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EuropeanConventionHandbookForPolice

The use of force in

The use of force in policing Page 25 violation of them. In addition, they require that credible allegations of the use of force by agents of the State be the subject of an effective investigation. (In addition, Article 5 may be of relevance, as the use of force often occurs during an arrest: this issue is considered in the chapter that follows.) The focus here is upon the use of force. One of the most effective methods of acting in compliance with the Convention standards is by ensuring that all credible allegations of violations of improper use of force are subjected to an effective investigation. Effective investigations, carried out by independent authorities, will assist in ensuring compliance with the investigative obligations under Articles 2 and 3 of the Convention (discussed in further detail below). 44 In addition, they will provide reassurance to police officers, who will be able to foresee with a degree of accuracy the standards to which they will be held. Officers will also enjoy increased protection from unfounded or malicious allegations, which should be determined to be without basis by the investigative authorities. The right to life: Article 2, European Convention on Human Rights Article 2 of the Convention protects the right to life. It comprises three main requirements: (i) a prohibition on unlawful killing by State agents; (ii) a duty to investigate suspicious deaths; and (iii) a positive obligation, in certain circumstances, to take steps to prevent an avoidable loss of life. 45 The full text of Article 2 is as follows: 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. 2. 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: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection. 44 See p. 25 (Article 2) and p. 33 (Article 3). 45 Jacobs, White and Ovey, The European Convention on Human Rights, 4 th edition, page 143.

The European Convention on Human Rights and Policing Page 26 Use of lethal force In relation to the use of lethal force, Article 2 imposes a test, which requires that any force deployed by the state must not exceed what is ‘absolutely necessary’. This is a test of strict proportionality, so that the force must be strictly proportionate to the achievement of one of the aims set out in Article 2(2)(a) to (c). 46 Lethal force is defined as: (i) force which is intended to be lethal and which has that effect; (ii) force which results in the death of a person and which could reasonably have been foreseen to have that effect; and (iii) the use of force that results in serious injury to a person, where death could have occurred. Article 2 ‘does not primarily define instances where it is permitted intentionally to kill an individual, but [rather] describes the situations where it is permitted to ‘use force’ which may result, as an unintended outcome, in the deprivation of life’. 47 In other words, the fact that one of the scenarios set out in Article 2(2) (a) to (c) may occur does not mean that lethal force can be used. These are not thresholds that, once met, allow lethal force to be used. Any use of lethal force must be solely for a legitimate purpose. Any other approach would be inconsistent with the requirement that the rights protected by the Convention are real and effective. Lethal or potentially lethal force may only be used for a lawful purpose. In practice, the only lawful purpose, which may justify the use of such force, is where it is absolutely necessary to protect the life of a person, whether the person using the force, or another. ■ In McCann and Others v the United Kingdom, the Strasbourg Court held that ‘Article 2, read as a whole, demonstrates that paragraph 2 does not primarily define instances where it is permitted intentionally to kill an individual, but describes the situations where it is permitted to use force which may result, as an unintended outcome, in the deprivation of life. The use of force, however, must be no greater than ‘absolutely necessary’ for the achievement of one of the purposes set out in that Article.’ 48 It is important to remember that the role of the police is not to punish or otherwise sanction wrongdoing. Police officers, in the course of their duties, may come across individuals who have been engaged in the most reprehensible conduct. However, the role of the police is to investigate crimes and to bring 46 McCann and Others v the United Kingdom, judgment of 27 September 1995 at paragraph 149. 47 Ibid. paragraph 148. 48 McCann and Others v the United Kingdom, judgment of 27 September 1995 at paragraph 148.