> I agreed with you up to here but, sorry, you've selectively quoted this
> last bit. Breach of Art.8 has to be "necessary in the interests of ...
> public safety" (I'm discounting any possible effect of the escape on
> national security and economic well-being). If they aren't a threat to
> the safety of the public (and remember that a husband who helped his
> terminally ill wife to die was convicted of murder not so long ago) then
> there are no grounds at all for breaching their Art.8 rights.
Actually, I think it's you who is selectively quoting. ;-)
My point is this.
> Clearly that can be no doubt at all that the capture of an absconding
> prisoner, I would suggest, fulfills the test of necessity
> WHETHER OR NOT THEY HAVE BEEN CLASSIFIED AS A DANGER TO THE PUBLIC
Art 8 is a qualified right. The purposive construction that has to be
applied to the "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 freedoms of others" MUST include the recapturing of offenders who
have broken the law by absconding without having completed their sentence.
It is in the wide interests both of public safety and of the prevention
of crime and disorder, that absconders are caught and returned to their
place of incarceration, even if the individuals are not an imminent
public danger.
I doubt that such a case would ever reach Strasbourg but I would put
money on my interpretation being the true one.
Nigel
PS: (off topic) you also said:
> a husband who helped his terminally ill wife to die was convicted of murder not so long ago
I don't know this case you are referring to, but the precedent on
exactly this subject is R (on the Application of Mrs Dianne Pretty) -v-
Director Of Public Prosecutions & Secretary Of State For The Home
Department [2001] UKHL 61 and the subsequent case of Pretty -v- UK in
Strasbourg (where it was ruled that the Art. 2 right to life did not
include a right to die.)
The questions a judge or criminal lawyer in any other case would almost
certainly be :-
1. Did the husband kill the wife?
2. Did the husband (irrespective of his motive) intend
to kill, (or intend to inflict GBH)?
If both questions are answered in the affirmative, then (according to
Lord Coke, and in line with Pretty) he IS guilty of murder, and would be
sentenced to the mandatory sentence . . .
UNLESS he successfully raised one of the statutory defences of
Provocation or Diminished Responsibility (in which case he would NOT be
convicted of murder, but would be guilty of manslaughter) or Insanity
(in which case he would be not guilty but would be locked up anyway).
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