How Far Does The State Have A "Positive Duty" To Uphold… | tutor2u Law
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How Far Does The State Have A "Positive Duty" To Uphold The Right To Life?

In Article 2 of the ECHR, the right to life is described with reasonable clarity. What is not so clear, though, is whether or not the state has a "positive duty" to ensure that the right to life is protected.

In the case of Osman v United Kingdom (1988), the defendant (Paul Paget-Lewis), a teacher, was known to the police, for taking photographs of a student (Ahmet Osman) on his way home from school. He then proceeded to change his own name by deed poll, to include the name of the boy he had taken photos of, becoming Paul Ahmet Yildirim Osman. After his transfer from the school, he was interviewed by the police, who were told he blamed the deputy headteacher at his school for the challenges he faced and felt like “doing a Hungerford” (an infamous massacre).

The police decided to give the Deputy Headteacher some extra protection due to the nature of the defendant’s mental state. However, this was not enough. The defendant managed to steal a gun from a clay-pigeon range and shot Ahmet Osman’s father dead and injured Ahmet. He then shot the deputy headteacher, injuring him and killing his son.

Following the trial, where the defendant was found guilty of Voluntary Manslaughter on the grounds of Diminished Responsibility, it was argued by some that the police did not positively uphold the right to life of the families of the victims.

What’s The Issue?

One the one hand, the police knew of the threat, could have monitored the teacher more closely, or could have offered a higher standard of protection to the victims of the attack.

On the other hand, the police might have dealt with hundreds of similar cases in the past, where nothing happened at all. They might simply have thought that the threat was so unlikely to be acted upon that is wasn’t worth allocating resources to it.

The Judgement:

The European Court of Human Rights confirmed that, as in the case of Hill v Chief Constable of West Yorkshire Police, there was no breach of Article 2; the police did not breach their duty to protect the victims, as amongst other factors, they could not have predicted how dangerously the defendant would have acted, especially since he had been assessed by a psychiatrist as being of sound mind.

More recently, the UK Supreme Court decided that the police did owe a positive duty to protect victims, under Article 3, in the John Worboys sexual offences case. You can read more about that here:

https://ukhumanrightsblog.com/2018/02/21/supreme-court-awards-damages-against-the-police-for-failure-to-conduct-an-effective-investigation/

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