In the dock -- the incorporation of the European Convention on Human Rights will affect every stage of a defendant's progress through the criminal justice system

  • Print
  • Share
  • Comment
  • Save

The European Convention on Human Rights has been primarily associated in the public mind with the criminal justice system.

That is not surprising.

Advertisement

Of the 500 or so judgments of the European Court of Human Rights since its inception, more than half have been about criminal trials.It has always been an attractive cry from convicted defendants.

With time on their hands, they were able to pursue their 'human rights' across the Channel, even if there was only a dim prospect of remedy many years down the line.But it is not just because prisoners complain most assiduously and diligently that this impressive body of case law has dominated the European Court workings.

The real reason is that judges in each country (and in the UK in particular) have held the complacent belief that no one else can teach them about freedoms and rights.

Against that attitude, complaint after complaint has been made.

The European Court has found violations of the articles right at the heart of our criminal process.The conventional view that the rights and freedoms guaranteed by the Convention could be delivered by our own courts was finally and explicitly condemned in a white paper, the forerunner to the Human Rights Bill.

Our common law was criticised as no longer sufficient to safeguard our civil liberties and the European Convention had to be incorporated.Since the Human Rights Act 1998 received Royal Assent, there has been frenzied training in all parts of the criminal justice system.

In those training sessions involving members of the judiciary, there have been two schools of thought.

There are those judges who believe that the incorporation of the Convention will have a root-and-branch effect on our law.

Others, and perhaps a dwindling minority, still believe that there is nothing that Europe can teach us about fundamental freedoms.It is true that our common law is in line with many of the decisions in European cases brought against other governments.

However, the current thinking is that incorporation of the Convention will impact on every stage of a defendant's progress through the criminal system and much will have to change.There has been some patronising comment suggesting magistrates will have difficulty in grappling with concepts of 'human rights' in the mundane case list at the local court.

In fact, soundings show the contrary.

Most of the judiciary is embracing the new concepts and is anxious to implement the new framework of decisions.

Here is a whistle-stop tour of the vulnerable areas of our law.THE RIGHTS AND PRINCIPLESArticle 5 gives everyone a right to liberty and security of person.

An individual can only be deprived of his liberty in accordance with a procedure prescribed by law and in the circumstances set out under the article.Article 6 is the right to a fair trial.

Minimum rights are contained within the body of the article, but they are by no means exhaustive.

European case law has read in many other requirements for due process and fair trial which are not explicitly set out in the Con vention.Article 7 prohibits retrospective criminal penalties.

No one can be convicted of a criminal offence if his act or omission did not constitute a criminal offence at the time of commission.Article 8 provides a right to respect for private and family life, home and correspondence.Articles 10 and 11 embody freedom of expression, freedom of assembly and association.The guarantees of fair trial under article 6 encompass the criminal process from investigation stage to the final appeal court.

This is the first stop in assessing whether the Human Rights Act 1998 will have a bearing on the criminal process under scrutiny.Of these articles, only the rights under article 7 are absolute.

The others can be restricted in order to ensure respect for other rights and freedoms under the Convention.In deciding whether there can be an exception to a right under one of these articles, the European case law has developed several principles.The Convention is a 'living instrument' and consequently, what might have been an allowable restriction as being 'necessary in a democratic society' a few decades ago might now be inapplicable.

The older a case, the less reliable it is.Where an article speaks of an exception being 'prescribed by law', it means that the law must be explicit and susceptible to challenge with adequate safeguards.'Proportionality' requires that a fair balance must be struck between the interests of the community and the individual's fundamental rights.Article 14 provides that all the Convention's rights should be enjoyed by everyone without discrimination.Finally, there must be effective remedies in place to deal with administrative or legal interference with fundamental rights.Since Royal Assent, lawyers have been chomping at the bit to test the effect of incorporation.

This has led to some fascinating pre-emptive litigation through the judicial review process.

In R v Director of Public Prosecutions ex parte Kebilene, [1999] 3 WLR 972, HL, the House of Lords gave some indication of how it saw Human Rights Act litigation taking effect.

The Lords deplored any attempt to generate 'satellite litigation'.

Challenges under the Human Rights Act should take place within the trial process or on appeal.

Only where a person's remedy would effectively be neutralised by delay could a pre-emptive strike be made outside the criminal process.The Act obliges a court to interpret all legislation to be compatible with the Convention if possible.

If the legislation is so much at odds with Convention rights that it cannot be remoulded, then the High Court, Court of Appeal or House of Lords can be invited to make a 'declaration of incompatibility'.

Although this does not provide an immediate remedy to the defendant, a conviction based upon law that is incompatible with the Convention should not attract any penalty.SILENCE AND THE ADVERSE INFERENCEEnglish common law has made much of the concept of the 'presumption of innocence' and the rule against self-incrimination.

Nevertheless, the courts wholeheartedly embraced the changes brought in by the Criminal Justice and Public Order Act 1994 which allow a court to draw an adverse inference from an accused's silence in the face of questioning in the police station, on charge or at trial.In Condron and another v United Kingdom (2000) The Times, 9 May the European Court applied article 6 to a case in which the jury had been loosely directed on drawing an adverse inference from silence.

Their judgment, if it is applied here under the Act, will require far tighter judicial contro l of a jury's use of the discretion to draw inferences than the Court of Appeal has provided so far.

The Judicial Studies Board direction will have to be remodelled so that legal advice to remain silent is given substantial weight.

There must be a direction that an adverse inference should only be drawn if a jury is not satisfied with the plausibility of the defendant's explanation.The recent line of cases from the Court of Appeal has made inroads into a suspect's ability to rely on a solicitor's advice and the privilege that attached to that advice.

Convention law suggests that the Court of Appeal has gone too far.What is beyond doubt is that responses to questions obtained by compulsion cannot be used in a criminal trial to secure a conviction.

It follows that where an individual is required to answer questions asked by financial regulatory authorities (using powers under s.2 of the Criminal Justice Act 1987, the Companies Act 1985, or the Financial Services Act 1986, for example), the evidence cannot then be used in a trial.BAILArticle 5 guarantees an individual 'liberty and security' subject to certain exceptions.

From the starting point of the presumption of innocence and liberty, the European Court will allow detention if there is a fear of absconding, interference with the course of justice, the prevention of crime or the preservation of public order.Since these are the only grounds on which bail can be refused, those sections of the Bail Act which reverse the presumption of liberty will fall foul of the European case law.

Under our current law, a person convicted previously of the most serious of offences will only be granted bail if there are 'exceptional circumstances which justify it'.

Similarly the Bail Act 1976 excludes the right to bail for a serious charge where the defendant allegedly committed the offence on bail for another offence.

Suspects arrested on an allegation of breach of bail condition also have bail excluded.

In these three cases at least, the courts should find a violation of article 5.

Here are examples where the positive rights to liberty under the convention are far more effective than the permissive regime in our law:The principle of 'equality of arms' will require the prosecution to provide full relevant disclosure of its case and anything that undermines it or assists the defence at the time of the bail application.

The CPS will have to institute disclosure of a 'bail information package' for a defendant's first appearance in court.We are all familiar with the administrative arrangements under which defendants are not produced to the Crown Court for bail appeals or applications to that court.

Arguably, where proceedings on such a vital issue are carried on without the defendant present, there would be a violation of the Convention.

The prosecution should have to prove an essential fact on which it relies which is at the heart of the bail decision by calling evidence that can be confronted.

The regime in the magistrates' court and Crown Court where bail business is done by representations will have to change.Although the right to a trial within a reasonable time for those denied bail is guaranteed under article 5(3), the European Court has been disappointingly relaxed in deciding what is 'reasonable'.

Delays up to two years have proved acceptable.RIGHT TO A LAWYERIn the early days of the Police & Criminal Evidence Act 1984, suspects were frequently held 'incommunicado' without access to legal advice on serious offences.

The use of that technique by the police has dwindled.Neverth eless, it might still be used as a weapon in the police armoury of interrogation were it not for the case law from Europe.

Recent cases against the UK government held that a defendant is denied a fair trial if he was denied legal advice at crucial moments, including during a police interview.

It is now difficult to think of a situation where a suspect would be able to be interviewed without a lawyer being present.THE CHARGEIn European law, a charge is made when the suspect is first 'confronted' with the allegation, and not at the point of the formal charge when the case goes before the court.

A suspect has a right to be tried within a reasonable period from the point that the allegation is first put to him.

Even in complex fraud cases, delay will violate that right and the European Court has said the finger of suspicion should not point at a suspect for an unconscionable length of time.The charge itself must not offend against the underlying presumption of innocence.

The burden of proof remains with the prosecution and so charges which appear to reverse the onus of proof need to be scrutinised carefully.The House of Lords has tackled this very point in advance with an eye on the implementation of the Act in October.

It suggested that the Convention allows only a shift in the evidential burden to the defence to raise a doubt, provided the legal burden of proof beyond reasonable doubt remains with the prosecution.

Unraveling this legal acrobat is not something to go into here but the courts are well aware that charges under the Corruption Act, Financial Services Act and many other statutes will be incompatible with the Convention.DISCLOSUREA fair trial under article 6 requires adequate time and facilities for the preparation of a defence.

It requires an 'equality of arms', including information.

The authorities are under a duty to gather evidence in favour of the accused in advance of the trial, and to disclose all relevant material including information undermining defence witnesses.While the European Court has considered each case of disclosure on its facts and decided whether non-disclosure led to an unfair trial, there is a very strong presumption in favour of blanket disclosure of relevant information.

These cases will now have to be set against the regime in the Criminal Procedure & Investigation Act 1996.One criticism of the disclosure provisions in that Act is that the disclosure officer is part of the prosecution team.

Defence lawyers will be very familiar with the problem of extracting relevant documents from the prosecution.

Drawing on the principle of impartiality, that arrangement is likely to be subject to criticism where relevant material is not disclosed to the defence in a trial.

Equally, prosecutors will know of the problems created by their reliance on a police officer's view of disclosure.

This has to change.More importantly perhaps, the disclosure under the 1996 Act takes place after committal and, crucially, after the defendant has set out his case.

There is nothing in the European cases which suggest that disclosure can be delayed for either reason.

In fact, the sense is that full disclosure should take place at an early stage without a mechanism other than the fact of the proceedings themselves.

The Director of Public Prosecutions and Home Office have been analysing the operation of disclosure on a practical level in criminal cases.

On the back of this, the Human Rights Act should produce a wave of complaint about the practice and procedure for disclosure under the 1996 Act.The use of public i nterest immunity (PII) to restrict access to documents has become far more frequent, particularly the use of the ex-parte application when the defence has little or no ability to make informed representations.

European case law accepts the need to balance the public interest against that of the defendant.

However, the scales are tipped firmly in favour of the general right to disclosure, even in cases involving an informer or where the protection of a witness is at stake.As to the procedure for obtaining a PII order from the court, the European Court has recently sanctioned the ex-parte application within the trial procedure.

But PII applications can only be determined by the trial judge and not later by the Court of Appeal.

If that court rules on PII and the trial court did not, the appellant will not have had a fair trial because the decision to withhold material was not dealt with by the trial judge.PUBLIC ORDER OFFENCESArticles 10 and 11 guarantee the right to freedom of expression and to free assembly.

The Convention sets out circumstances in which these rights can be interfered with.

Once again the Convention starts off with a positive enforceable right rather than the permissive regime in English law.

Free speech will include not only the inoffensive remarks but also the irritating, contentious or heretical provided it does not provoke violence.

Freedom of expression also includes demonstrations without using words.The areas of law that will come under scrutiny with the 1998 Act are those sections in the Criminal Justice and Public Order Act 1994 allowing directions to be made and prosecutions brought where individuals, such as gypsies, refuse to leave land.EVIDENCE -- POLICE TACTICSThere has been growing use by the police of entrapment techniques.

Various ploys have been used to entice individuals to commit offences, which have then formed the backbone of a prosecution.

Such 'virtue testing' or 'honeypot' cases have been scrutinised by the European Court.It found that where evidence is obtained without fettering a person's 'free will', there is no prejudice to the fairness of the proceedings, under article 6.

However where the police do not confine themselves simply to investigating criminal activity in an essentially passive manner and take steps to incite the commission of an offence, then that evidence, if admitted, will make the trial unfair.The test is therefore different to English common law.

If the suspect has a predisposition to commit the particular act, the channelling of evidence by police ploy would be allowed.

However, if the prosecution cannot show there is a pre-disposition or propensity to commit that act, the entrapment will render any trial unfair.EXAMINING WITNESSESThe principle that anyone charged with a criminal offence should be able to confront the witnesses against him means that all evidence should be heard in the presence of the accused; the examination of witnesses should be adversarial; and there should be adequate opportunity to challenge and question the witness either at the time the witness makes a statement or at a later stage.The European Court will only allow hearsay evidence to be relied on to prove someone's guilt if there are stringent counter-balancing factors which preserve the rights of the defence.

Equally, where a witness has claimed a fear of reprisal to avoid giving direct evidence, the court have only sanctioned such arrangements in exceptional cases.

Where the witnesses are police officers or government agencies, it is unlikely that they would ever be able t o be shielded by screens or given anonymity under Convention law.POLICE SURVEILLANCEA vast array of technology is available to the police to intercept telephone calls and eavesdrop on conversations.

Faxes and e-mails are all open to scrutiny.

BT has the ability to eavesdrop on conversations in a room by switching on the telephone handset.Article 8 guarantees an individual the right to a private life.

This can only be interfered with provided the surveillance is 'prescribed by law' and is 'necessary and proportionate'.

So, where the surveillance is not regulated by strict controls or judicial scrutiny, it will not be permissible under the article.The authority to intercept communications must set out clearly all pre-conditions, define the category of citizens to which it will apply and provide adequate safeguards against abuse.

It has been held that the use of tape recordings from listening devices introduced into suspects' homes which were only governed by Home Office guidelines issued in 1984 were a breach of article 8.It does not necessarily follow however that the introduction of such evidence into a trial renders it unfair.

However, the government is well aware that all covert surveillance must be operated under a code of law and proposes various pieces of legislation to make these police operations Human Rights Act-compliant.We shall have to see whether all the regulatory systems do indeed meet the stringent tests under the Convention, and whether mobile phone intercepts are incorporated into a legislative framework.The principles of due process and proportionality will effect the varied powers of entry, search and seizure contained in criminal statutes.

Search and seizure must always be proportionate and have a mechanism to allow challenge.The authority to search should only be given by a person independent of the enquiry itself.

Any issues of legal professional privilege (a concept almost sacrosanct under the Convention) should be decided by an independent tribunal if that privilege might be undermined.PRE-TRIAL PUBLICITYWhile the prosecuting authorities can inform the press about a criminal investigation, it requires that they do so 'with all discretion and circumspection necessary if the presumption of innocence is to be respected'.The modern tendency of the police to give full background briefings to the press, including highly prejudicial material, would undoubtedly lead to a trial being declared unfair if the publicity could be shown to emanate from the prosecuting authorities.

Even without briefings by an official, where a campaign has been 'virulent ' and a jury is 'likely' to be prejudiced, there would be a breach of article 6.

This reinvigorates the applications for abuse of process based on prejudicial press reports before trial.COURT OF APPEALThe Court of Appeal will have to look very carefully at its current law and practice when dealing with appeals against conviction.

Following the introduction of the single 'safety test' by the Criminal Appeal Act 1995, the court has said that it has to be convinced both that the appellant's trial was unfair and that justice had not been done before questioning a conviction.In deciding this second question, the Court of Appeal has looked at the evidence as a whole and decided for itself whether it felt that the prosecution had proved its case.

Essentially the court takes its own view on whether the appellant is indeed guilty.

The Convention cases suggest that this approach is wrong.

If there has been a procedural unfairness which renders the trial unfa ir under article 6, then it follows that the appeal should be allowed.

The European Court said that the Court of Appeal does not have sufficient regard for the central role of the jury and that it should not substitute its own views for those of the jury after the trial in deciding what evidence weighed heavily, and why.

The Court of Appeal have been interpreting the 'safety' test too broadly and either the case authorities will have to be radically reviewed or primary legislation will bring the Court of Appeal into line with the Human Rights Act.The European Court took a similar view when considering the application of PII applications in the Court of Appeal.

In Rowe & Davis v United Kingdom, (2000) The Times, 1 March, the prosecution had withheld material from the trial judge and defence and only applied for PII certificates in the Court of Appeal.

The European Court held that it was unfair for the Court of Appeal to dismiss an appeal while withholding the material on PII grounds when it should be up to the trial judge alone to determine questions of disclosure and PII.The proper course was for the Court of Appeal to accept a procedural unfairness by the prosecution withholding the documents from the trial judge and either quash the conviction or return the case for a retrial.

Again, the Court of Appeal decided too much on behalf of the jury.THE FUTURETony Blair recently proposed a policy of spot-fining hooligan behaviour in the streets.

Were he to have had the Human Rights Act in mind, he would have known that a criminal sanction can only be administered after due process in a court.

A police officer would just not be able to march a drunken hooligan to a cashpoint machine.What about the abolition of the right of jury trials for certain defendants? If a person's previous convictions or reputation are a deciding factor in offering a defendant a jury trial, then the law would surely be discriminatory under the Convention.

There is everything to play for.

Have your say

You must sign in to make a comment

  • Print
  • Share
  • Comment
  • Save
CapitalOne_265x144_premierjob
Browse over 3,700 law jobs Get jobs by email
Legal Services Directory

Sign up for email news alerts

Daily Update. Keep abreast of the latest developments that affect the profession

Browse the magazine

Current Issue

The Gazette offers you up-to-the-minute national and international news, opinion, features, in-depth articles plus a jobs and appointments section.

Please click the link below for a digital edition