It’s a bleak Raabian vision of an apocalyptic post-ECHR world in which gangsters are able to murder one another, scattering their rivals’ bodies around Britain’s cities while the police ignore them because they have better things to do. And apparently, the UK Justice Secretary is all in favour of it.
Here’s Dominic Raab’s logic: the European Convention on Human Rights requires states to protect their citizens’ right to life (Article 2). The European Court of Human Rights in Strasbourg has ruled this requires, in some circumstances, proactive actions by state agents such as the police. British police are therefore running around to gangsters’ houses bearing warnings that other gangsters are planning to off them. Raab wants to spare the police this job so they can concentrate on rapes (an unfortunate choice on Raab’s part: there is also ECHR law on police not properly investigating rape – the John Worboys case: see below.)
Raab explained all this on Radio 4’s Today programme on 22 June, the day he was introducing his “British Bill of Rights bill” (sic) to the House of Commons. He pointed to a 1998 ECHR case, Osman v UK, in which Ali Osman was shot dead and his son wounded. They weren’t gangsters, nor was the killer, who was a teacher with a disturbing fascination for the boy. The police had been made aware of “a series of clear warning signs” of the killer’s intention. The court was told no further attempt was made to find the man after an attempted arrest failed and he disappered – only to emerge and shoot Osman and his son.
In fact the court did not find the police had breached the Article 2 right to life provision since the police “lacked at relevant times the required standard of suspicion to use those powers [of arrest] or that any action taken would in fact have produced concrete results”. But it did affirm (at 115) that Art 2 “enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction”. The state should be proactive to prevent loss of life.
Hence, apparently, the tip-offs to gangsters in the form of “Osman letters” to potential victims when there is not enough evidence to arrest the potential perpetrator. So Raab put his spin on the Osman case. Noting that police had finite resources he said:
“the research we have produced shows that the Osman ruling which requires them [police] to universally, consistently and without being able to judge their own resources and own capacity on the front line, was meaning that they were tiping off gangsters of threats to each other; fine if that’s their policy operational professional judgment – as a result of which resources weren’t going into other areas protecting the law-abiding public for example in dealing with rape cases coming forward”.
This is, in fact, nonsense, and one suspects every word of it is nonsense. Certainly “universally, consistently and without being able to judge their own resources and own capacity on the front line” is wholly untrue. It’s all just a bee in Raab’s bonnet that he launched in 2016 (if bees can be launched) in the Parliamentary magazine The House (picked up by the Sun: barmy Euro judges etc) , claiming Osman was an example of “human rights being turned into an obligation” and saying he had discovered that as a result Greater Manchester police “have to give tip-offs and notify gangsters who are fighting each other”. He told The House:
“That absorbs a huge amount of their time. Now I’m not saying you should let gangsters fight it out, but I don’t see why police resources – and this was the evidence we heard – should be displaced giving threat to life notices and tipping off gangsters who are engaged in gang warfare with each other, when I would like to see that taxpayers’ money and police focus on dealing with and prioritising threats to innocent, law-abiding citizens.”
Well, he sort of is saying you should let gangsters fight it out. If he is suggesting police shouldn’t prevent their murders, then those murders should go ahead. And the nonsense of that is that once a murder has occurred, the police are duty-bound to investigate it. And that has resource implications that far outweigh those of preventing the murder with a standard letter to the potential victim saying “We are in possession of intelligence that suggests your life is in immediate danger …”.
Legal position
We don’t know if Raab’s “research” extended to checking with Manchester police whether they considered their action was an “obligation” imposed on them by the ECHR or a sensible operational decision: saving lives, mitigating brutal gang wars – and possibly freeing up time and cash for other cases.
But Raab’s nonsense is also legally nonsensical. Because the Osman decision is not “human rights being turned into an obligation” as he suggests. The judges did say that “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”. But they added: “This is a question which can only be answered in the light of all the circumstances of any particular case.” Furthermore:
“Bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising.” [Osman 116]
So the word “obligation” is used – but it is clear it is not, as it were, a compulsory obligation. The police can make operational decisions, they can look at resources – but they must also seriously consider the right to life of the people for whom they have responsibilities.
So if they have good intelligence that someone is to be murdered (not always a gangster, after all) it would be good policy to prevent that threat to life with a warning – and very bad policy, actionable under the ECHR, to ignore it (even if it is a gangster, since there is no defence of: “It wasn’t a life worth saving, m’lud”).
Raab’s plan
So how does the “Bill of Rights” bill deal with such alleged obligations? It’s there in clause 5. In interpreting a Convention obligation, a British court “must give great weight to the need to avoid applying an interpretation that would …
b) conflict with or otherwise undermine the public interest in allowing
public authorities to use their own expertise when deciding how to allocate the financial and other resources available to them, including
in particular the professional judgment of those involved in operational matters”.
What does that mean? Who knows? The notion of “great weight” or “greatest possible weight” (presumably a few notches above “great weight”) is bandied about throughout the “Bill of Rights” bill – basically as an indicator of particularly buzzy bees in Raab’s bonnet: minimising compensation for human rights breaches, freedom of speech, parliamentary sovereignty, not releasing prisoners. Presumably judges faced with a real world situation and the Osman decision won’t be spending too much time dancing on pin heads to establish precisely what was in Raab’s mind when he introduced “great weight” into his bill.
But it is an attempt to stymie right to life cases, to reduce the duty on the police to prevent deaths. And Raab’s principle of allowing police more discretion is a loophole sewn into the “Bill of Rights” that affects other cases to, particularly when ineffective investigations breach victims’ human rights, such as in the Worboys rape case (below).
Raab is to the ECHR what Boris Johnson is to the European Union. Both spent years making up stories, retailing dodgy factoids, building a picture of something failing and absurd. They both needed eye-catching but fake stories to get everyone annoyed. Given the opportunity, like Johnson, Raab will simply whip out his own bendy banana.
Twitter: alrich0660
Note on rape and Worboys
Raab’s mention of rape as the sort of crime police should be pursuing instead of saving gangsters’ lives is paradoxical/hypocritical in the extreme. Two early victims of the “black-cab rapist” John Worboys brought a successful human rights claim against the Metropolitan police for failure to carry out an effective investigation (leading to their suffering inhuman or degrading treatment under article 3 of the European convention). The UK Supreme Court concluded the police have a positive operational duty to investigate certain serious crimes effectively.
“Carrying out police investigations efficiently should not give rise to a diversion of resources. On the contrary, it should lead to more effective investigation of crime, the enhancement of standards and the saving of resources. There is no reason to suppose that the existence of a right under article 3 to call to account egregious errors on the part of the police in the investigation of serious crime would do other than act as an incentive to avoid those errors and to deter, indeed eliminate, the making of such grievous mistakes.” [Kerr, 71]
Presumably Dominic Raab doesn’t agree.
Read the Met’s failed appeal to the Supreme Court The Commissioner of Police for the Metropoli v DSD, NBV here.
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