Case Nos: CA-2024-002167 - [2025] EWCA Civ 1230

Both Appeals: Did XGY Meet The Section 7 Criterion?

Section 7 of the HRA provides:

“(1)

A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—

(a)

bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b)

rely on the Convention right or rights concerned in any legal proceedings,

but only if he is (or would be) a victim of the unlawful act…

(7)

For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act.”

It is common ground that, for the purposes of Articles 2 and 3, XGY needed to demonstrate that she was, at the material time of 16 April 2020, at “real and immediate risk” of death (Article 2) or mistreatment amounting to at least the seriousness of an assault occasioning actual bodily harm (Article 3). Real means “objectively well-founded” or “objectively verified”: see Re Officer L [2007] UK HL 36 at [20]; “immediate” means “present and continuing”: see Rabone v Pennine Care NHS Trust [2012] UKSC 2. Thus a real risk which is no longer continuing is insufficient. As explained in Osman v United Kingdom (1998) 29 EHRR 245 (“Osman”) at [116], it must be established to the court’s satisfaction that the authorities knew or ought to have known at the time of the existence of the real and immediate risk in question.

The test was described as “stringent” in Re Officer L. In Van Colle v Chief Constable of Hertfordshire Constabulary [2009] 1 AC 225 (“Van Colle”) the test, derived from Osman, was described as a “very high threshold” [69].

If XGY fails to meet the criterion in section 7 in respect of the claims under Articles 2 and 3, then the Article 8 claim can add nothing: see CLG at [39].