The Human Rights Act and the substantive criminal law

Criminal Law Review

Volumn , Issue MAY, 2000, Pages 331-340

  Buxton, Richard ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 25144433353     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (52)

1. The present writer's view on those topics is to be found in The Human Rights Act and the Criminal Justice and Regulatory Process (Hart Publishing, for the Cambridge Centre for Public Law, 1999) [hereafter, Cambridge Papers], at pp. 47-57.
2. These considerations are, we believe, elementary in Convention jurisprudence, but they need to be kept firmly in mind in seeking to understand the translation into domestic law effected by the HRA. For a fuller exposition, see (2000) 116 L.Q.R. 49-55. The observation at footnote 6 to that paper applies to this paper also.
3. HRA, ss 6(1) and 3(a).
4. For instance, Lord Bingham of Cornhill, [1998] Crim.L.R. 694; Dame Mary Arden, [1999] Crim.L.R. 439; and Brooke L.J. in B v. DPP [1998] 4 All E.R. 265 at 276g.
5. See on this Brooke L.J. in B v. DPP at 284).
6. e.g. Halford v. United Kingdom (1997) 24 E.H.R.R. 523, investigators listening to telephone conversations from a police officer's office at police headquarters could not be justified under Article 8 because English law made no positive provision for internal interception of communications: as opposed to the statutory code, in the Interception of Communications Act 1995, that governs surveillance of the public telephone system.
7. Silver v. United Kingdom (1983) 5 E.H.R.R. 347 [87]-[88].
8. Sunday Times v. United Kingdom (1979) 2 E.H.R.R. 245.
9. Steel v. United Kingdom [1998] Crim.L.R. 893.
10. Hashman v. United Kingdom, The Times, December 1, 1999 and [2000] Crim.L.R. 185, sub nom. Hashman and Harrap v. United Kingdom.
11. Law Com. 222 (1994), at para. 4.34. The Commission takes a similar view of the demands of English domestic law when deciding that a "General Dishonesty Offence", demanding no more than a conclusion by the fact-finding tribunal that the conduct in issue was dishonest, would be unacceptable: L.C.C.P. No 155, Fraud and Deception (1999), para. 5.32. It is therefore no surprise that the Commission is able to go on and suggest that such an offence, if introduced, would be open to objection under the ECHR as it is under purely English principles.
12. See Kokkinakis v. Greece (1994) 17 E.H.R.R. 397: where the commonalty of the jurisprudence discussed above with that applying under Article 7 is plainly apparent.
13. (1996) 21 E.H.R.R. 363.
14. [1992] A.C. 599.
15. (1996) 21 E.H.R.R. 363 at para. 36.
16. E.H.R.R. ibid. at para. 43.
17. Law Commission Working Paper No. 116, especially at para. 2.08.
18. See in particular the full and careful judgment of Rougier J., commenting on some decisions in a contrary sense, in R. v. J. [1991] 1 All E.R. 759.
19. In The Wagon Mound [1961] A.C. 388 at 424.
20. Hashman v. United Kingdom, The Times, December 1, 1999 and [2000] Crim.L.R. 185, sub nom. Hashman and Harrap v. Untied Kingdom.
21. This point is emphasised by Lord Hobhouse of Woodborough in R. v. DPP, ex p. Kebilene [1999] 3 W.L.R. 972 at 1006G.
22. See further on this point, Cambridge Papers at pp.49-50.
23. This point is strikingly made by Judge de Mayer in his dissenting judgment in Z v. Finland [1997] E.H.R.L.R. 439 at 442-443.
24. See per Lord Hope of Craighead in R. v. DPP, ex p. Kebilene [1999] 3 W.L.R. 972 at 993H: "This technique [of the margin of appreciation] is not available to national courts when they are considering Convention issues arising within their own countries. But in the hands of the national courts also the Convention should be seen as an expression of fundamental principles rather than as a set of mere rules. The questions which the courts will have to decide in the application of these principles will involve questions of balance between competing interests and issues of proportionality."
25. For the avoidance of doubt that has been expressed in some quarters, Schedule 1 to the HRA is not an enacting provision, but merely a convenient recital of those parts of the ECHR in which are to be found the Convention rights addressed in section 1 and following of the Act.
26. L.C.C.P. No 155, para. 5.48.
27. A further difficulty is that the discussion in the text addresses only the case, admittedly the usual case, where there is no specific Strasbourg ruling as to the "Convention compatibility" of a particular category of conduct or rule of domestic law. The logic of the Law Commission's position however demands that even where there is such a Strasbourg ruling the national court should be free to go its own way.
28. It must be admitted that the approach suggested in the text is doubted by some influential commentators, quite apart from the Law Commission. See for instance Grosz, Beatson and Duffy, Human Rights (2000, Sweet & Maxwell), p.20 at n.36, and the graphic feline analogy there set out. But such criticisms unfortunately do little to indicate, for the benefit of the national judge, how he should otherwise proceed.
29. Though it must be noted that the Divisional Court felt able to reach that conclusion in relation to a statutory provision in R. v. DPP, ex p. Kebilene [1999] 3 W.L.R. 175. We return to that case below.
30. See Professor Ashworth in Cambridge Papers at pp.39-42.
31. (1998) 27 E.H.R.R. 611; see in particular the commentary by Professor Ashworth at [1998] Crim.L.R. 893.
32. Not least because of the rule, regarded as sacrosanct by English criminal lawyers, that the courts may not alter the criminal law in a direction unfavourable to the accused. That principle was, perhaps surprisingly, not thought to be engaged in R (Rape: Marital Exemption).
33. However, it clearly stands behind the observations as to stare decisis of Lord Goddard C.J. in Taylor [1950] 2 K.B. 368 at 371;
34. and see also Lord Widgery C.J. in Tirado (1974) 59 Cr.App.R. 80 at 83.
35. "Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary."
36. McCann and other v. United Kingdom (1996) 21 E.H.R.R. 97; Andranicou v. Cyprus (1998) 25 E.H.R.R. 491.
37. See most conspicuously Gladstone Williams (1984) 78 Cr.App.R. 276, approved by the House of Lords in B v. DPP [2000] 1 All E.R. 833.
38. Professor Ashworth in Cambridge Papers at p.41.
39. Sir John Smith in the preface to Smith & Hogan, Criminal Law (9th ed., 1999).
40. We do not apologise for emphasising this point. The ECHR only intervenes in relations between one citizen and another, such as arise when D thinks that P is about to attack him and acts to prevent that attack, if the complainant can show that the state's rules in respect of D's conduct give a degree of protection to P that is inadequate to the extent of infringing the state's obligations under the ECHR.
41. For instance, police officers failing to protect one citizen against a known threat from another citizen: see Osman v. United Kingdom [1999] Fam. L.R. 86, at para. 115.
42. All of the present discussion leaves aside the obvious oddity that the ECHR creates a right to life, but no right not to be assaulted or otherwise attacked; so the effect of directly applying the ECHR rules in domestic law would be to create one law of self-defence in cases of murder and a different law of self-defence in cases of assault, such as Gladstone Williams was.
43. See for instance McCann, (1990) 21 E.H.R.R. 97 at para. 163 (alleged shortcomings of the inquest proceedings had not prevented the proper investigation of the circumstances of a violent killing that Article 2 impliedly required); and the Commission decision in Application by the Taylor and other families D&R 79-A (1993), p.127 (obligation to protect life included public scrutiny of the circumstances of killing by a state agent, fulfilled in the instant case by prosecution of the mentally disturbed nurse who had perpetrated the killings).
44. See footnote 22 above.
45. Van Dijk and van Hoof, Theory and Practice of the European Convention on Human Rights (3rd ed., 1998), p.460. It might indeed be surprising if the rule were otherwise, since the English requirement of proof by the prosecution beyond reasonable doubt would not appear to be known in the domestic laws of many of the other countries that are signatories to the ECHR.
46. "The Contracting States may, under certain conditions, penalise a simple or objective fact as such, irrespective of whether it results from criminal intent or from negligence": Salabiaku v. France (1988) 13 E.H.R.R. 379 [27].
47. Bates v. United Kingdom [1996] E.H.R.L.R. 312 cited for this point in Archbold 2000, para. 16-78. The case itself is something of a cautionary tale for English lawyers, and administrators. A dog was the subject of a destruction order under section 4 of the Dangerous Dogs Act 1991, by reason of an offence committed by its owner under section 1(2)(d) of that Act. By section 5(5) of the Act the burden of proving that the dog was not one to which the Act applied rested on the owner. In the English proceedings it was claimed that section 5(5) infringed Article 6 of the ECHR. The Divisional Court considered that claim in full, with citation of ECHR jurisprudence, held that it was unfounded, and refused leave to appeal to the House of Lords: R v. Thames Stipendary Magistrates, ex p. Bates [1995] C.O.D. 6. However, upon an application to Strasbourg being threatened, the police who had custody of the dog decided not to enforce the order of the English court: see "Dangerous dog gains further stay of execution", The Times, August 9, 1994, p.5. The order was thus held in abeyance until the Strasbourg Commission some eighteen months later agreed with the Divisional Court that the application was inadmissible. With the arrival of the HRA it is to be hoped that there will be a more orderly approach to the interaction between domestic and ECHR law.
48. See the list given in R v. DPP, ex p. Kebilene [1999] 3 W.L.R. 972 at 995H-996B, per Lord Hope of Craighead.
49. (1988) 13 E.H.R.R. 379 [28].
50. For demonstration of this point see Cambridge Papers at p. 56.
51. [1999] 3 W.L.R. 175 at 190E, per Lord Bingham of Cornhill.
52. (1988) 51 D.L.R. (4th) 481.