The introduction of the Human Rights Act 1988 from 2 October 2000 will herald a sea change in the UK legal system and similarly affect the way in which the public sector operates. Unless preparations are made now, agencies in the criminal justice system will be vulnerable to specious claims under the Act in addition to meritorious ones which will be expensive to resolve and may generate adverse publicity.
The Home Secretary confirmed this point in his speech to the Civil Service College last December when he commented that 'The Human Rights Act will make a significant change to both our legal and administrative cultures'. In earlier pronouncements the Lord Chancellor had been more emphatic, saying that 'The Human Rights Act will prove a catalyst that will further fuel the ongoing development of the constitutional function of British courts.'
Hardly an edition of a newspaper passes without a report of the latest example of how human rights issues are altering the backcloth against which hitherto accepted practices are now being challenged. Take the example of Scotland, where now defendants cannot be tried before a Deputy Sheriff, and also where Ms Brown had admitted that she was the driver of a vehicle which, it was alleged, she had driven after consuming an excess of alcohol. She asserted that the admission contravened her privilege against self-incrimination. These examples confirm at least three things. Firstly that the public sector is not yet prepared to implement the Act properly or to deal with challenges made under it, secondly that the impact of the Act will seriously affect the criminal law and thirdly that its provisions will permeate almost every aspect of the internal workings and practices of all agencies in the criminal justice field.
So, how exactly will the Human Rights Act impact upon public bodies, agencies, voluntary bodies, private contractors and statutory officers working within the criminal justice system, do they know the Act applies to them and are they fully prepared?
To answer these questions we must examine something of the background. Section 6 of the Act requires all public authorities to comply with Convention Rights. But what is a 'public authority'? It is only defined as 'any person certain of whose functions are of a public nature'. This clearly embraces organisations such as the Courts, the CPS, Probation Service, Government Departments and Agencies (such as Customs and Excise, Inland Revenue, DTI) and the Police but also a raft of individuals who perform an array of functions within the system in a designated role.
This will include individual Police officers (e.g.custody officers, duty inspectors and so on) as well as HSE and VAT Inspectors, Coroners and Police Surgeons. More surprisingly, the definition of public authority extends to companies transporting prisoners, property managers, PFI and PPP contracting parties, youth justice teams, criminal record managers, data protection managers, and in fact anyone who undertakes a public service.
Strasbourg case law has established that countries are responsible for the actions of their employees and armed forces, so it will follow that public authorities must take responsibility for the acts and omissions of their employees, appointees and contractors .The prospect of challenge directed at the individual should by no means be ruled out. It is noteworthy that the judiciary have immunity for their judicial acts.
So what about the voluntary sector such as Victim Support? There is no guidance from Europe on whether such organisations will be caught, although even if they are not there is a strong case to be made that they should embrace fully the requirements of the Act. In each case the likely tests will be whether they provide a public service and if they do so under some kind of obligation.
How will the Act affect the way in which these organisations and individuals operate?
A dilemma has been created in the area of investigation and enforcement of offences where techniques and current law are likely to be found wanting. For example, there has been a recent ruling that a past conviction for rape is not sufficient reason to automatically rule out bail on a subsequent charge of rape. Strictly, statute law must be applied (where there is an obligation to do so) until changed by Parliament. The application of delegated legislation falls into a similar category although the Courts may in fact quash it. The dilemma is of course that compliance may give rise to a challenge and yet there may be no reasonable or legitimate alternative.
In other areas, internal procedures (including those relating to the exercise of powers e.g. Police disciplinary regulations) will need to be reviewed and amended.
The Convention outlines the other rights that people will be able to enforce after October against public authorities. Once an organisation is a "public authority" all its functions come under the ambit of the Act. For those who carry out some public functions, subsection (5) of section 6 may be of some assistance "In relation to a particular act, a person is not a public authority…if the nature of the Act is private". One must therefore consider the nature of the act or decision which is being done or made.
Table Of Articles And Activities
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Activity Or Description |
Convention Articles Applicable |
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Service Provider |
2 (right to life) |
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3 (no torture, inhuman or degrading treatment) |
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8 (right to respect for private and family life |
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14 (no discrimination) |
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Investigating Agency |
5 (liberty & security) |
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6 (right to a fair trial |
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8 |
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14 |
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Protocol 1 Article 1 (Right to peaceful enjoyment of possessions) |
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Information Manager |
6 (right to a fair trial) |
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8 |
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10 (freedom of expression) |
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14 |
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Protocol 1 Article 1 |
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Enforcing Authority |
3 |
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5 |
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6 |
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8 |
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14 |
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|
Protocol 1 Article 1 |
|
Landowner |
6 |
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8 |
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14 |
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|
Protocol 1 Article 1 |
Private acts will not be covered by the Act, and thus agencies, which undertake some public functions, need to consider exactly which actions and decisions are public and which are private. They must also consider the consequences of both imparting and receiving any information. This means any agency co-operating with another must consider its own Human Rights obligations.
Criminal detection would be severely limited if the rights enshrined in the Convention were absolute, but they are not, and it lists exceptions to most which will aid law enforcement agencies. Most exceptions are limited by "as is necessary in a democratic society" which really means – only as far as is necessary.
How will this impact in practice?
|
Article |
Practical Issues To Consider |
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2 |
Deaths in custody |
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Reasonable restraint (or not) |
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Lawful homicide (or not) |
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Assessment of dangerous prisoners/psychiatric patients |
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Release of dangerous prisoners/psychiatric patients |
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3 |
Admission procedures |
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Discipline Regimes |
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Compulsory medical treatment |
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Investigation methods |
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Long periods before trial |
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Long trials |
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The trial process |
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5 |
Stop and search |
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Right to silence |
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Delayed access to a solicitor whilst in custody |
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Breath tests |
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Right to bail |
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Interrogation techniques |
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Compensation claims for wrongful arrest |
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6 |
Immigration detainees |
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Access to a Court (by a prisoner already convicted) |
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Delays |
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Custody time limits |
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Duty of disclosure |
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Reasoned decisions |
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Right to act on own behalf (recent rape trial proposals will no doubt be challenged) |
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Right to silence & not to incriminate oneself |
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Burden of proof (absolute offences will be challenged) |
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Anonymity of witnesses |
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Identity of informants |
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Illegally obtained evidence |
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Hearsay |
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Disciplinary issues |
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8 |
Any interference with home and family life |
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Surveillance & CCTV |
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Telephone tapping |
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Interception of post, or email or internet information |
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Financial records |
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Data Protection |
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Medical records or private information |
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Areas of exclusive rights of occupation - private bedrooms and prison cells |
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Transfer of prisoners |
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Disclosure of personal information |
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Co-operation between agencies e.g. Crime and Disorder Act duties |
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Disclosing to other professional organisations e.g. Area Child Protection Committees |
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9 |
Blasphemy matters |
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Time off for religious events |
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Religious festivals |
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10 |
Public Interest Immunity issues |
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How information is recorded |
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Access to Information |
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Confidentiality |
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Dress codes/uniforms |
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Media issues |
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Workplace discipline for expressing views |
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Whistle blowing |
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11 |
Trade union membership (or not) |
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Public order matters |
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Demonstrations & Strikes |
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Collective bargaining |
|
14 |
All aspects of the criminal justice system will be affected by this Article |
|
Protocol 1 |
Includes movable and immovable property, shares, patents, rent, pension entitlements etc |
|
Article 1 |
Private possessions of staff/detainees/prisoners |
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"peaceful" enjoyment |
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Passing confidential information |
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Compulsory purchase |
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Search and seizure |
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Prison overcrowding |
What all of this means is that all those who work in this field urgently need to address the level of cultural change, education and awareness that will be required to ensure the Act's smooth and complete implementation. Anything less will pose a real risk of expensive and time consuming ad hoc reaction to challenge – whether justified or not. The political embarrassment of challenge and the impact upon employee relations of the exposure of inappropriate practices should not be underestimated.
Sound corporate governance, embracing a considered approach to risk management, should be at the heart of every organisation's preparations. Training needs at all levels will be ongoing as will the need for support mechanisms to provide positive and reactive advice for managers and front line staff who are often likely to be the first to come face to face with human rights points.
Current practices and procedures will need to be reviewed, changed or abandoned as necessary. Organisations should look positively on human rights as a key part of its public policy, employment practices and corporate image.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
