Human Rights Act and the Criminal Justice System - Essay Example

HAS THE HUMAN RIGHTS ACT 1998 HAD A MAJOR IMPACT ON THE CRIMINAL JUSTICE SYSTEM IN ENGLAND AND WALES? by of the of the Professor Name of the School City, State 12 January, 2013 Introduction For many years, Britain has held the tradition of regard for fundamental human rights. In, fact, Britain was among the first nations to endorse the European Convention on Human Rights. According to Janis, Kay, and Bradley, “the Human Rights Act 1998 was enacted on 9 November 1998, but it came fully into effect only on 2 October 2000” (2008, p.201). The rights stated on the Human Rights Act 1998, apply to the entire population of the United Kingdom. Nearly all the rights contained in the act are incorporated into law, and therefore the Human Rights Act 1998 must be followed by all laws in Britain. “British courts must follow the principles of the Convention, and public bodies, like the police, schools, and hospitals must carry out their work in a way that upholds the Human Rights Act” (Life in the United Kingdom Advisory Group, 2004, p.132). Before the enactment of the Human Rights Act of 1998, many rights existed as privileges, and could be derogated at any time. According to Williams, “the due process model...appeared to protect the defendant, but not as of right, only to ensure a balance between the power of the State and the defence” (2012, p.45). The United Kingdom’s Human Rights Act 1998 was enacted so as to have significant impact on the criminal justice system in England and Wales (Molan, 2001). Rights listed in the Human Rights Act may sometimes seem new and unusual to English Magistrates and Judges, due to the fact that “it is regarded as a living instrument capable of adapting to events and society as it progresses and without the necessity of new legislation” (Gibson and Cavadino, 2008, p.151). Sixteen fundamental human rights are listed in the Human Rights Act 1998. These include: 1. The right to life. The law protects everyone’s right to life. According to Life in the United Kingdom Advisory Group, “the state may take away someone’s life in only very limited circumstances, for example when a police officer acts justifiably in self-defence” (2004, p.132). 2. Freedom against torture. The Human Rights Act 1998 is against any form of inhuman treatment or punishment. 3. Freedom against slavery and forced labour. 4. The right to liberty and security. Unless done within the law, following accurate legal procedures, everyone has a right not to be deprived of their liberty in any way. 5. The right to a fair trial. Unless proven guilty, everyone facing criminal charges is presumed innocent. The right to a fair trial and public hearing is guaranteed to everyone in the United Kingdom through the Human Rights Act 1998. 6. Punishment only takes place within the law. Everyone that commits a crime that was not regarded as a crime by the law at the time it was committed, should not be found guilty, and neither should he/she be punished. 7. Right to respect towards everyone’s private and family life. This right includes individual’s homes and correspondences. According to the Life in the United Kingdom Advisory Group, “there should be no interference with this, unless for very good reasons, such as state security, public safety or the prevention of crime” (2004, p.133). 8. Freedom of thought, conscience, and religion. 9. Freedom of expression. 10. Freedom of assembly and association. 11. Right to marry. However, the law places restrictions on when and with whom marriage is said to have taken place. 12. Freedom from discrimination. Regardless of a person’s sex, religion, race, national origin, social origin, language or political opinion, no person should be discriminated. 13. Protection of property. “No one shall be deprived of their possessions, except in very limited circumstances, such as when the State can take money for payment of taxes or confiscate goods that are unlawful or pose some kind of danger” (Life in the United Kingdom Advisory Group, 2004, p.133). 14. The right to education. 15. The right to free elections. 16. Freedom from punishment by death. Use of the death penalty as a form of punishment for crime is prohibited in Britain. Effects of the United Kingdoms Human Rights Act 1998 on Policing and the Courts The United Kingdom’s Human Rights Act 1998 has had a number of ongoing effects on key policing issues. The Act requires all courts and tribunals to consider decisions made by institutions and the Convention, when deciding on cases presented before them. Jason-Lloyd points out that “these include the European Court of Human Rights, the Council of Europe and, when it existed, the European Commission of Human Rights” (2005, p.231). All courts in the United Kingdom are required to read primary and secondary legislation in a way that agrees with the Convention. As a result of this, some courts in the United Kingdom have to nullify secondary statute laws, or higher courts binding decisions in some cases, in order to protect some human rights listed under the Convention. The High Court and other bodies above it cannot nullify primary legislation; however, they have the option of notifying the United Kingdom government in case of incompatibilities in the law being amended, which is allowed under the 1998 Human Rights Act. All public authorities in the United Kingdom are required to perform their duties in accordance with the Convention. Public authorities that fail to do this face civil action. According to Jason-Lloyd, “the mechanisms within the 1998 Act, however, fall short of creating a special constitutional court or human rights commission , although it has been stated that none of these possibilities have been completely ruled out” (2005, p.232). There have been various misconceptions by people towards the human rights, mainly as a result of erroneous impressions from the United Kingdom’s press. These include the allegations that the effectiveness of police operations has been hindered by human rights leading to contentious operational decisions. According to the Great Britain House of Commons and Home Affairs Committee, “these stories have suggested that human rights laws have tied the hands of the police, stopping them from taking the actions necessary to make society safer” (2009, p.18). Police work in the United Kingdom has always involved the use of discretion, which has increased over the years. This was done by the government in order to ensure that the police have no excuse in performing their duties. However, when viewed from the side of the police, it is a great burden on them, considering that although they have massive discretionary powers, everything they do has to follow the Human Rights Act. “In Human Rights terms, this means that every time a police officer has to make a decision on arrest, they will effectively be required to make a determination as to whether it would be appropriate to arrest” (the Great Britain House of Commons and Home Affairs Committee, 2009, p.18), under articles of the Human Rights Act 1998. Therefore the parliament has failed to clearly define parameters with which the police can make decisions on-the-spot. Effects of the United Kingdoms Human Rights Act 1998 on Interpretive Duty The Human Rights Act 1998 gives two main powers to the courts, with respect to fundamental laws. These include interpretive powers and declaratory powers. Under section three of the United Kingdom’s Human Rights Act 1998, courts have the obligation to interpret laws in a way compatible with the Convention rights. In case of difficulties in interpretation, courts are required to issue a declaration of incompatibility under section four of the Human Rights Act. Kavanagh points out that “this has no immediate impact on the validity of the legislation under scrutiny, but places the executive and legislature under considerable pressure to amend the legislation” (2009, p.5). However, the interpretive duty given to courts has some challenges. Despite the fact that judges have been given interpretive powers, they cannot do as they please due to a number of reasons. This is due to the fact that though free, judges are not wholly free, and there is a limit to their freedom. “Although the expansive language of human rights instruments means that they cannot constitute precise directions which judges simply enforce, they do at least point towards the acceptable parameters within which constitutional adjudication may occur” (The University of Cambridge Centre for Public Law, 1999, p.13). Therefore, judges and courts cannot pass judgements according to their own pursuits. The scope of judge’s interpretive freedom is also limited by the doctrine of precedence, where conclusions reached by previous courts have to be taken into account, in the decisions making processes of judges and courts. In this regard, human rights have to be treated as a special case. Rules stated in the constitution do not only apply to the present, but rather ought to support laws of the unfolding future. Past decisions based on human rights guide judges in making their judgements, but they do not alter any fixed limitations on the interpretive freedom of judges and courts. According to The University of Cambridge Centre for Public law, “it is for this reason that the European Convention on Human Rights is regarded as ‘a living instrument which.....must be interpreted in light of present day conditions” (1999, p.13). In passing judgement, judges are also guided by legislations of constitutional courts in other areas of authority. This shows that there are many factors that guide and shape the interpretation of human rights, but their evolving nature and linguistic texture gives judges a considerable scope of interpretive freedom. According to The University of Cambridge Centre for Public law, “the content of this perception of the courts role should empathetically not be determined by the attitudes of individual judges” (1999, p.14). Therefore, judges have complete powers over decisions within their own courts and are free for the government, but their decisions can be reversed by equally complete decisions of Senior Judges in higher courts. However, it is trusted that the United Kingdom judiciary performs its duties in a just and honest manner. Effects of the United Kingdoms Human Rights Act 1998 on Declarations of Incompatibility The United Kingdom Human Rights Act 1998 does not allow courts to cancel or override legislation. The Act therefore does not deliberate a power of judicial review. A court has a right to make a declaration of incompatibility, when unable to read and give effect to the law in a manner consistent with the human rights Convention. Section ten of the United Kingdom’s Human Rights Act responds to declarations of incompatibility, by empowering a minister to take restorative action to correct unreliable legislation. However, the declaration of incompatibility is to be avoided, unless in cases where it is impossible to avoid it, since it is generally a measure of last resort. The declaration of incompatibility is important due to the fact that it offers a means of informing the United Kingdom Parliament of discrepancies between the laws and listed human rights. It however poses a difficulty from the fact that it provides defendants with a form of consolation prize, since contradictory laws remain valid and effective. This means that irrespective of the fact that courts may find a law conflicting with a right, lack of response by Parliament for remedial actions means following what is stated, though contradictory thus posing a very severe limitation. Better approaches to this have been suggested such as “to empower courts to strike down legislation that breaches listed rights, while also enabling Parliament to then, under an override clause, re-enact the same legislation, perhaps in a modified form, or if it desires, in exactly the same form” (Campbell, Goldsworthy, and Stone, 2003, p.260). Declarations of incompatibility are taken as measures of last resort. However, there are arguments that they should be applied more often in order to promote dialogue between the elected branches of government and the courts. Declarations of incompatibility also have a number of temporary consequences, since they affect private parties. Convention rights of concerned parties are consumed due to continued application of the law since there is no continued benefit of legal trust during this period. Declarations of incompatibility virtually compel the United Kingdom Parliament to comply by correcting affected legislations. Unless when there are no alternative remedial actions, the United Kingdom parliament should not just amend legislations, due to the compelling forces posed by declarations of incompatibility. Circumstances in which courts should offer declarations of incompatibility should also matter. According to Hoffman, “the leading House of lords decisions confirm that while Parliament’s ability to carry out wide-ranging and precise law reforms supports the issuing of a declaration of incompatibility, it is not a sufficient reason for doing so” (2011, p.78). Interpretation of statues is an alternative remedy to declarations of incompatibility, where the problem is with the interpretation of a law. According to the Great Britain Parliament and Joint Committee on Human Rights, “remedial orders are secondary legislation made under the Human Rights Act 1998 (HRA) to remove an incompatibility with Convention rights in primary legislation identified by either our domestic courts or the European Court of Human Rights” (p.5). Honest declarations of incompatibility are followed by a remedial order process conducted by the government to remove breaches on the European Court of Human Rights. Effects of the United Kingdoms Human Rights Act 1998 on Prohibition of Incompatible Acts by a Public Authority Under the United Kingdom’s Human Rights Act 1998, public authorities are required to act in a manner compatible with the Convention rights, except when acting in compliance with primary legislation. Scott points out that, “a public authority is defined to include a court or tribunal and any person certain whose functions are functions of a public nature” (2001, pp.399-340). Sections six and seven of the Human Rights act allow individuals to accuse public authorities, which act in ways contrary to the Convention rights. The Act supports honest accusations against individual police officers and foreign police authorities, by individuals tortured during the police course of duty. The Human Rights Act has an extraterritorial effect since a European Convention is incorporated in the statute, as well as its subject matter. There are claims on the extent to which claims under the United Kingdom’s Human Rights Act 1998 qualify by the State Immunity Act. “The English courts may wish to interpret the Act in such a way that it is presumed not to have an extraterritorial effect, since no mention is made in the Act of its territorial application” (Scott, 2001, p.341). This would be inappropriate because the State Immunity Act must be interpreted in compatibility with the European Convention, since the English law incorporates the European Convention. Effects of the United Kingdoms Human Rights Act 1998 on Application in Private Disputes The United Kingdom’s Human Rights Act 1998 requires private bodies carrying out public functions to perform their duties in a manner that conforms to the Convention rights. According to the Great Britain Parliament and Joint Committee on Human Rights, “the act also has a broader impact on UK businesses: private entities have their own rights guaranteed; human rights arguments arise n business disputes; and the legal and regulatory frameworks in which businesses operate are influenced by the Act” (2010, p.48). The Human Rights Act may therefore be applied in disputes between private entities. Booty gives an example of private companies, which “might feel the effects of the Human Rights Act more directly, if they dismiss an employee, and for example want to use an abusive email to defend their decision before an employment tribunal” (2006, n.p.). The court may rebuke evidence by the employer, and destroy the justification by the employer for dismissal, in the event that the employee provides proof that obtaining the email was in breach of his human rights. However, if an employer manages to justify his intrusion into an employee’s private and family life, no charges are pressed on the basis of breach of human rights. Conclusion In conclusion, the rights listed in the United Kingdom’s Human Rights Act 1998 apply to individuals, groups of individuals, incorporated entities, and non-governmental organisations. However, governmental organisations do not rely on these rights. Some of the rights listed are inalienable, while others can be derogated. The implications of the Human Rights Act on the operations of the English legal system are profound. The United Kingdoms Human Rights Act 1998 has had a number of effects on policing and the courts, interpretive duty, declarations of incompatibility, remedial orders, and prohibition of incompatible acts by a public authority and application in private disputes, as discussed in the paper. Reference List Booty, F. ed., 2006. Facilities Management Handbook. Oxford: Butterworth-Heinemann.  Campbell, T., Goldsworthy, J. D., Stone, A. S. A., 2003. Protecting Human Rights: Instruments and Institutions. Oxford: Oxford University Press. Gibson, B. and Cavadino, P., 2008. The Criminal Justice System: An Introduction. Hampshire: Waterside Press.  Great Britain House of Commons and Home Affairs Committee, 2009. Police and the media: Second Report of Session 2008-09: Report, Together with Formal Minutes and Oral Evidence. Norwich: The Stationery Office. Great Britain Parliament and Joint Committee on Human Rights, 2010. Any of Our Business? 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