Ramifications of the Human Rights Act

The Human Rights Act 1998 has importantThe cases that the European Court is hearing are
ramifications for all aspects of police work. Policeconvictions before this Act was processed.
Investigation, the conduct of prosecution and theIn the case of Condron and Another v United
presentation of evidence in court, have all conflictedKingdom 2000 it was held that there had been a
with Human Rights.violation of Article 6 of the Convention. This was
In the context of criminal cases the main areas ofbecause the judge in the case had not properly
Human Rights include:o Right to a fair trial (Article 6directed the jury on the issue of the defendant's
of the Convention)o Right to privacy (Article 8 ofsilence during a police interview; he had said that
the Convention)o Right to an effective remedysilence was negative. He had said this with reference
(Article 13 of the Convention)to section 34 of the Criminal Justice and Public Order
The courts are required to 'read and give effect' toAct 1994.
primary legislation in a way which is compatible withThe first point that I would like to make is the fact
the Convention Rights 'so far is possible to do so'.that the defendants were withdrawing from heroin
Examination of the effects of the Convention on thewhich was the reason that their solicitor had advised
Criminal Justice System reveals the problems, ofthem to remain silent. Most crimes are drug related,
which some will be touched upon in this discussion.this could open floodgates in the fact that they
Police surveillance has already fallen foul of Article 8 inremained silent because they were 'drugged up';
a number of cases. In the cases of Kahn v Unitedevery criminal could abuse this right. This could be the
Kingdom 2000, and the similar case of P.G. and J.H. vmain reason for the judge to have directed the jury
United Kingdom 2001 (The Times, 19th Octoberin this way, to prevent the floodgates. This would
2001), it was held that there had been a breach ofalso put pressure on the legal advisor, simply because
Article 8 and Article 13, but not a violation of Articleif the silent interview is conducted on the advise of
6. It was held that the applicant's right to respect forthe solicitor, then it can be brought up and used
private and family life, as guaranteed by Article 8 ofagainst the defence. However, if I were a juror I
the Convention, had been violated. This is simplywould not think that keeping silent was positive, and
because the domestic law did not regulate the use ofI would agree in this case that the judge should not
covert listening devices at the time of the applicantshave imposed his view on the jury.
conviction. The European Court did however find thatIn the case of Atlan v United Kingdom it was held by
there had been no violation of Article 6, that thethe European Court, that there had been a violation
applicant did have a fair trial. I cannot help but thinkof Article 6 of the Convention because the
that these two judgements contradict each other. Ifprosecution had failed to let the trial judge rule on
the evidence violated Article 8 and the case wasthe question of the disclosure of evidence. The
entirely based upon the weight of this evidence, thenprosecution simply should have followed procedures;
how could it have been a fair trial?the judge decides whether or not the evidence
In the case of Kahn v U.K. Lord Nolan stated to theattracts public interest immunity, as in the case of
House of Lords:Conway v Rimmer. If the procedure were not
'The sole cause of this case coming to your Lordshipsfollowed correctly then we would be having similar
House is the lack of a statutory system regulatingconvictions and unfair trials as in the seventies and
the use of surveillance devices by the police. Theeighties, for example, the Gilford Four, and the early
absence of such systems is astonishing, the more sonineties as in the case of Edwards v United Kingdom
in view of the statutory framework which has(1992).
governed the use of such devices by the SecurityIn the case of entrapment, there is no defence for
Service since 1989, and the interception ofthis in England and Wales. However, the Convention
communications by the police as well as by otherhas applied Article 6 to prevent this, as in the case of
agencies since 1985.'Texiera de Castro v Portugal (1998). 'Even the
It would appear that over the years, the police haveobvious public interest in fighting drug-trafficking could
had an ad hoc system regarding surveillancenot justify using evidence obtained as a result of
techniques and therefore the European Court haspolice entrapment.' I think that this is right but only
highlighted fundamental flaws by way of thedepending on the circumstances. I feel that if a
Convention, in relation to the procedures that havedrug-trafficker is a well known 'heroin dealer' and the
been undertaken by the police regarding the use oflast resort for the police to stop him is by 'agent
surveillance.provocateur', then I think that this should be justified.
The work of the security services has been carriedBy joining the European Union, the government took
out legally under the umbrella of legislation, thereforeon board the laws, provision, directives etc of the
allowing surveillance of suspects. The police do notCommunity. I think that the courts will go as far as
appear to have carried out their work legally,they have to in order to abide and interpret these
therefore the European Court is setting examples inlaws into ours. My view is that to have another body
cases like the above, the main principle being that aof law keeping an eye so to speak, on ours is good.
body cannot carry out illegal acts in order to obtain aThere is less chance of unfair trials, policing and
legal solution (e.g. a conviction). However, thegovernment legislation, and more chance of fair and
Regulation of Investigatory Powers Act 2000properly followed procedures within the law and
provides the police with guidelines on the subject oforder of this country.
surveillance, so there should not be a problem now.