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Home Articles posted by Stevie Martin

The Charlie Gard Case: Behind the Hyperbole

Published on July 21, 2017        Author: 

This post is intended to be both a reply to Jakob Cornides’s post on the judgment of the European Court of Human Rights (‘ECtHR’) in the case of Charlie Gard and, relatedly, to provide clarification on several points raised in that post (and pervading content elsewhere) regarding the nature of the decisions confronting both the domestic courts and the ECtHR.

There is no need to repeat the facts underpinning Charlie’s case. They have been canvassed in considerable detail in the judgments of the English High Court and the European Court of Human Rights (ECtHR). It is incontrovertible that Charlie suffers from a life-threatening illness which, at this stage, requires that he be ventilated and receive artificial nutrition and hydration to survive. The available medical evidence (which Charlie’s parents dispute) indicates that he is not responsive to his surrounds. Despite declarations being made by the High Court to the effect that maintaining life-sustaining treatment is not in Charlie’s best interests nor is proposed experimental treatment, and those declarations being upheld on appeal to the UK Supreme Court, the matter persists with experts meeting this week to discuss the medical evidence.

It is beyond the scope of this post to address each of the aspects of the reasoning (and practice) of the domestic courts and the ECtHR which Mr Cornides’s post flags as being extremely problematic in the depth they deserve. Instead, I will respond to three specific issues raised by Mr Cornides, issues which together I consider reflect a wider misunderstanding of the domestic law which has been repeated by various media outlets, and which are central to the broader discussion regarding assisted dying in the United Kingdom (particularly within the context of the European Convention on Human Rights (‘ECHR’)). Those issues are: Read the rest of this entry…

 

The role of legitimacy and proportionality in the (supposedly absolute) prohibition on inhuman and degrading treatment: the United Kingdom’s High Court decisions in DD v Secretary of State

Published on December 22, 2015        Author: 

In the United Kingdom High Court (Administrative) decision of DD v Secretary of State for Home Department [2014] (‘DD’) Ouseley J was required to consider, on a preliminary basis, whether the imposition of a Terrorism Prevention and Investigation Measure (‘TPIM’) (the successor of control orders) had violated the appellant’s right to freedom from inhuman or degrading treatment under article 3 of the European Convention on Human Rights (‘ECHR’). The decision, and the subsequent appeal decision of Collins J (DD v Secretary of State for Home Department [2015] (‘DD (No 2)’), is significant for what it says about the role of the legitimacy and proportionality of measures when considering whether they are inhuman or degrading. More specifically, the first instance decision of Ouseley J appears to impermissibly balance ill-treatment against national security interests. In addition to this ostensible and impermissible conflation, both decisions rely on the European Court of Human Rights (‘ECtHR’) jurisprudence to support various findings without properly engaging with the very significant differences between such decisions and the facts of the instant case (especially the difference between detention following conviction and the imposing of TPIMs on individuals based on various degrees of ‘belief’ held by the Secretary of State). Similarly, neither decision considers the potential impact of the principle, regularly restated by the ECtHR, that the alleged conduct of an individual is irrelevant to a consideration of whether article 3 has been violated.

Read the rest of this entry…