The grounds of challenge made against the
decisions are as follows:
(i) The decision of the Secretary of State dated 17 March 2003 refusing the
applicant's admission to the Scheme -
(a) Breach of the right to life under Article 2 of the European Convention on
Human Rights or failing to provide the applicants with the right to protections
and reasonable operational measures to ensure their protection.
(b) Procedural unfairness.
(ii) The decision of the Secretary of State dated 6 May 2003 refusing to
disclose the threat risk assessment and
(iii) The decision of the Chief Constable dated 19 June 2003 refusing to
disclose the threat risk assessment -
(a) Breach of the right to a fair hearing under Article 6 of the European
Convention and the determination of the applicant's rights under Article 2.
(b) Procedural unfairness.
(c) Obstruction of the applicant's opportunity to challenge the original
determination by way of judicial review.
(d) Acting incompatibly with the applicant's Article 6 rights and delegating
consideration of those rights to an alternative public authority.
(e) Fettering of discretion by the rigid application of a pre-determined policy
to delegate issues of disclosure to the Police Service.
(f) Applying an unlawful policy.
(g) Applying a disproportionate blanket policy.
Article 2 of the European Convention.
[12] The developments in relation to the positive
obligations of the State under Article 2 were discussed in relation to the
operation of the Scheme in Re W's Application [2004] and Re Frazer's
Application [2004]. The summary set out in the latter case is repeated
below.
(1) Article 2 of the European Convention provides for the right to life in terms
that "everyone's right to life shall be protected by law". This has been
interpreted as including a positive obligation to protect life and "it is
sufficient for an applicant to show that the authorities did not do all that
could be reasonably expected of them to avoid a real and immediate risk to life
of which they have or ought to have knowledge". Osman v United Kingdom
(1998) 29 EHRR 245.
(2) Lord Saville v Widgery Soldiers (2001) EWCA CIV 2048 concerned the
risk to soldiers giving evidence to the Saville Inquiry at the Guildhall in
Londonderry. In the Court of Appeal Lord Phillips approach was to consider first
the nature of the subjective fears that the soldier witnesses were likely to
experience if called to give evidence in the Guildhall, to consider the extent
to which those fears were objectively justified and then to consider the extent
to which those fears, and the grounds giving rise to them, would be alleviated
if the soldiers gave their evidence somewhere in Great Britain rather than in
Londonderry. That alleviation then had to balanced against the adverse
consequences to the Inquiry of the move of venue, applying common sense and
humanity. The result of the balancing exercise determined the appropriate
decision. This was a course that it was believed would accommodate both the
requirements of Article 2 and the common law requirement that the procedure
should be fair.
(3) The issue has been considered in relation the admission of prisoners into a
protected witness unit where the Prison Service act on advice from the police in
R (on the application of DF) v Chief Constable of Norfolk Police and
Secretary of State for the Home Department (2002) EWCH 1738 (Admin). Crane J
having considered Osman and Widgery Soldiers stated that
the requirement that the authorities knew or ought to have known of the risk
will usually be satisfied much more readily in relation to a prisoner. The
authorities are in a position to take measures to avoid any risk to an extent
much greater than are the police in relation to a member of the community. The
authorities are likely to be less inhibited with the provision of a protective
regime is unlikely to affect the rights of others (para 37). Consideration was
given to what a 'real and immediate' risk involved in the prison context. A real
risk is one that is not simply a fear felt by the prisoner, but is disclosed by
all the information available. Immediacy requires that the risk must be present
and continuing (para 38).
(4) In R (on the application of Bloggs) v Secretary of State for the Home
Department (2003) EWCA CIV 686, a further case concerned with protection for
a prisoner, the Court of Appeal reviewed the decisions. It was stated that if a
risk to life is not "real", it is not a risk to life. If a risk to life is not
"immediate" in the sense that it is not present at the time or during the period
when it is claimed that a protective duty is owed by a public duty it is not a
risk that can engage Article 2. It is a future risk that may, at some later date
do so. To be a candidate for engaging Article 2, all that is needed is "a risk
to life". To engage it depends, in the circumstances of each case, on the degree
of risk, which necessarily includes consideration of the nature of the threat,
the protective means being or proposed to counter it and the adequacy of those
means (para 61). Further it was stated that it could be unhelpful to attempt to
identify some sort of broad band of thresholds of risk for different categories
of case (para 62). The starting point is that the right to life under Article 2
is unqualified (para 64). However despite the fundamental and unqualified nature
of the right to life it is still appropriate to show some deference to
and/or to recognise the special competence of the (Prison Service) in making a
decision going to the safety of the inmates life. The intensity of the court's
review is greater – perhaps greatest in an Article 2 case – that for those human
rights where the Convention requires a balance to be struck (para 65).
(5) Carswell LCJ visited this issue in Re Meehan's Application (2004)
NIJB 53 and agreed with the approach of the Court of Appeal in Lord Saville
of Newdigate v Widgery Soldiers, which it was stated was not inconsistent
with that of the ECtHR in Osman v United Kingdom. The approach of the
court should be to ascertain the extent or degree of risk to life, take into
account whether or not that risk had been created by some action carried out (or
proposed) by the State, determine whether it would be difficult for the State to
act to reduce the risk and whether there were cogent reasons in the public
interest why it should not take a course of action open to it which would reduce
the risk. The court should then balance all these considerations in order to
determine whether there has been a breach of Article 2 (para18).
(6) The approach to Article 2 obligations is not based on an applicant reaching
a threshold of risk set at different levels in different contexts, but rather
about balancing the risk against reasonable measures to reduce the risk. The
relevant risk must be real and immediate where a real risk is one that is
objectively verified and an immediate risk is one that is present and
continuing. The reasonable steps required by the authorities depend upon the
degree and character of the risk and the anticipated effect of the proposed
measures. Carswell LCJ in Re Meehan's Application put four factors in the
balance, first, the extent or degree of risk, second, whether the State creates
the risk, third, the difficulties involved in reducing the risk, and fourth, any
public interest in not taking action.
A schedule of levels of risk may not be helpful in determining the appropriate
response to a real and immediate risk. Inclusion in the Scheme may or may not be
the appropriate response to a real and immediate risk. The degree and character
of a risk that is classed as significant or serious may be such that it does not
warrant the home protection measures accorded by the Scheme, but rather some
different measures depending on the degree and character of the risk. On the
other hand the degree and character of a lesser risk may require appropriate
action that includes some home protection measures. The operation of the Scheme
and protection outwith the Scheme is but one part of the measures operated by
public authorities in relation to threats to the lives of citizens. Whether one
or more of the available arrangements should be applied to a particular case
must depend on the nature and extent of the threat in question and the
circumstances of the case.
The starting point for the State must be to address the requirements of Article
2 by reference to the balancing exercise. Admission to the Scheme or protection
outwith the Scheme may be a means of meeting Article 2 obligations in a
particular case. However other means may be more appropriate to meet Article 2
obligations, again depending on the circumstances of the particular case.
The Secretary of States approach to Article 2.
[13]