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The use of lethal force: What is absolute necessity Learning from Northern Ireland

ECHR. Article 2:(1)Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. . ICCPR. Article 6(1):Every human being

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The use of lethal force: What is absolute necessity Learning from Northern Ireland

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    1. The use of lethal force: What is absolute necessity? Learning from Northern Ireland Keir Starmer QC Doughty Street Chambers Human Rights Lawyers’ Association 24 January 2006

    2. ECHR Article 2: (1) Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

    3. ICCPR Article 6(1): Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

    4. ECHR principles Lethal force may be used under Article 2(2), ECHR, but only when it is ‘absolutely necessary’.

    5. ECHR principles The only legitimate purposes for using lethal force are: self defence or defence of others (Wolfgram v Germany; Diaz Ruano v Spain); to effect an arrest or prevent escape (Farrell v UK; Kelly v UK; Aytekin v Turkey); to quash a riot or insurrection (Stewart v UK; X v Belgium).

    6. ECHR principles The test of ‘absolute necessity’ under Article 2 is much stricter than the test of ‘necessity’ under Articles 8 to 11.

    7. ECHR principles The test of ‘absolute necessity’ involves a determination of whether the use of force was ‘strictly proportionate’ (McCann v UK; Andronicou and Constantinou v Cyprus).

    8. ECHR principles The test of ‘absolute necessity’ also involves an assessment of the organisation and planning (if any) of the operation during which lethal force was used: the training, instructions and communications of those who used lethal force and those who lay behind the operation are relevant to this determination (McCann v UK; Aytekin v Turkey). In particular, was the operation: … planned and controlled by the authorities so as to minimise, to the greatest extent possible, recourse to lethal force? (McCann v UK).

    9. ECHR principles Failure to follow the procedures laid down in domestic law automatically breaches Article 2 (X v Belgium).

    10. McCann v UK (1996) 23 EHRR 97 UK authorities receive information about an attack in Gibraltar Knew they were confronting the IRA Double consideration: protect public, and use minimum force Soldiers' honest belief about detonation enough

    11. McCann v UK (1996) 23 EHRR 97 Decision taken not to prevent entry to Gibraltar All crucial assumptions wrong But nonetheless conveyed to soldiers as certainties Trained to continue shooting until suspect dead Insufficient care used to evaluate information

    12. Andronicou and Constantinou v Cyprus (1997) 25 EHRR 491 Lovers tiff ends with man holding girlfriend hostage in a flat Decision taken to negotiate means time runs out Threat from man just before midnight Decision to use special armed unit Machine guns because of flashlights Single shot from man, 25 shots returned Man and girlfriend killed

    13. Nachova v Bulgaria (2005) 19 BHRR 1 Two conscripts flee military prison, unarmed Special unit sent to arrest them Instructed to use whatever means were dictated by the circumstances When confronted in a village, the two conscripts run away Ordered to stop and then shot * No necessity could arise for using lethal force to arrest where the individual posed no threat to life or limb

    14. ACPO Manual of Guidance on Police Use of Firearms Firearms may be fired by Authorised Firearms Officers in the course of their duty only when absolutely necessary after traditional methods have been tried and failed or must, from the nature of the circumstances, be unlikely to succeed if tried.

    15. ACPO Manual of Guidance on Police Use of Firearms Police should not normally fire warning shots. There are serious risks associated with the firing of such shots, which have the potential to cause unintentional death or injury. They may also lead a subject or other officer to believe that they are under fire.

    16. ACPO Manual of Guidance on Police Use of Firearms The test of using ‘force which is no more than absolutely necessary’ as set out in Article 2 (2) of the European Convention on Human Rights, should be applied in relation to the operational discharge of any weapon.

    17. ACPO Manual of Guidance on Police Use of Firearms The ultimate responsibility for firing a weapon rests with the individual officer, who is answerable ultimately to the law in the courts. Individual officers are accountable and responsible for all rounds they fire and must be in a position to justify them in the light of their legal responsibilities and powers.

    18. ACPO Manual of Guidance on Police Use of Firearms Authorised Firearms Officers shall identify themselves as such and shall give a clear warning of their intent to use firearms, with sufficient time for the warnings to be observed, unless to do so would unduly place any person at a risk of death or serious harm, or it would be clearly inappropriate or pointless in the circumstances of the incident.

    19. ACPO Manual of Guidance on Police Use of Firearms A Gold or Silver Commander can authorise when shots MAY be fired but such authorisation will not exempt an individual from their responsibility. No general rule can be laid down and much will depend on the circumstances of individual incidents.

    20. ACPO Manual of Guidance on Police Use of Firearms However, it may also be appropriate for a Commander to direct that shots WILL be fired. Such a direction will not exempt an individual from their responsibility and, therefore, must always be supported by appropriate and necessary information to justify the firer’s actions. An example of circumstances where directed fire may be necessary would be in seige or terrorist incidents e.g. suicide bombers.

    21. ACPO Manual of Guidance on Police Use of Firearms When it is considered necessary to open fire on a subject, using conventional ammunition, police officers need to shoot to stop an imminent threat to life … Research has indicated that only shots hitting the central nervous system (which is largely located in the central body mass) are likely to be effective in achieving rapid incapacitation. Shots which strike other parts of the body cannot be depended upon to achieve this.

    22. ACPO Manual of Guidance on Police Use of Firearms Alternative points of aim will be appropriate for approved less lethal technologies in accordance with guidelines, i.e. the use of baton rounds with the intention that they should strike the lower part of a subject’s body.

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