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You are here: Homepage » Articles » 0514

The Times
September 12 2000

 

Frances Gibb explains the implications of the new legislation

Judges face torrent of human rights claims

 

THE Home Secretary is putting his faith in judges to hold the line against an expected flood of challenges under the Human Rights Act next month. As fears mount that the Act will be a "free for all" for offenders, Jack Straw is promoting it as a vehicle for victims of crime to assert their rights.

In an interview with The Times, he also predicted that courts will be able to impose strict bail conditions, ensuring that people are not at risk from suspects awaiting trial. He said that judges would reject weak claims and take a "robust no-nonsense approach" and added: "They are skilled at recognising what is a sensible point, even when an applicant appears to be eccentric."

They would have a wider discretion under the Act and the profile of the courts would be raised "very significantly".

Judges would exercise their discretion "in the traditions of the British courts and good jurisprudence". He strongly rejected the idea that the Act would be a charter for prisoners and defendants to challenge every aspect of their detention or trial or a "lawyers' gravy train".

The Prison Reform Trust predicts a rush of challenges against the Prison Service under the Act. Mr Straw insists, however, that the Act will equally benefit victims of crime "and the wider community".

One example of this benefit would be in cases of alleged police negligence: "People who feel their case has not been investigated properly by the police may argue . . . [that they have] a right of action against the police."

He went on: "If people feel there is evidence - not that there is, as far as I am aware - that police have not taken the matter as seriously as they should have done, and that amounted to negligence, victims may seek to assert their rights under the Act."

Lawyers have given warning that bail will be harder to refuse under the Act. Mr Straw said that the European Convention on Human Rights did not provide a right to bail, just a right to a presumption of bail. The police would be able to rebut the assumption in a number of circumstances.

"People don't like to be locked up so they come up with a million reasons . . . they did not do it or if they did, it wasn't as bad as the prosecution was claiming and they will try to assert their rights. But one of the things we have got to get back over is that other people have rights too."

The European Court of Human Rights in Strasbourg has ruled that police are not immune from negligence actions in cases where they fail to carry out their duties. In two other cases it has also ruled in favour of victims of crime.

"In no sense is the Convention just to give rights to defendants. They have all the rights accorded under the Convention anyway. The law over the last 20 years in particular has changed to bring our criminal procedures into line with the Convention."

He dismissed the view that the Act would be a "gravy train" for lawyers, although he said that they were "skilled at spotting opportunities".

Lawyers played an important function within society, he said. "They are there to ensure that people receive fairness and rights even if their cause is unpopular or their behaviour has been seriously criminal."

An eccentric lifestyle did not mean that a person did not have human rights, he said. He also disagreed with some legal experts that there would be a "deluge" of court cases. Parliament would remain supreme. The Act would not subordinate it to the courts.

If judges held that a statute was incompatible with the new Act, it was up to Parliament either to amend it or not.

He expected in most cases that it would. "But it is open to the Government of the day to say whether or not the British courts think this bit of legislation is incompatible - we happen to think it important and on balance we would rather it remain on the statute book than not."

In such cases, a citizen could take the Government to the European Court of Human Rights and, if successful, the Government would then be expected to change the law.

Peter Shipley, a spokesman for the Association of Chief Police Officers, said of the Act: "We don't see it as a threat: it presents opportunities for us to look at how we do things."

A spokesman for the Police Federation said: "The Act is going to change so many things about the criminal justice system that it's inevitable that this is a consequence and we accept that. But we think things will settle down over time."

 

The fundamental freedoms

Several other articles to the European Convention on Human Rights have been enacted:

 



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