The Human Rights Act, ensuring safety from domestic violence

By Natalie Threlfall (BIHR) and Tina Reece (Welsh Women's Aid)
 

Joanna Michael's Case

On the 5 August 2009, Joanna Michael from Cardiff called 999 and told the call handler her ex-boyfriend had been to her house and hit her. He left, threatening to come back and kill her. The call operator mistakenly heard that he had threatened to ‘hit’ her. Because the call had gone through to the wrong police service initially, when it was passed to South Wales Police, they did not get the full story and they did not grade the call as immediately urgent. By the time the police arrived at Joanna’s house, she was dead.

Unfortunately, the circumstances of Joanna’s death are not unusual. Two women a week on average are murdered by their partner or former partner. But it has never been so obvious as it was in Joanna’s case that the police could do more. Joanna’s family, with the support of Welsh Women’s Aid, went to court and argued that the police had been negligent in failing to respond to her 999 call, and that their failure had breached Joanna’s right to life under Article 2 of the Human Rights Act.

Why it's the Human Rights Act that makes accountability possible

Negligence actions against the police traditionally do not succeed in English and Welsh law. This case was no different – the Supreme Court did not allow the argument that the police had been negligent because it would leave the police open to claims from everybody who calls 999 and would make policing more difficult. One of the judges, Lady Hale disagreed. She hoped that finding liability in negligence would lead to “much-needed improvements in their response to threats of serious domestic abuse”.

Although the negligence action was not successful, the Court allowed the claim to proceed on the human rights grounds. This is because, under the Human Rights Act, the police owed Joanna a positive duty to protect her life (Article 2). Whether or not they had breached that duty was a question of fact and should proceed to trial.

Why is this so important?

Speaking about the case, Eleri Butler, CEO of Welsh Women’s Aid says:

Where there are failings in protecting victims of domestic violence, accountability is crucial. Violence against women is a fundamental violation of women’s human rights and the Supreme Court’s judgment provides timely reaffirmation of the importance of human rights protections for victims of domestic violence. The Human Rights Act has a vital role to play in this.  If it was not for the Human Rights Act, the family of Joanna Michael would have no prospect of obtaining accountability for Joanna’s death.

This case makes it clear that domestic violence is a human rights issue. The highest court in our land has made it clear that the police have a legal duty to victims of domestic violence to take steps to protect when a woman’s right to life is at risk. When Joanna’s case goes to trial the judge will decide whether or not the police did all they could reasonably do to protect Joanna’s life.

The Human Rights Act made it possible for Joanna’s family to directly challenge actions of the police that may have led to her death. If the police did breach Joanna’s right to life then South Wales Police, and police forces across Britain, will have to take steps to ensure victims of domestic violence are not failed in the same way ever again.

Preventing violence against women in Wales

The Joanna Michael case put domestic violence on the agenda in Wales. On Tuesday 10 March, the Welsh Assembly will hear the Stage 4 debate of the Violence Against Women (Wales) Bill. If made law; this Bill would secure vital protections for women and girls in Wales, including a whole school approach to education on violence against women in schools. The Bill passing is not a sure thing, so Welsh Women’s Aid are asking you to show your support by tweeting #cantlosethebill and helping to ensure that domestic violence is stopped before it can start. Find out more about the Bill here.

Protecting the human rights of women in the UK

With domestic violence squarely on the human rights agenda, on International Women’s Day we can reflect on the ways the Human Rights Act protects the rights of women here in the UK. Along with victims of domestic violence, the Human Rights Act has held the police to account for failing victims of rape. No other piece of law can protect women’s rights the same way. The Joanna Michael case shows that if it is a question of police negligence, the common law will not hold the police to account for failings.

Not only does the Human Rights Act allow us to hold public authorities to account, it is also a tool for ensuring that services are delivered in a way that respects rights in the first place. All public authorities must deliver services and make decisions in a way that respects human rights. Now that this case has made sure that failings towards victims of domestic violence are seen as a human rights issue, the police and public authorities will need to examine their services and ensure that these failings do not happen again. BIHR’s work helping public services to embed human rights in their work shows that this is achievable and leads to better outcomes for services and service users in the long term. Read more about the people whose lives have changed through our work on the Human Rights Act.

Speaking up for human rights at home 

If you think human rights are worth respecting and protecting, consider joining in with March For Human Rights, BIHR’s month of activities helping people to speak up. Check out our mini-site and tweet us a selfie with the hashtag #ImAlrightWithHumanRights, letting us know why you are alright with human rights, especially this International Women’s Day.