Provocation; Objective Test; Precedent
| Author | Damian Warburton |
| DOI | 10.1350/jcla.2006.70.3.203 |
| Published date | 01 June 2006 |
| Date | 01 June 2006 |
| Subject Matter | Court of Appeal |
boundaries of the criminal law, something ordinarily required by Article
7 of the ECHR and most notably discussed in Handyside v United Kingdom
(1979–80) 1 EHRR 737 and Hashman and Harrup vUnited Kingdom
(2000) 30 EHRR 241.
If correct, this could leave the child’s right to respect for private life
barely protected. In Finkensieper vThe Netherlands, Application No.
19525/92, 1995, the European Commission on Human Rights accepted
that anonymity for victims of sexual abuse was an issue which engaged
Article 8 rights. In such circumstances, Article 8 imposes a positive
obligation whereby in certain circumstances the state owes a duty to
safeguard the right to respect the private life of individuals. If s. 39 is not
certain and cannot be used effectively then this is failing vulnerable
victims of abuse.
Further breaches may exist as a result of the permanent nature of this
abuse. The Court of Appeal in R v Beaney [2004] EWCA Crim 449,
[2004] 2 Cr App R (S) 82, (2004) 68 JCL 278–82 accepted that those
victims portrayed in indecent images of children suffer psychological
harm through the dissemination of the photographs, such harm con-
tinuing throughout their life. The European Court of Human Rights has
held that the right to respect for private life includes ‘a person’s physical
and psychological integrity’ (Botta vItaly (1988) 26 EHRR 241 at para.
32) and this would seem to be compromised in a situation such as that
in the present case. More than this, however, Article 3 provides for inter
alia the freedom from inhuman or degrading treatment and the Euro-
pean Court of Human Rights has accepted that, subject to the necessary
threshold being met, psychological injury resulting from a crime can
constitute a breach of Article 3 (see inter alia Z vUnited Kingdom (2002)
34 EHRR 3). As is well known, Article 3 contains a positive obligation
and accordingly this may necessitate a review of the issues relating to the
anonymity of victims portrayed in abusive images, in order to reduce
any psychological distress caused by subsequent identification.
Vanessa Bettinson and Alisdair A. Gillespie
Provocation; Objective Test; Precedent
R vJames; R vKarimi [2006] EWCA Crim 14
These conjoined appeals were brought as a result of referrals to the
Court of Appeal by the Criminal Cases Review Commission (CCRC)
following the recent changes in the law of provocation.
The appellant in James was convicted of the murder of his wife at
Nottingham Crown Court in 1980. The circumstances were that the
marriage was not a happy one, and in fact the two had separated some
five months or so before the killing. Mrs James had begun a relationship
with another man, N, and in those five months the police were called on
Provocation; Objective Test; Precedent
203
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