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									IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND QUEEN’S BENCH DIVISION (CROWN SIDE) IN THE MATTER OF AN APPLICATION BY FREDDIE SCAPPATICCI FOR LEAVE TO APPLY FOR JUDICIAL REVIEW OF A DECISION OF THE MINISTER FOR SECURITY

WRITTEN SUBMISSIONS BY THE PROPOSED INTERVENOR THE NORTHERN IRELAND HUMAN RIGHTS COMMISSION

1.

These submissions set out the views of the Northern Ireland Human Rights Commission (NIHRC) on the obligations imposed by Article 2 ECHR on the Government of the United Kingdom in the unique set of circumstances presented by the case of Mr Freddie Scappaticci. As the court will be aware, such intervention is expressly permitted now pursuant to the House of Lords decision in the case of Re: Northern Ireland Human Rights Commission 2002 NI 236. Such intervention most recently arose in the English case of The Queen on the application of Imtiaz Amin -v- Secretary of State for the Home Department which came before the House of Lords on 15 July 2003.

2.

(i)

The NIHRC would wish to reaffirm the precedence given to the right to life in the Convention, which precedence is emphasised by the inability of states to derogate from it under Article 15 (1), except as regards deaths resulting from lawful acts of war (Article 15 (2)). Interestingly, the Article itself does not allow of any exceptions to it apart from the three specific instances enunciated in Article 2 (2) or if resulting from a lawful court sentence. This is in sharp and significant contrast to Article 8 dealing with the right to respect for private and family life, which lists several vague and rather broad areas of exception, one of them being national security.

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(ii)

Relevant comment on when an issue like national security, that does not expressly appear as a possible exception, might hold sway over a right like the one to life, is found in the case of Chassagnou –v- France (1999) 29 EHRR 615 at paragraph 113. The court, after discussing the balancing of individual interests that may well be contradictory, concluded that contracting states must have a broad margin of appreciation in this respect, since the national authorities are in principle better placed than the European Court to assess whether or not there is a “pressing social need” capable of justifying interference with one of the rights guaranteed by the Convention. However, the court goes on to state:

“ It is a different matter where restrictions are imposed on a right or freedom guaranteed by the Convention in order to protect “rights and freedoms” not, as such, enunciated therein. In such a case only indisputable imperatives can justify interference with enjoyment of a Convention right. ”

(iii)

Of further significance is the textual nuance between this right and others; Article 2 does not purport to establish the right (cf. the usual formula „everyone has the right to...) but rather requires its protection by law.

3.

The fundamental nature of Article 2 and the need for strict construction are repeated and emphasised throughout the case law of the European Court of Human Rights, but most memorably perhaps in the case of McCann -v- U.K. (1995) Series A, No. 324; 21 EHRR 97, concerning the shooting in Gibraltar of IRA members.

4.

(i)

The NIHRC would wish to highlight that the court in the McCann case also emphasised that the Convention‟s safeguards must be practical and effective. At paragraph 146 the Court states:

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“ The court‟s approach to the interpretation of Article 2 must be guided by the fact that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective.”

(ii)

This latter principle is echoed in the recent House of Lords decision in R -v- Shayler [2002] 2 All ER 477. Lord Hope at paragraph 75 referred to the greater intensity of review available under the proportionality approach to issues touching upon alleged breaches of Convention rights:

“ A close and penetrating examination of the factual justification for the restriction is needed if the fundamental rights enshrined in the Convention are to remain practical and effective for everyone who wishes to exercise them. ”

5.

(i)

The NIHRC submits that Article 2(1) does not stop short at enjoining the state to refrain from the intentional and unlawful taking of life; it also demands that the state take appropriate steps to safeguard the lives of those within its jurisdiction, which obligation the NIHRC feels should be emphasised in the case at hand cf. Mahmut Kaya -v- Turkey (28

March 2000), ECtHR. At paragraph 85 the court states: “....Article 2 (1) 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. This involves a primary duty on the State to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. It also extends in appropriate circumstances to a positive obligation on the authorities to take preventative operational measures to protect an individual or individuals whose life is at risk from the criminal acts of another individual.”

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(ii)

The same point is made in the case of LCB -v- UK (1998) 27 EHRR 212 at paragraph 36. The court goes on then to question whether in all the circumstances of the case the state “did all that could have been required of it to prevent the applicant‟s life from being avoidably put at risk”.

(iii)

As part of its determination, this honourable court may wish to consider whether the state has done all that could have been required of it to prevent the applicant‟s life from being avoidably put at risk.

6.

(i)

The NIHRC would wish to emphasise the fact that Article 2 can be seen to place quite an extensive obligation on states. In the case of Keenan -v- UK (App No 27229/95, 22 June 1998), the Commission indicated that this can extend to obliging the state to take reasonable steps to prevent deaths in custody that are actually self-inflicted. From a neutral standpoint, one might have thought that a self-inflicted death is beyond the purview of a state‟s responsibility, but instead the primacy attaching to Article 2 is such that the state can be seen to be obliged to take responsibility for averting possible deaths even of this rather unusual nature. The NIHRC is also aware that the remit of the state‟s obligation under Article 2 is not limitless however. The obligation does not impose an impossible or disproportionate burden on the authorities cf. Mahmut Kaya -v- Turkey at paragraph 85 citing the case of Osman -v- UK (1998) 29 EHRR 245. In the case at hand, the court may therefore feel it appropriate to consider whether or not the obligation that Mr Scappaticci seeks to place upon the Minister is in some way impossible or disproportionate.

(ii)

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In weighing up these considerations, the court may further wish to pay particular regard to the fact that Mr Scappatticci through his solicitor and through his affidavit expressly discounts any desire that the real „Stake Knife / Steak Knife‟ be named and that he is merely seeking a public denial from the most appropriate person to comment on the matter, viz., the Minister for Security, that he is the special agent codenamed „Stake Knife / Steak Knife‟.

7.

The NIHRC feels that the principle of viewing each case in its own set of circumstances, which finds expression in European Human Rights case law, is an important factor for the court to consider in the case at hand. The principle is emphasised by the European Court of Human Rights in many cases where Article 2 is at issue, cf. Ogur -v- Turkey No 21594 and Velikova -v- Bulgaria No 41488/98.

8.

(i)

The wider international arena provides some useful commentary on the issue of when national security might be raised as a basis for failing to answer the type of question at issue in this case. At the outset, the NIHRC would wish to reiterate that the principle of the sanctity of human life finds expression in all civilised societies in the world and in international human rights instruments such as the Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (1966) and the American Convention on Human Rights (1969).

(ii)

The Northern Ireland Court of Appeal decision in David Adams [2001] NICA 2, makes a useful point that a decision maker such as the Minister, whilst not being obliged to consider international documents, does at least have the power to resort to international standards for guidance. Thus, it is submitted that it would be proper, as part of any intervention, to refer to such documents.

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(iii)

The International Covenant on Civil and Political Rights „ICCPR‟ has its own mechanism for adjudicating upon alleged breaches of its provisions. The United Kingdom‟s failure to ratify the Optional Protocol granting the individual the right of petition to the Human Rights Committee has stultified any real influence in this jurisdiction, but as an interpretative guide it is nonetheless useful. National security is referred to in Articles 12, 13, 14, 19, 21 and 22 of the Covenant. Significantly, none of those provisions touch upon the fundamental right to life. The right to life is enshrined in Article 6 and by Article 4 (2) no derogation from it is permitted even in times of public emergency. This strong latter sentiment is also expressed in Article 27 of the American Convention on Human Rights.

(iv)

The drafters of the ICCPR noted the importance of narrowing the scope of national security exceptions. The dangers associated with not doing so were eloquently expressed in the following terms:

“ If limitations were not clearly defined, but couched in general terms, there was little guarantee that rights would not be violated....In the name of „public order‟ many a saintly character has been crucified, in the name of „national security‟ many a patriot guillotined.” 10 IN GAOR Annexes (Agenda item 28) p.9, UN Doc, A/2929 (1955).

(v)

Of equal interest in this instance is the fact that paragraph 1 of the Siracusa Principles on the Limitation and Derogation Provisions of the ICCPR, (these principles being the result of high level international human rights conference in 1984), dealing with general interpretative principles relating to the justification limitations reads:

“ 1. No limitations or grounds for applying them to rights guaranteed by the Covenant are permitted other than those contained in the terms of the Covenant itself. ”

Significantly, national security does not appear in the Convention as a
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basis for derogation from the right to life. National Security is specifically dealt with at paragraphs 29 – 32:

(vi)

“ 29. National security may be invoked to justify measures limiting certain rights only when they are taken to protect the existence of the nation, its territorial integrity or political independence against force or threat of force.

30. National security cannot be invoked as a reason for imposing limitations to prevent merely local or relatively isolated threats to law and order.

31. National security cannot be used as a pretext for imposing vague or arbitrary limitations and may only be invoked when there exist adequate safeguards and effective remedies against abuse.

32. The systematic violation of human rights undermines national security and may jeopardise international peace and security. A State responsible for such violation shall not invoke national security as a justification for measures aimed at suppressing opposition to such violation or at perpetrating repressive practices against its population.”

(vii)

The NIHRC submits that paragraphs 29 and 31 are of particular interest. Paragraph 29 provides a useful definition of what national security actually means. The court may wish to consider whether any of the national security reasons enunciated in this document would particularly apply: Would the existence of the nation, its territorial integrity or political independence against force or threat of force be

jeopardised by a Ministerial denial that Mr Scappaticci is the secret agent in question ?

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(viii)

The NIHRC submits that paragraph 31 also provides guidance useful in this case as it points out that national security cannot be wielded arbitrarily or vaguely to limit rights.

(ix)

The Siracusa principles, at paragraphs 58 and 69, then place the right to life, inter alia, on the highest pedestal:

“ 58. No State party shall, even in time of emergency threatening the life of the nation, derogate from the Covenant's guarantees of the right to life; ......... These rights are not derogable under any conditions even for the asserted purpose of preserving the life of the nation.

69. No State, including those that are not parties to the Covenant, may suspend or violate, even in times of public emergency: The right to life; ...... ”

(x)

As can be seen, the right to life is enshrined and placed in an inviolable position by these principles and the ICCPR, even in the event of a public emergency. Whilst of persuasive value only in the case of Mr Scappaticci, the NIHRC feels that these are factors that the court may find of assistance in reaching a determination in the case of Mr Scappaticci.

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9.

Consonantly with its role as intervener the NIHRC:

(i)

hopes to afford such further assistance in oral submissions as the case requires, and,

(ii)

offers no submissions on the disposition of this case insofar as this turns on the resolution of disputed facts but prays that the principles supported by the NIHRC may find expression in the decision of this honourable court. Signature of intervener:

________________________________ Brice Dickson Northern Ireland Human Rights Commission Temple Court 39 North Street Belfast, BT1 1NA

Counsel: Andrew Moriarty BL Instructed by: Northern Ireland Human Rights Commission and J G O‟Hare & Co. Solicitors of 37-41 High Street, Belfast, BT1 2AB

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IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND QUEEN’S BENCH DIVISION (CROWN SIDE) IN THE MATTER OF AN APPLICATION BY FREDDIE SCAPPATICCI FOR LEAVE TO APPLY FOR JUDICIAL REVIEW OF A DECISION OF THE MINISTER FOR SECURITY

WRITTEN SUBMISSIONS BY THE PROPOSED INTERVENOR THE NORTHERN IRELAND HUMAN RIGHTS COMMISSION

LIST OF AUTHORITIES 1. 2. Re: Northern Ireland Human Rights Commission 2002 NI 236 The Queen on the application of Imtiaz Amin -v- Secretary of State for the Home Department (This case came before the House of Lords on 15 July 2003 and a decision is awaited). Article 2 ECHR: “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. 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 the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” 4. Article 8 ECHR: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others. ”

3.

2.

2.

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5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18.

Chassagnou –v- France (1999) 29 EHRR 615 McCann -v- United Kingdom (1995) Series A, No. 324; 21 EHRR 97 R -v- Shayler [2002] 2 All ER 477 Mahmut Kaya -v- Turkey (28 March 2000), ECtHR LCB -v- United Kingdom (1998) 27 EHRR 212 Keenan -v- United Kingdom (App No 27229/95 22 June 1998) Osman -v- United Kingdom (1998) 29 EHRR 245 Ogur -v- Turkey No 21594 Velikova -v- Bulgaria No. 41488/98 Universal Declaration of Human Rights (1948) David Adams [2001] NICA 2 (19/01/01) International Covenant on Civil and Political Rights (ICCPR) (1966) 10 IN GAOR Annexes (Agenda item 28) p.9, UN Doc, A/2929 (1955) Siracusa Principles on the Limitation and Derogation Provisions of the ICCPR Annex, UN Doc E/CN.4/1985/4 (1985). American Convention on Human Rights (1969)

19.

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