UK: The Human Rights Act – The Implications For Criminal Justice Management

Last Updated: 18 January 2001
Article by Bernadette Livesey

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

Activity Or Description

Convention Articles Applicable

 

 

Service Provider

2 (right to life)

 

3 (no torture, inhuman or degrading treatment)

 

8 (right to respect for private and family life

 

14 (no discrimination)

Investigating Agency

5 (liberty & security)

 

6 (right to a fair trial

 

8

 

14

 

Protocol 1 Article 1 (Right to peaceful enjoyment of possessions)

Information Manager

6 (right to a fair trial)

 

8

 

10 (freedom of expression)

 

14

 

Protocol 1 Article 1

Enforcing Authority

3

 

5

 

6

 

8

 

14

 

Protocol 1 Article 1

Landowner

6

 

8

 

14

 

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

 

 

2

Deaths in custody

 

Reasonable restraint (or not)

 

Lawful homicide (or not)

 

Assessment of dangerous prisoners/psychiatric patients

 

Release of dangerous prisoners/psychiatric patients

3

Admission procedures

 

Discipline Regimes

 

Compulsory medical treatment

 

Investigation methods

 

Long periods before trial

 

Long trials

 

The trial process

5

Stop and search

 

Right to silence

 

Delayed access to a solicitor whilst in custody

 

Breath tests

 

Right to bail

 

Interrogation techniques

 

Compensation claims for wrongful arrest

6

Immigration detainees

 

Access to a Court (by a prisoner already convicted)

 

Delays

 

Custody time limits

 

Duty of disclosure

 

Reasoned decisions

 

Right to act on own behalf (recent rape trial proposals will no doubt be challenged)

 

Right to silence & not to incriminate oneself

 

Burden of proof (absolute offences will be challenged)

 

Anonymity of witnesses

 

Identity of informants

 

Illegally obtained evidence

 

Hearsay

 

Disciplinary issues

8

Any interference with home and family life

 

Surveillance & CCTV

 

Telephone tapping

 

Interception of post, or email or internet information

 

Financial records

 

Data Protection

 

Medical records or private information

 

Areas of exclusive rights of occupation - private bedrooms and prison cells

 

Transfer of prisoners

 

Disclosure of personal information

 

Co-operation between agencies e.g. Crime and Disorder Act duties

 

Disclosing to other professional organisations e.g. Area Child Protection Committees

9

Blasphemy matters

 

Time off for religious events

 

Religious festivals

10

Public Interest Immunity issues

 

How information is recorded

 

Access to Information

 

Confidentiality

 

Dress codes/uniforms

 

Media issues

 

Workplace discipline for expressing views

 

Whistle blowing

11

Trade union membership (or not)

 

Public order matters

 

Demonstrations & Strikes

 

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

 

"peaceful" enjoyment

 

Passing confidential information

 

Compulsory purchase

 

Search and seizure

 

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.

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