Policing and Human Rights Act 1998 in the UK - Essay Example

Word count 3400 POLICING AND HUMAN RIGHTS ACT 1998 (UK) Introduction Human rights are often defined as freedoms and rights that are accorded to all human beings regardless of their citizenship or nationality. The European convention of Human rights was written by the nations of the council of Europe, including UK, after the end of the Second World War aiming at preventing the injustices that had happened from happening again.1 UK lawyers and civil servants were heavily involved in the drafting. The Human Right act came into effect in UK in 2000, meaning that the UK citizens could now take their human right cases to European courts. There are sixteen basic rights in the human rights act, all taken from the European convention of human rights. The main effects of the Human Rights Act, 1998 are thresholds.2 First, when deciding cases before them, all courts and tribunals are required to take into account the conventions, as well as the decisions made by the institutions.3 Secondly, the national courts should read, if possible, the primary and secondary legislation in a manner, which is compatible with the conventions. Thirdly, public authorities are under a duty to act in accordance with convention failure, which results into civil action being taken against them. Generally, the main purpose of this convention was to proclaim a series of universal human rights which militate against the repetition of those events which had caused such immeasurable suffering. All public officials, including the police, have an obligation to respect and act according to the convention rights.4 Acting in such a way to contravene or go against these laws is unlawful and the citizens can raise any inappropriate act before the UK court or tribunal.5 The statements in this convention have to be contained within its articles which are augmented in its protocols which have been added since its formulation. In this paper, we shall look at how the various articles in the human right act have affected the police practice in crime investigation. Right to Life A person has a right to have their life protected by the law.6 No one shall be deprived of his life. The act outlaws the death sentence in the United Kingdom. There are only limited circumstances where one can take away another’s life, like for self-defense. The police are therefore, expected to be very careful when carrying out an investigation because any act that may result to the death of the criminal is not justifiable under the law. A police is not supposed to end a person’s life by use of excess force even if he is defending the person from unlawful act, trying to affect a lawful arrest or prevent the criminal from escaping, or when he is calming down a protest. This will be considered as murder and the police will face the full force of the law. This article imposes a higher standard of whether the use of force was necessary. Based on that test, the use of force must be determined and objectively assessed by deciding whether the force use was disproportionate to the apparent threat that it was intended to prevent. Therefore, the police are limited to the extent to which they can engage a suspect in their duty of criminal arrest and investigation. In Finucane v UK, the applicant’s husband, Patrick Finucane was a solicitor who constantly received death threats and was one day shot dead in front of his family. Investigations were started and completed the same day. However, the police who were conducting the investigation were suspected to issue death threats and therefore there was a conflict of interest. During the hearing, the court identified several shortcomings in the investigation procedure because Patrick’s life threats were not investigated. The court ruled in favor of the applicant because no one has a right to take another’s life, under all circumstances and the police failed to protect this right by failing to investigate death threats prior to his death. Prohibition of Torture No person shall be subjected to torture or to inhuman degrading treatment or punishment. A police officer is not supposed to harass the suspects in any way while arresting them with the aim of getting the evidence from them .Torture can be in any form ranging from shouting to the suspect, threatening the suspect to physically hurting him.7 A case where the police officer beats the suspect seeking to obtain evidence from him or forcing him to accept some allegations is unlawful. A police should not mishandle the suspect in any way, because any form of torture is not acceptable under the law. The forms of torture include verbal, physical, emotional, and even psychological. This protects the citizens from suffering harm due to police suspicion. The suspect can use such a torture as a defense in the court when he claims that he was tortured during the investigation and this is against the convention right. Police are always supposed to act and conform to the conventional rights in course of their duty. This article is an absolute right from which no derogation is permitted. Mutual respect should exist between the suspect and the police during arrest or investigation. However, the suspect may take a lawful action against the police since the police are not immune to the law. Right to Liberty and Security A person has a right not to be deprived their liberty. For example, no one should be detained or arrested unless in limited cases specified in the article like being suspected or convicted of crime, and provided there is a proper legal basis in the UK law. The police are required to inform anyone being arrested promptly, in a language he understands, for the reasons of his arrest or any other charges against him. The person should face trial within a reasonable time. However, arresting or detaining a person against the conventional law will lead to the arrested being compensated. This can be used in court to defend the suspect when he has been unlawfully arrested or detained by the police. It may be used to challenge the decision of the police or the court if it denies the accused a bail. Police should always ensure that a suspect is detained for a long period before appearing in court for trial because this will result to unlawful detention. The police must always have clear reasons for arresting an individual or else they may be accused of denying an individual their right to liberty and security. Police can only arrest a person on reasonable suspicion of having committed or about to commit an offence. They can also show that the arrest is essential in obtaining certain evidence. The police should hold no one in commando unless the criminal investigation or the person involved could be endangered were contacts to be made by persons outside the police station. Otherwise, the police should not carry out any detention or arrest. If arrested lawfully, all persons held in police custody are entitled to adequate drink, food, toilet, washing facility and the necessary medical facility. The police cell must meet certain minimum standards and those include bedding, which must be also of a reasonable standard. The issue of police stop and search is also expressed in this article, which involves a temporary detention of the suspect. The case law of Lawless v. Ireland (1961) illustrates this concept. The plaintiff was arrested and detained without trial as he was travelling to Great Britain from Ireland. He filed a suit for the violation of his liberty by the Irish government that violated articles 5-7 of European Convention of Human Rights that provided for right to liberty and security, fair trial and principle of no punishment without law. The plaintiff was a member of IRA and h had been convicted of possessing weapons and maps for attack on Britain posts but was later released after serving a month in prison. His case was however dismissed because the Irish government used emergency legislation and therefore his rights were not abused. Right to a Fair Trial A person has a right to a fair and public hearing within a reasonable time. An independent tribunal established by the law must carry out hearings. It is possible to exclude the public from the hearing if necessary. If it is a criminal charge, a person is presumed innocent until proven guilty according to the law and has certain guaranteed rights to defend them. Judgment shall be pronounced publicly although the press or public may be excluded if necessary. This article is the most significant convention for criminal litigators and is relevant at all stages of a criminal case. It includes the defendant’s right to have a legal representation at the police station and the trial.8 The police should always uphold this law in their dealings with the suspect. First, they should never brand a person as a criminal until he is declared so by the court. They should also allow an individual to have a legal representation at the police station. The police should also present true evidence before the court so that the individual is not judged based on false testimony. The use of informers and undercover police officers raise the concern of fair trial. Issues as to the lawfulness and fairness of the investigation may be considered in relation to the admissibility of evidence, as will question disclosure under the criminal procedure and the investigation act at the trial itself. This may lead to unfair trial. Saunders v United Kingdom was heard by the European Court of Human Rights in regard to right against self-incrimination and presumption of innocence until guilt is proven. The plaintiff was accused for 12 distinct offences of conspiracy, false accounting and theft. The police relied on section 434(5) that stated that failure to answer questions during an investigation was an offense. Saunders was left with the options of either incriminating himself or face punishment for contempt of court. The court ruled in favor of Saunders because his answers were obtained under compulsion, denying him a fair trial. This article is also relevant when key operational decisions are being made during the investigation. For example, the case of undercover police approaching the applicant to set up a heroin deal and subsequently arrest him. This police act results to incitement and the evidence obtained is a breach of this article. The European requires that the use of undercover police should be restricted and safeguards be put in place even in cases concerning the fight of drug trafficking. This places weight on the requirement of authorization and supervision in undercover operations if the exercise is not a breach of article six.9 This extends to informers where the risks are similar. Most importantly, the suspect should be taken to court within a reasonable time, utmost within the 24 hours of the arrest or else the police will be illegally detaining him. This act is relevant to the exercise of the police power. Right to Respect for Private and Family Life A person has a right to respect for their private and family life, their home, and their correspondence. This right can be restricted in specified circumstances.10 The police should never interfere with the exercise of this right except if it is in accordance to the law or it is necessary in democratic society. Any interference must be authorized and to a certain proportion. The police should not disrupt an individual’s family or private life in order to obtain evidence because this may be used as a defense in the court. The defendant may challenge the admissibility of the evidence obtained in breach of his rights to a fair trial. Therefore, any violent entry into an individual’s apartment is unlawful.11 Entry into a person’s house during weird hours without their permission is also against the conventional rights unless it is authorized for specific purposes. The police can only use the power deriving from deriving from a legal source in order to interfere with a citizen’s privacy or liberty of a citizen or else the citizen may be able to bring act against them in the UK court.12 It is a violation of this act where the police the police officers entire into the applicants home without reasonable ground to apprehend a breach of the peace. Another restricted operation in this act is the use of surveillance operations. Such activities can be challenged on the ground that judicial scrutiny does not always occur prior to such action. In cases where the police place a listening device in the premises occupied by the defendant. The defendant can argue that the incriminating conversation recorded on the tape was because of police bagging his premises and so it should be ruled inadmissible since it was obtained because of trespass and criminal damage.13 There was a violation as the covert surveillance was unlawful due to the absence of statutory authority to conduct it. Since the definition of intrusive surveillance confines it to the covert surveillance of residential premises of private vehicles, there is likelihood of breaking the conventional right 8, since it recognizes private life beyond the home. Furthermore wiring up an informant or an undercover police to obtain information from a suspect in his or her own home is treated as direct surveillance, requiring only internal authorization, which again may well not satisfy convention requirement. The covert and sensitive nature of surveillance operations raises difficulty when it comes to applying normal principles of procedural justice to a complaint system. Freedom of Thought, Religion, or Consciousness Every human being has the right to freedom of religion, thought, or consciousness. This simply means that people has the right to manifest, practice, and change his religion in teaching, observance, or worship.14 This law is however limited to the prescribed law of the democratic society for the interest of the public safety, healthy morals or the protection of the rights and freedom of others. The police officers cannot just arrest an individual because they are practicing their religion unless it has gone beyond the lawful limits.15 A case where police officers invade a church service going on throughout the night and harass the congregation is unlawful unless this service is interrupting other people’s rights. Another example is the case where the police arrest an individual because he is a Muslim and they suspect he is a terrorist. This is discrimination and the police do not have any reasonable fact for arresting this person. The police can face the full force of the law if taken to court. Freedom of Expression A person has the right to hold and express their views on their own or as a group. This applies to unpopular and disturbing views too. This right can only be restricted in specified places. The police have no authority to arrest an individual due to his opinions unless the opinions are a threat to national security, territorial integrity, or public safety, they are morally unhealthy, they betray the rights and reputation of others, or they disclose confidential and critical information.16 The police are restricted from executing their force on individuals just because they are saying what looks like the truth to them. A speech, as it may be rigorous, distasteful or unmannerly, is permitted as long as it does not go beyond the three rules, i.e., it must not be threatening, it must not be insulting, it must not be abusive. The police have to consider the right to speech against the need to preserve public order.17 They should decide how to manage the situation and prevent disorder breaking out or curbing it if it has already been broken. This law also applies to demonstration situation where a group of people goes for a demonstration to express some complains to their leaders. These people have a conventional right to as long as they do not destruct the peace at that time. The police should never stop them unless the group of people threatens unlawful violence for a common purpose.18 Even if they plan to stop the demonstration, they should be careful not to use means that may lead to loss of lives because it leads to violation of article two. Another aspect under this law is the right to carry out a political speech without the fear of arrest and victimization. The police officials on the course of their duty should respect this right. Freedom for Assembly and Association An individual has the basic right to assemble with others in a peaceful way. They also have a right to associate with others, which include the right to form trade unions. These rights may be restricted at some specific circumstances. Freedom for assembly means the right to protest in a peaceful way.19 The police should use reasonably minimum force in the circumstance. Excessive use of force may interfere with the protesters freedom rights of expression and assembly, right to life, freedom from torture, or the right to non-interference with private life.20 This article recognizes the people’s right to decide on whether to create or form associations or groups such as trade unions, political parties and other private groups or associations recognized by the law.21 It explicitly acknowledges the freedom of trade union as one vital way of freedom of association. Public authorities for example the police must not hinder or in any way restrict peaceful association or assembly. However, associations should exercise their freedom to the level which is allowed by the law. The right to freedom of peaceful assembly and association is a qualified right and balances the right of individual against those of the community at large. This freedom can be restricted in situations where there is pursuit of a legitimate aim, prevention of a crime or disorder or in the protection of freedom of other people.22 Public processions and assemblies are protected where by the notification procedure for procession are established, and circumstances where the police may impose restrictions and conditions well described. The right to association contains many specific concepts/ elements. They include; the right to join or form trade unions for ones interest, the right of trade unions to be listened to and subsequently be allowed to persuade the employer to give them an ear or listen to what the union says to its members ,and safeguard its members rights,23 and the right to strike and collective bargaining. Conclusion In conclusion, the human rights act 1998 has created much challenge and subsequent controversy throughout the entire field of criminal justice system. It is hoped that the continuing reforms occurring in the wake of its implementation will significantly improve the quality of justice. As far as the police are concerned, continued changes in the powers, duties and procedures are in line with this aim, and it is hoped that future reforms will assist in maintaining their credibility in order to encourage the concept of policing by consent. Whatever future changes are in store for them, the Human rights act 1998 is very important since it promotes positive and constructive measures, without unnecessarily complicating the work of the police.24 But as always, much depends not only on new rules in dealing with suspects or other person dealt with the police, but equally on the manner in which individual police officers exercise their power and duties. The task ahead of them will continue to be challenging indeed. This act is both beneficial to the public and the police. As much as it protects vulnerable individuals from exploitation and unfair treatment, it also protects the police officers in their line of duty. It is considered a sword and a shield to the police. Bibliography Legislation Human Rights Act, 1998 (UK) Secondary Sources Barendt, Eric. "Freedom of Expression in the United Kingdom Under the Human Rights Act 1998." Ind. LJ 84 (2009): 851. Beatson, Jack. Human rights: Judicial protection in the United Kingdom. Sweet & Maxwell, 2008. Betten, Lammy, ed. The Human Rights Act 1998: What It Means: The Incorporation of the European Convention on Human Rights into the Legal Order of the United Kingdom. Martinus Nijhoff Publishers, 1999. Blackburn, Robert. Towards a Constitutional Bill of Rights for the United Kingdom: commentary and documents. Burns & Oates, 1999. Clayton, Richard, Hugh Tomlinson, and Carol George. The law of human rights. Vol. 2. Oxford University Press, USA, 2000. Dugard, John, and Christine Van den Wyngaert. "Reconciling extradition with human rights." American Journal of International Law (1998): 187-212. Evans, Carolyn. Freedom of religion under the European Convention on Human Rights. Vol. 1. Oxford University Press, 2001. Feldman, David. "The Human Rights Act 1998 and constitutional principles*." Legal Studies 19, no. 2 (1999): 165-206. Feldman, Daṿid. Civil liberties and human rights in England and Wales. Oxford University Press, 2002. Gearty, Conor A. Can human rights survive?. Vol. 57. Cambridge University Press, 2006. Gearty, Conor. "Reflections on Human Righs and Civil Liberties in Light of the United Kingdoms Human Rights Act 1998." U. Rich. L. Rev. 35 (2001): 1. Hoffmann, Lord. "The universality of human rights." Judicial Studies Board Annual Lecture 19 (2009): 22-3. Hunt, Murray. "The Human Rights Act and legal culture: the judiciary and the legal profession." Journal of Law and Society 26, no. 1 (1999): 86-102. Kitterman, Christina M. "United Kingdoms Human Rights Act of 1998: Will the Parliament Relinquish Its Sovereignty to Ensure Human Rights Protection in Domestic Courts, The." ILSA J. Intl & Comp. L. 7 (2000): 583. Martin, Elizabeth A. A dictionary of law. Oxford University Press, 2009. McEldowney, John F. Public law. Sweet & Maxwell, 2002. McGoldrick, Dominic. "The United Kingdom’s Human Rights Act 1998 in Theory and Practice’(2001)." IcLQ 50: 901. Nicol, Danny. "The Human Rights Act and the Politicians." Legal Studies 24, no. 3 (2004): 451-479. Phillipson, Gavin. "The Human Rights Act,‘Horizontal Effect’and the Common Law: A Bang or a Whimper?." The Modern Law Review 62, no. 6 (1999): 824-849. Robertson, Arthur Henry, and John Graham Merrills. Human rights in Europe: A study of the European Convention on Human Rights. Manchester Univ Pr, 1993. Steyn, Lord. 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