International expert explores the right to life
Recently, Law News was fortunate enough to attend the 2014 Annual Human Rights Lecture, held at the University of Auckland’s Law School and presented by the New Zealand Centre for Human Rights Law, Policy and Practice.
The topic of the evening was “State Liability For The Right To Life”, led by Professor Satvinder Juss of King’s College London – an international specialist in human rights, public law, comparative constitutional law and international refugee law.
Professor Juss considered the right to life protection in section 8 of the New Zealand Bill of Rights Act 1990 (NZBORA), as well as equivalent protections enshrined in overseas bills of rights such as Article 2 of the European Convention on Human Rights. Questions raised included what counts as a deprivation of life other than in accordance with principles of fundamental justice, and how might tort law intersect with human rights law?
Right to life in New Zealand and overseas
Section 8 of the NZBORA provides that: “No one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice.”
Professor Juss noted that section 8 “has lain dormant in your system”, in contrast to the United Kingdom which boasts many cases dealing with the right to life. “I wonder why so much caution is being used in using this tool. There is so little jurisprudence on this, even though the NZBORA is almost 25 years old,” he commented.
Section 8 has much in common with its more widely-used counterparts elsewhere. Section 7 of the Canadian Charter of Rights and Freedoms states: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” The 14th amendment to the United States Constitution protects all persons from being deprived of “life, liberty, or property, without due process of law”.
Article 2 of the European Convention on Human Rights provides: “Everyone’s right to life shall be protected by law … Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary …”
So any deprivation of life has to be justifiable when looking at some standard of law, whether this is worded as “fundamental justice” (as in New Zealand and Canada), “due process” (in the United States), or in accordance with “absolutely necessary” force (as in the EU and UK).
Professor Juss began by discussing the meaning of “consistent with the principles of fundamental justice”. To give context to the discussion, he considered whether a section 8 interpretation may have been able to be applied to the circumstances surrounding the loss of life of Mr Halatau Naitoko, an unfortunate incident which readers may remember from 2009. In brief, police stopped a man named Mr McDonald on a motorway following a long pursuit, at which point Mr McDonald boarded a truck driven by a member of the public. He was seen to brandish a gun by the two officers on the scene, who subsequently fired on him, unfortunately also hitting Mr Naitoko. Professor Juss queried whether the police officers’ actions in using lethal force in this instance could have been considered a deprivation of Mr Naitoko’s right to life under the NZBORA. If so, was this consistent or inconsistent with the principles of fundamental justice under section 8?
The Coroner found that the officers needed further training, but on the whole, the decision to shoot was found to be justified. However, the Independent Police Conduct Authority (IPCA) concluded that what had happened was the result of a “rare set of events”, and was critical of the wider handling of the pursuit on the day, including control over the exercise, poor communication and failed opportunities to earlier contain the offender.
According to Professor Juss, this “wider handling” goes to the heart of the question of whether the deprivation of life was either within or outside the course of law, or (in other words) “consistent with the principles of fundamental justice”. Although ACC laws generally militate against actions for personal injury by accident, Professor Juss contended that (perhaps) this set of circumstances should not be considered an “accident”, due to the less than perfect “wider handling” of the situation.
Professor Juss went on to consider the nature of the concept of “fundamental justice” itself. Is it the same as asking whether something is legal or illegal, or whether or not something is in accordance with “generally accepted standards”? And whose standards should be taken as being generally accepted?
He discussed three conditions which can be helpful in considering the question of whether something offends fundamental justice or not. First, is there a legal provision in place? Second, is there significant societal consensus on the issue? Third, can it be identified with sufficient precision so as to be identifiable as a standard? Answering these questions can be difficult nowadays given the existence of “grey areas” which may not be able to be so neatly classified as in decades past (for example, the question of assisted suicide, which in most countries is legally prohibited but for which many feel sympathy).
Professor Juss queried, if there is no significant societal consensus about a certain matter, will it be conducive to fundamental justice or not? “Fundamental justice does and can mean something we cannot put our finger on at the moment,” he said. “The law ought not to be too exacting regarding the question of consensus.”
Some interesting cases
Professor Juss went on to consider, by way of example, a number of cases from other jurisdictions which go to the nature of “fundamental justice”.
The case of McCann and Ors v. the United Kingdom (Application no. 18984/91) considered the right to life under the European Convention on Human Rights as applied to the deprivation of life of three members of the IRA in 1988. Criticisms were made of the fact that intelligence officers knew the three were in Gibraltar, where they could have been intercepted, and of the nature of their shooting, which was described as being at point blank range and in the style of an “execution”. The European Court of Human Rights found that, although the officers had an honest (though mistaken) belief that the IRA members were about to detonate a bomb, in looking at the entire exercise, the operation had been conducted in a manner which was not in accordance with the provisions of Article 2. In the circumstances, recourse to lethal force was not justified.
The 1998 case of Güleç v. Turkey (54/1997/838/1044) involved a large unauthorised demonstration, during which law enforcement officers opened fire. An innocent 15 year old boy was accidentally hit by a stray bullet and died. The European Court of Human Rights said that when confronted with serious acts of violence, the use of force by police may be justified, but a balance must be struck with the means used to achieve the ends.
The case of Osman v. the United Kingdom (87/1997/871/1083) involved a Turkish schoolboy living in England, who became the object of unwanted attention from a school teacher. Despite attempts to involve the school and police, nothing was done and the teacher ultimately shot the boy’s father. Although the state was “let off the hook” in this case (for reasons such as the unpredictability of human conduct, limited police resources and a disproportionate burden on state authorities), Professor Juss thinks that officers knew (or ought to have known) that there was a risk.
Interaction with tort law
Professor Juss is in favour of interpreting right to life provisions as carrying a positive obligation to protect and promote life, rather than just protecting the right “not” to be deprived of life. He thinks that the New Zealand provision, although cast in negative terms, should similarly be read as creating an obligation to take preventative measures to protect individuals from being deprived of their lives.
Although our ACC laws are somewhat restrictive, Professor Juss thinks they are “meant for a different set of facts”. “ACC prohibits actions for personal injury by accident – but are these cases to be classified as accidents?” he says. “When you look at the wider picture, isn’t it to do with having an unsafe operational system which is flawed, and that this takes you outside of the ACC regime?”
“If one accepts a positive operational duty (whether by acts of commission or omission), then you are looking at something very different from negligence. While tort law focusses on interpersonal justice, bills of rights deal with distributive justice. Tort law would say, ‘was the right balance struck between the interests in question?’ Human rights law would say, ‘did the authorities take their duties seriously?’ Whatever the considerations in tort law, under human rights law, the policy should be to impose an operational duty.”