Chapter 10

Making A Difference

One of the most interesting features of the Human Rights Act when you get to grips with it is how its protection extends in more important ways to every one of us.  Take the current fuss about the abuse of the Human Rights Act by lawyers suing as a result of alleged breaches by our armed forces abroad.  In reality one of the main fears here is of the Ministry of Defence being sued by ordinary soldiers, either because of the horrible way they are treated in training when they are sent abroad or because they are ordered into battle or into transport work with hopelessly inadequate equipment.  The cases are dealt with at length in the book and some of the details are harrowing.  The litigants are the soldiers themselves or (where they have died) their families – not exactly the kind of aggressive human rights litigant being conjured up at the recent Conservative Party conference.

The Act has reached everyone closer to home as well, imposing duties on the authorities to protect us where we are at known and serious risk from stalkers or other obsessives  (Osman v United Kingdom, 1998) and extending this (in an important Supreme Court case, Savage v South Essex Partnership NHS Foundation Trust in 2008) to situations where the authorities are found  not to have done enough to protect patients detained under our mental health law who had a high likelihood of self-destruction if they are able to abscond. A particularly sad case is Rabone v Penine Care NHS Trust in 2012 in which a voluntary patient with a number of suicide attempts had been permitted home for a weekend despite the clearly articulated concerns of her parents. Once there she went to a local park on pretence of seeing a friend and hanged herself. Overturning both the High Court and the Court of Appeal, the Supreme Court unanimously found that the right to life in article 2 applied, the distinction between detained and voluntary patients being rather blurred in cases such as these.

A related thread of decisions that have been made possible by the Human Rights Act are those concerned with inquests, another area where the vulnerability of all of us is manifested in our shared mortality. Once again the positive obligation under article 2’s right to life has driven these changes, this time engaged not so much with the assessment of risk before the fatal event as with a proper investigation of it after it has occurred. The leading case came as early as 2004, R (Middleton) v West Somerset Coroner. A prisoner had killed himself and at the inquest the family pushed for a fuller explanation of what had happened than had been forthcoming from the authorities. Mrs Middleton thought that the risk of death should have been known to those responsible for her son and that they should therefore have been able to guard effectively against it. At the time the inquest rules necessitated only the blandest of statements as to ‘how, when and where the deceased came by his death’. Under pressure from Convention case-law and mindful of the procedural obligation it imposed on member states to investigate effectively deaths that might engage the right in article 2, the House of Lords expanded the old rule. Whereas ‘how’ had previously been ruled to extend only to ‘by what means’ it would henceforth be regarded as embracing also ‘in what circumstances’ the deceased had met his or her death. This freed up the inquest jury to engage directly with whatever concerns it might have over the incident which had given rise to the fatality they had been asked to consider. The dead man here for example had been in prison since he had been jailed at the age of 14 for killing his 18-month-old niece. Aged 30 when he took his own life, his time in prison had thrown up a series of indicators of a tendency towards self-destruction. Now the jury’s anxieties about these facts in this case could be properly recorded, and not left as a private note to the coroner which is all that the old interpretation of the rule had allowed. This precedent was expanded four years later when the House of Lords extended the investigatory obligation in article 2 to embrace near suicides and incidents productive of long-term injury, not inquests on these occasions of course but enhanced investigations which may in the right circumstances lead to a more public inquiry. There was no need to wait for death before asking the right questions about a possible failure of care that had produced harm.

This new reading of the investigative duty under article 2 has had an impact across the law. We are all open to events that expose our vulnerability, however secure we might believe ourselves to be. Perhaps we do not think this risk will manifest itself in conduct leading to our being imprisoned, albeit the figures for the prison population are now so high that this may be a false assumption. But only the most confident among us can be sure that we will live free of mental health debilities throughout our lives—and what if we are forsaken by our carers at exactly that point when we feel least able to cope?

There are many other examples of how the law has given us all protection we did not previously enjoy, the right to respect for our privacy for example – not part of the common law but achieved via reliance on the Act. The same point can be made, albeit more obliquely and in a more qualified way, about public protest. We do not all choose to engage in voluble or physical acts of dissent, or to assert our right (as we understand it) to demonstrate, and nor do we often have the necessity for protest thrust upon us. When Jane La Porte found the bus in which she and other peace campaigners were travelling to a protest (outside a royal air force base) turned around by the police, it was the demand for the Convention’s commitment to political speech and the rule of law that allowed the law lords to modify the broadly based common law power under which the police had purported to act (despite a plethora of statutory controls that they had also mobilized to help them control the crowd). Had the data on police files of 91-year-old protestor John Catt all been held in one place so that there was a singular file on him (rather than merely the disparate references that actually existed) then the challenge he brought to the police system of information collection and retention might have been more successful. But such ‘nominal records’ had in fact been destroyed some years before. If we let the Human Rights Act go we will rue its loss at exactly that moment when life’s ill-chance has led us to want to rely on it.

Britain, Europe and Human Rights