them.
- To have legal representation, or to choose to defend themselves.
- To call witnesses in support of their case.
The right to an independent judge and jury. Any evidence of jury tampering or intimidation is therefore a breach of Article 6.
Both sides in a dispute have the right to a full hearing.
The ECtHR has held that court martial procedures followed by the armed forces do not meet the requirements of independence and impartiality set out in Article 6.
Legal aid should be available in cases where a fair hearing and justice demands it. Recent changes to legal aid funding, however, may in fact mean that some potential claimants will not be able to fund a claim, for instance: in a personal injury case where the claimant has been unable to make a ‘no win, no fee’ arrangement; where there are no legal aid franchised solicitors (those allowed to offer the service) available in a particular area.
Current Government proposals to remove defendants’ right to plead ‘not guilty’ and to choose trial by jury, passing the decision to magistrates instead, may be challenged under Article 6.
There is also speculation whether the way some evidence is obtained can be successfully challenged, for example, evidence obtained by entrapment or by secretive means.

Article 7: No one shall be subject to retroactive penalties

No one can be convicted for an act that was not a crime when it was carried out.
No one can be subject to a heavier penalty than was applicable at the time the offence was carried out.
The law must be known and certain in the interests of everybody.

Note that rights under Articles 8, 9, 10, and 11 may be subject to restrictions, for example, where matters of national security are of overriding importance. Such limitations must, however, be founded in UK law and be significant.

Article 8: Everyone has the right to respect for their private and family life, home and correspondence

This article covers a very broad area relating to matters such as confidentiality; the development of new technology for surveillance purposes, for example, listening devices, telephone taps, CCTV; deportation orders; and childcare orders.
Confidential medical records revealing a person’s identity and medical history should not be disclosed.
Secret telephone surveillance may be conducted in the interests of national security and public safety. There is, however, a need for proper procedural safeguards to protect people against possible abuse. Any kind of surveillance exercised by a public body that does not fall within specified criteria may be actionable.
With regard to media intrusion into private and family life, it is debatable whether the courts would consider newspapers, magazines, television channels or television production companies to fall within the category of public bodies carrying out a public function. The BBC may be an obvious exception.
Prison authorities interfering with prisoners’ private mail may certainly be in breach of Article 8.
People who live in high-risk areas that may possibly be subject to escapes of toxic substances have a positive right to information which will inform any decision to re-locate.
An individual who has gained the right to reside in a country due to marriage to a national should be able to challenge a deportation order on divorce, if it would cause separation from their children.
Other potentially actionable areas include childcare, adoption, issues relating to child custody following divorce, and the right to access for children and relatives.

Article 9: Everyone has the right to freedom of thought, conscience and religion

This article sets out an obligation to ensure that holders of religious beliefs may freely practice and enjoy their religion.
This right is subject to limitations in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
At present UK blasphemy laws only provide protection to Christian religions. Under Article 9, however, the publication of books, articles, films or television programmes, deemed blasphemous by members of non-Christian religions, may be actionable.

Article 10: Freedom of expression

Some might say that Article 10 defines the scope of freedom in a truely democratic society. It concerns the freedom to hold opinions and to receive and impart information and ideas without interference by public authority. This includes the writing of books and articles, speech making, and broadcasting. More widely, freedom of expression could include other forms of ‘artistic’ expression, such as painting, photography, sculpture or music.
This article should enable journalists and the media to investigate more freely, in the ‘public interest’, and provide arguments to protect sources of information.
This right is subject to limitations in the interests of national security, protecting the reputations of others, and the need to prevent outbreaks of public disorder due to racial, political or religious incitement. Before making restrictions, however, the courts will need to consider carefully the presumption that a modern democratic society does allow freedom of expression.

Article 11: Freedom of assembly and association with others, including the right to form and join trade unions

This article gives individuals the positive right to peaceful and legal protests, demonstrations, marches and assemblies.
Legal provisions under the Public Order Act 1986 and the Criminal Justice and Public Order Act 1994 will have to take into account rights guaranteed in Articles 10 and 11.
Limitations in the interests of national security, public safety, and the prevention of disorder or crime are necessary to balance individual interests with the wider interests of society.
Challenges under Article 11 may arise from groups such as New Age travellers and environmental protesters who have recently found their rights in conflict.

Article 12: Men and women of marriageable age have the right to marry and found a family

Article 12 refers to national laws relating to this right.
In the UK lawful marriages may presently only take place between a man and a woman. General recognition of commitment within same-sex relationships and the influence of Article 12, however, may lead to a change in the law.
Recent publicity surrounding the artificial insemination of a woman in order to found a family for a homosexual couple, and the adoption of children by homosexual couples, may be also prove persuasive.
Article 12 would allow prisoners to marry.
It should also help those who wish to found a family via artificial insemination. This could include situations where the husband or partner has died but his sperm has been preserved for later use.

Article 14: Freedom from discrimination

This article states that rights set out in the ECHR ‘shall be secured without discrimination on any ground’. This includes discrimination in respect of rights under the Convention by sex, race, colour, language, religion, political or other opinion, property, birth or other status.
‘Or other status’ is a broad ‘catch all’ expression and would include discrimination on the grounds of disability. This term will enable claimants to bring actions against new forms of discrimination not presently covered by the law.
Article 14 could be used in conjunction with other articles to challenge discrimination in areas of the criminal justice system where a disproportionate number of ethnic minorities appear. For example:
- stop and search statistics (Articles 5 and 14)
- sentencing statistics (Articles 6 and 14)
- numbers dying as a result of excessive restraint, or in police custody (Articles 2 and 14).
- challenging an all white jury (Articles 6 and 14)

Protocols

Protocol 1: The peaceful enjoyment of property and possessions

The right to enjoy and have control over your property and possessions, summarised by the expression, ‘An Englishman’s home is his castle’, has long been recognised in British law.
Protocol 1 extends this meaning to include rights one may have over benefits from the state, such as social security benefits.
It might also include a challenge to the Inland Revenue on the grounds that too much tax was being levied, or that money due from the Inland Revenue was excessively slow in being returned.

Protocol 2: The right to an education

The ECHR states that the right of parents shall be respected to ensure that teaching and education is in conformity with their own religious and philosophical convictions.
Parents with particular religious convictions might be entitled to education for their children to be conducted in a separate school.
The funding of children with special education needs, throughout the ability spectrum, may have to be reviewed in light of possible challenges from parents.
Protocol 2 states that, ‘No person shall be denied the right to an education.’ Permanent exclusions from schools may be challenged where no adequate alternative is provided. Alternatively, claims may be brought against Local Education Authorities where the presence of disruptive pupils hinders learning.
Admissions procedures in universities may be subject to review where a candidate has the entry requirements but believes they are being discriminated against.
Nevertheless, note that the UK made a reservation in 1952, that the right to an education was limited by ‘the avoidance of unreasonable public expenditure’.

Protocol 3: The right to free elections

This protocol underpins the very basis of our democratic society. Citizens have the right to participate in free and open elections conducted by secret ballot at regular intervals.
Those who are disabled or infirm have the right to access to polling stations.
Experiments are already underway in some parts of the country to enable people to be able to vote in an election on different days. This is partly in response to low turnouts in local elections.
A person who is homeless and therefore excluded from the electoral register may be able to make a claim under this protocol.
A significant duty is placed on boarding schools with senior students, and residential homes and centres, to ensure that those entitled have the opportunity of registering to vote.