Positive obligations and the ECHR

In February 2023, former Metropolitan police officer David Carrick was sentenced to 36 life sentences for his campaign of terror and sexual assaults against women. His is just one of many examples of violence against women and girls (VAWG), an issue brought into even sharper focus with the publication of the National Police Chief’s Council (NPCC) assessment of police performance. The assessment found that between October 2021 and March 2022, a staggering 507,827 VAWG crimes were recorded. But the government's plans to weaken positive obligations under the European Convention on Human Rights (ECHR) threaten an effective tool for bringing perpetrators of sex-based violence to justice.

Before the Human Rights Act 1998 (HRA), victims of gendered violence had no access to remedies in the UK courts for breaches of the ECHR. Article 1 of the ECHR imposes a positive obligation on the UK to secure the rights and freedoms in the convention. In the context of VAWG, Articles 2 (right to life) and 3 (freedom from torture, inhuman, or degrading treatment) have been an especially important tool in combating gendered violence.

Positive obligations amount to an operational and investigative duty on public authorities. The case of Osman, where the European Court of Human Rights (ECtHR) held that public authorities have a duty to prevent loss of life in certain circumstances, led to the development of ‘threat to life’ notices in the UK. These place a duty on the police to take steps to safeguard lives that they know or ought to have known were at risk. In 2019, 770 threat to life notices were issued and have been instrumental in saving women’s lives in the context of domestic violence. They have assisted a woman to find alternative housing for her and her children to protect them from her violent partner and have been particularly helpful to women at risk of ‘honour’-based violence. Positive obligations also provided a domestic remedy to the victims of the notorious John Worboys, the so-called ‘black cab rapist’, who is believed to have attacked over 100 women. In DSD v Commissioner of Police of the Metropolis, the Supreme Court found that the women’s rights under Article 3 were violated because of the police’s systemically flawed investigation into Worboys’ crimes.

Despite these major wins for women and girls, the government's Bill of Rights Bill - introduced in June 2022 - tries to limit the strength of positive obligations. For example, it bans judges from recognising any new positive obligations and makes it harder for women and girls to enforce existing obligations against public authorities - including the police - which have failed them. Although the bill appears to have been shelved, both the home secretary and the prime minister have publicly expressed their discontent with the ECHR and its effect on domestic legislation.

The common law will not provide an alternative remedy as, traditionally, common law constitutional rights do not impose positive obligations. A series of Supreme Court decisions confirm that public authorities do not generally have a common law duty to act. In Michael v Chief Constable of South Wales, the police were not liable for failing to safeguard Ms Michael’s life following her ex-boyfriend’s threat to kill.

Announcing a series of new measures against domestic abuse in February 2023, prime minister Rishi Sunak said that ‘No woman or girl should ever have to feel unsafe in her home or community’. Although the government’s commitment to ensure the survivors of gender-based violence can seek justice are commendable, their proposals concentrate power almost exclusively in the hands of the police. For example, their measures include tougher offender management, piloting new civil orders against offenders, and adding VAWG to the strategic policing requirement.

By contrast, positive obligations give specific rights to women and girls which can be actively enforced in court, including against the police when they fail to use their powers effectively. For example, the NPCC data revealed that 1539 police officers were subjects of allegations of VAWG during October 2021 to March 2022. Moreover, as revealed in DSD, the existence of a legal framework is insufficient if the police are not making operational decisions to enforce it. At the time of Worboys’ attacks, guidance on identifying victims of drug-facilitated sexual assaults existed, but police officers had not received any training on it. Worboys’ victim DSD was initially treated as a drunk, not as a victim of crime. Shockingly, Worboys himself took DSD to the station and was treated as a ‘model citizen’. These examples showcase how important it is to deploy all legal tools available to improve outcomes for victims of violence.

Finally, positive obligations are an opportunity to ensure more holistic protection for women and provide better protection against the fallibility of individuals who are inexperienced, untrained, or themselves perpetrators of violence against women. States should also be under an obligation to take measures to protect women from future violence, by providing access to shelters and legal, medical, or psychosocial help. The Domestic Abuse Commissioner’s 2022 findings on provision for victims of abuse in the UK were concerning – fewer than half of the victims and survivors interviewed were able to access community-based support. The government has the wrong priorities when it comes to protecting women and girls. Instead of further empowering ineffective police forces, the government's focus should be on empowering women and girls and promoting an environment where violence against them is much less likely. Positive obligations have proved effective at doing this and the government should defend them.

Ilinca Tuvene is a casework paralegal at Public Law Project

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