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Published: Fri, 02 Feb 2018

Human Rights Act On Criminal Justice System

With a view to critically evaluating the Human Rights Act (HRA) 1998’s impact upon the criminal justice system, this essay will begin by first looking to provide a critical evaluation of the justifications for the reform selected in Section A before then providing a critical evaluation of its success in meeting its alleged objectives in Section B. As part of this process it will, therefore, be necessary to provide a discussion of the background to the enactment of the HRA 1998 and its objectives in this regard with a view to enhancing the system of criminal justice that has developed in this country. In addition, there will also be a need to look to evaluate as to how the HRA 1998 has impacted upon the criminal justice system in practice through consideration of as to how the courts have looked to apply the law in this regard. Finally, this essay will look to conclude with a summary of the key points derived from this discussion in relation to the impact of the Human Rights Act 1998 via Article 6’s right to a fair trial upon the criminal justice system.

Section A

In seeking to provide a critical evaluation of the justifications for the reform selected it is interesting to first consider the background to the HRA 1998 as a key driving element upon which it was possible for the Labour political part to come to government in the UK (McIntosh, 1999). Therefore, once it had been enacted and fully implemented, the HRA 1998 was a prominent foundation upon which a culture of human rights culture was built with a view to then having a significant effect upon the criminal justice system domestically (McIntosh, 1999). This is because the enactment of the European Convention on Human Rights (ECHR) 1950 via the HRA 1998 domestically has conferred a large number of important rights upon the nation’s people including the rights to liberty. However, prior to the HRA 1998’s enactment the ECHR 1950 was not considered to be relevant specifically to the interpretation of legislation implemented. The reason for this is that it was recognised that it was not possible for it to stand as being a source of obligations or rights in the criminal justice system and, except where legislation was in an area of ambiguity, then it was not possible for it to be utilised with a view to interpreting legislation (R (Khail) v. Home Secretary). Nevertheless, the HRA 1998 has served to in some way validate the rights that are included in the ECHR 1950 so they can be enforced in our domestic courts instead of solely through the exercise of the right of an individual petition to the Strasbourg Court. Therefore, in determining questions as to the ECHR 1950, the domestic courts can consider the Strasbourg court’s case law – although the HRA 1998 provides at section 2 that the domestic courts are not bound to follow it (The Right Honourable Justice Arden DBE, 2004).

Parliamentary sovereignty is preserved so that the courts are unable to simply strike down statutes that infringe the recognition of rights under the ECHR 1950. That this is the case is based on the fact that it has come to be appreciated that if the courts had this power their interpretation of the law and of what was incompatible with the ECHR 1950 would always prevail in the circumstances. On this basis, instead of giving the domestic courts power to strike down statutes, two different techniques are employed – (a) the HRA 1998 at section 3 has served to provide for the imposition of an obligation for the judiciary to look to interpret legislation implemented domestically through the courts in a way that is considered compatibly with the ECHR 1950 (Culnane v. Morris); along with (b) the declaration of incompatibility where it is not possible for the judiciary via their work through the courts to evaluate a piece of domestic legislation in a way that is deemed to be compatible with the ECHR 1950 it is possible for this kind of declaration to then be made (R (Carson) v. Secretary of State for Work & Pensions). Nevertheless, the HRA 1998 leaves it for Parliament to enact legislation that violates rights recognised under the ECHR 1950 wherever it wants to and might specifically state that legislation applies notwithstanding the ECHR 1950 being violated because the courts could not then interpret the statute in a manner compatible with the ECHR 1950. But, in the event that legislation post-dates the HRA 1998 and Parliament’s intention in respect of that later legislation, the more transparent response for the judiciary via their work through the courts is to suggest to Parliament its understanding of what is ECHR 1950-compliant is in error through the aforementioned declaration of incompatibility as a last resort (Ghaidan v. Godin-Mendoza).

Nonetheless, to achieve the HRA 1998’s objectives relating to the criminal justice system, it would still be for the domestic courts to make a declaration of incompatibility, but need not do so because it cannot alter the result in the case in question since it merely provides a means of communicating to Parliament the courts’ view the legislation violates the ECHR 1950. But since the interpretation of ECHR 1950 rights is dynamic some specific problems could develop with regard to the legislation that is implemented via member states because, whilst a statute may be passed in 2000 that may fully respect all ECHR 1950 rights as they are then understood, ECHR 1950 jurisprudence may move on so that conclusion is no longer correct (Beaulane Properties Limited v. Palmer). Therefore, the HRA 1998 via section 3 needs the courts to construe a given Act in keeping with the terms of the ECHR 1950 when the judiciary was reaching its decision in a given case through its work in the courts so that particular legislation’s meaning could vary as the way in which the ECHR 1950 is interpreted varies over a period of time (The Right Honourable Justice Arden DBE, 2004).

The retrospective nature of the HRA 1998 at section 3 was then only verified by R (Hurst) v. HM Coroner for Northern District Council in the event that it was found the HRA 1998 at section 3 would have an impact that is somewhat limited in retrospect. In addition, in view of the fact that the HRA 1998 at section 3 was applicable with regard to the judiciary’s (through the court) ability to interpret legislation regardless of as to when it was enacted, it was possible for the judiciary via the courts to be able to provide an interpretation that is considered to have complied with the ECHR 1950. However, in the case of Cullen v. Chief Constable of the RUC it was found that failing to provide reasons for stopping an arrested person from accessing a solicitor for a period of time (Prevention of Terrorism (Temporary Provisions) Act 1989 at section 15) would not mean that there is a remedy via damages in private law. Moreover, in the case of Cumming & others v. Chief Constable of Northumbria Police, when seeking to determine if the authorities in the form of the police had sufficient grounds to arrest someone, it was for the Court of Appeal to consider the ECHR 1950 at Article 5 despite the fact the arrest arose prior to the HRA 1998’s implementation.

Section B

With a view to providing a critical evaluation of its success in meeting its alleged objectives, domestic courts must clearly construe all legislation in keeping with the HRA 1998 at section 3(1) to achieve justice even at the time when the statute was implemented no-one had heard of the ECHR 1950. Therefore, in looking to assess the impact of the HRA 1998 upon the criminal justice system this is most acutely illustrated by R v. A (No.2). The appeal here in this case was by a defendant regarding an allegation of rape concerning whether certain evidence regarding the complainant’s sexual behaviour would be admissible at trial even though the Youth Justice and Criminal Evidence Act (YJCEA) 1999 at section 41 prohibited such an admission unless certain conditions were fulfilled – i.e. if the prior sexual behaviour were so similar it could not be a coincidence at or approximate to the same time of the event (section 41(3)(c) of the YJCEA 1999). Therefore, the House of Lords held the defendant’s ECHR 1950 Article 6 right to a ‘fair trial’ could be held to have been in violation in the event that relevant evidence for the appellant to address was excluded so it needed to be determined if the YJCEA 1999 at section 41 could be construed so as then stop the rights of the defendant from being violated in the circumstances (The Right Honourable Justice Arden DBE, 2004).

In a similar vein, it is also interesting to consider R v. Lambert where the appellant was in possession of a package which contained controlled drugs in contravention of the Misuse of Drugs Act (MDA) 1971 at section 5(3), as opposed to the case of R v. Altham where it was held by the Court of Appeal that a defendant could not rely on Article 3 of the ECHR 1950 in looking to defend a charge of possession of a controlled substance where he argued it prevented him feeling pain. However, the appellant’s defence was that he did not know or suspect the package contained controlled drugs because section 28(2) of the MDA 1971 provides, subject to section 28(3), the defendant must prove he did not know, suspect or have reason to suspect some fact the prosecution must prove if the defendant is then to be convicted on the facts. There is, however, also a caveat here in view of the fact that section 28(3) of the MDA 1971 provides that someone who is accused of an offence in the circumstances of a given case is not to be simply acquitted (The Right Honourable Justice Arden DBE, 2004). Nevertheless, the appellant failed to make out their defence under section 28 and was convicted so one of the grounds of his appeal was section 28 violated Article 6 of the ECHR 1950 since, by reversing the onus of proof, it violated the presumption of innocence.

With this in mind, the ECHR 1950 at Article 6 has generated more jurisprudence through the work of the European Court of Human Rights (ECtHR) than any other Article of the ECHR 1950 (Grotian, 1994, p.6). This is because having a ‘fair trial’ as of right under the ECHR 1950 is considered to be a key facet to maintaining a democratic society in a country such as the UK so that this would seem to mean that narrowly looking to interpret Article 6 of the ECHR 1950 would be strikingly at odds with the objectives of the HRA 1998 (Delcourt v. Belgium). Therefore, in this regard, the ECtHR has looked at court proceedings to determine fairness – although defects may be resolved later because the ECtHR does not look to avoid determining if a given court makes errors in relation to either facts or law (Grotian, 1994, p.41). Moreover, Article 6 of the ECHR 1950 must also be read in conjunction with Article 5 because in Thompson v. UK the ECtHR held the ECHR 1950 at Articles 5 and 6 had been violated in the event that the applicant was subject to detention summarily before being actually coming before the judiciary in the Magistrate’s Court (Beets & others v. United Kingdom). This effectively meant that the ECtHR found the ECHR 1950 at Article 5(3) had been violated (R (Home Secretary) v. Mental Health Review Tribunal). The reason for this is that the summary proceedings were not suitably impartial and violated Article 6 of the ECHR since they were central to the prosecution as well as the fact legal representation being refused in the summary trial violated the ECHR 1950 at Article 6(3).

Therefore, the way in which the right to a fair trial is perhaps most illustrative of the impact of the HRA 1998 upon the criminal justice system because proceedings are no longer allowed to simply drag on to suit the prosecuting party and those who will make the decisions. This is effectively illustrated by the fact that in Mellors v. United Kingdom the ECHR 1950 at Article 6(1) had been violated with regard to the length of the applicant’s criminal proceedings. On this basis, whilst the court in this case held an 8 month delay between the timing of the arrest and the conviction that was achieved was not considered to be unreasonable, it is interesting to note that 3-year wait for an appeal was a violation of Article 6 of the ECHR 1950. However, this was merely a minor misdemeanour when compared to King v. United Kingdom. That this was the case in the circumstances is because the ECtHR found that the ECHR 1950 at Article 6(1) had been violated when the tax penalty proceedings for the applicant took around 14 years to be resolved. Such an understanding of the position in this regard was then only further supported by the decision Massey v. United Kingdom where it was determined Article 6 of the ECHR 1950 had been violated in the event that the criminal proceedings that were brought in the case of an indecent assault against the applicant lasted for nearly 5 years.

It is also necessary to consider whether the understanding of the right to a fair trial has been breached under the ECHR 1950 at Article 6 regarding evidence being withheld. This is because, despite the deference to national courts, the ECtHR has determined that the ECHR 1950 at Article 6 has been violated in innumerable cases where there has been some sort of procedural impropriety that goes against the interests of justice (Dowsett v. United Kingdom). Therefore, the ECtHR has looked to stress the view that information should be brought before the trial judge in given proceedings to rule in relation to its potential disclosure on the facts, whilst in the case of Edwards & Lewis v. United Kingdom the court determined that the ECHR 1950 at Article 6 had been violated in the event that evidence of a substantive nature was withheld in the public interest. On this basis, the ECtHR determined in this case that evidence was important for ascertaining whether defendants had been entrapped unlawfully by the authorities and so this kind of evidence needs to have been made readily available. This issue has also been considered regarding self-incrimination and in Kansal v. United Kingdom the use of answers compulsively given to the Official Receiver (Insolvency Act 1986 at section 291) served to breach the guarantees that were provided for under the ECHR 1950 at Article 6 regarding the right to a fair trial – even prior to its domestic incorporation via the HRA 1998. The reason for this is that the court in this case argued that the information that had been received by the Official Received proved significant in a criminal trial that was later brought against him so that the applicant was thus prevented from getting a fair trial under the ECHr 1950 at Article 6 in keeping with the decision in Blake v. United Kingdom where the ECtHR held recognising Blake’s criminal guilt in the throes of a trial involving civil litigation did not serve to violate Article 6(2) of the ECHR 1950.

To conclude, the HRA 1998’s impact upon the criminal justice system is illustrated by the fact the domestic courts have had to articulate the relevant principles of law and statutory interpretation to reflect the constitutional relationship between judiciary and legislature, whilst also imposing order. This is because the first question for a court in any case will be to address whether the provision of the HRA 1998 would impose a persuasive burden on an accused on the basis of the application of conventional canons of interpreting legislation. It is then for the court in a specific case to consider whether the provision actually derogates from the presumption of innocence because where that question is answered in the negative, Article 6(2) of the ECHR 1950 is not engaged at all. However, if it is answered in the affirmative the court must address the issues of justification regarding whether the interference with the presumption provides enough weight to the various interests relevant to the case to achieve the particular aim (Fitzpatrick, 2005). It is also to be appreciated, however, that previous courts have perhaps been rather overzealous in finding potential breaches of Article 6 of the ECHR 1950 and have resorted too often to section 3 of the HRA 1998 to read down a reverse burden provision to impose only an evidential burden on a defendant (Fitzpatrick, 2005). Democratic deferences demands are also sometimes rather contradictory because whilst deference requires courts to not strain statutory language to distort the original intention, Parliament has also declared original legislative intention is one interpretive criterion among others. Therefore, the intention behind the original legislative intention must cede priority to the need to interpret legislation compatibly with the ECHR 1950 rights – although, if Parliament has legislated unequivocally violating a ECHR 1950 right, then the courts proper job may be more limited to alert Parliament through the issuing of a declaration of incompatibility under section 4 of the HRA 1998 (Fitzpatrick, 2005a).

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