Unlocking the human rights floodgates?

Criminal Law Review

Volumn , Issue FEB., 2000, Pages 71-84

  Kerrigan, Kevin ^a  

^a NORTHUMBRIA UNIVERSITY   (United Kingdom)

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EID: 25844501530     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (68)

1. Section 22(2) provides that sections 18, 20, 21(5) and section 22 itself come into force on the passing of the Act.
2. Section 22(3) provides for the remainder of the Act to come into force on such day or days as the Secretary of State may appoint. In a Home Office press release on May 18, 1999, the Home Secretary stated his intention to bring the Act into force on October 2, 2000.
3. Section 6(3)(b).
4. The rights are in Articles 2-12 and 14 of the Convention.
5. Protocol 1 (property, education, elections) and Protocol 6 (death penalty).
6. A claimant may wish to rely on section 7(1)(b) to question the lawfulness of the actions of a public authority as a collateral issue in private law proceedings.
7. Note also section 6(6), which provides that an act includes a failure to act.
8. This will prevent a defendant relying on section 7(1)(b) in a private prosecution except to the extent that the court is satisfied that the prosecutor is a public authority.
9. See R. v. Secretary of State for the Home Department, ex p. Brind [1991] 1 A.C. 696. For a critique of that decision and an assertion of a more rigorous role for Convention principles in domestic law, see Murray Hunt, Using Human Rights in English Courts, (Hart Publishing, 1997), esp. chapter 6.
10. In view of the potentially dramatic impact of the provision suggested in this paper, it is surprising and disappointing that the section was subject to no debate as the Bill went through its Parliamentary stages.
11. The defendant would normally be charged by the police or summonsed by the court at the request of the CPS.
12. For example, applications for disclosure orders under section 8 of the Criminal Procedure and Investigations Act 1996.
13. Section 7(6)(b).
14. [1999] 3 W.L.R. 175.
15. [1999] 3 W.L.R. 175 at 187C.
16. R. v. DPP, ex p. Kebeline [1999] 4 All E.R. 801.
17. This, presumably, is a mis-print and is intended to refer to the 1998 Act.
18. Note that a section of Lord Hobhouse's judgment appears to disagree with the view of the majority. He said, "Neither s.6 nor s.7 is retrospective; nor is, for that matter, s.3, as Lord Lester's argument recognises. It is therefore difficult to maintain that the prosecution and trial of the defendants in accordance with s. 16A has involved any unlawful conduct or will do so or will provide them with any ground for having any convictions resulting from their trial quashed" [1999] 4 All E.R. 801 at p.858.
19. The Divisional Court in Kebeline had taken a remarkably interventionist approach on Convention principles when it held that, pending the coming into force of the 1998 Act, the DPP could not lawfully give consent to prosecutions under legislation that was contrary to the presumption of innocence in Article 6(2). This suggested that the Human Rights Act and section 7 in particular would have a major impact on judicial decision making even prior to it coming into force. However, the House of Lords unanimously overturned this decision, mainly on the basis that the Director's decision was not reviewable. The defendants would be left to seek remedies for incompatibility (if there was incompatibility) within the criminal justice system.
20. In Smith (Wallace Duncan), The Times May 20, 1999, the Court of Appeal stated that it had a discretionary power to adjourn the hearing of an appeal if practical considerations required it. It is doubtful that awaiting a statute advantageous to the appellant would be seen as a practical necessity.
21. Criminal Appeal Act 1995, ss.9-13.
22. Smith (Wallace Duncan), The Times ibid. section 13(1)(a) and (b).
23. Criminal Appeal Act 1968, s.18(2).
24. Crown Court Rules 1982, r.7.
25. Magistrates' Courts Act 1980, s.111(2) and (3).
26. Criminal Appeal Act 1968, s.18(3).
27. Crown Court Rules 1982, r.7(5).
28. Michael v. Gowland [1977] 1 W.L.R. 296.
29. [1997] 1 Cr.App.R. 302.
30. [1996] Crim.L.R. 726.
31. [1997] 1 Cr.App.R. 240.
32. per Lord Bingham C.J. at [1997] 1 Cr.App.R. 240.
33. See to similar effect, Campbell (No.2) [1997] Crim.L.R 227.
34. [1997] Crim.L.R. 134 at 136.
35. (1977) 65 Cr.App.R. 185.
36. Goodchild (1977) 64 Cr.App.R. 100.
37. (1977) 65 Cr.App.R. 185 at 189.
38. [1997] A.C. 558.
39. [1997] 2 Cr. App. R. 266
40. The Times, October 7, 1998.
41. [1995] 4 All E.R. 939.
42. See fn. 9, above.
43. [1980] A.C. 402.
44. [1997] A.C. 558 at 581-582. See also the similar approach of Lord Slynn at p.571H and Lord Nicholls at p.583B-D.
45. See also Gokal in which Ward L.J. said, "Although, therefore, there was no need to refer to the Convention or to the European Court of Human Rights decisions, there is nothing there to concern us . . ." [1997] 2 Cr.App.R. 266 at 280.
46. The Commission and Court merged in November 1998 when Protocol 11 of the Convention came into effect.
47. See, for example, Saunders v. United Kingdom (1996) 23 E.H.R.R. 313. In that case the Court said it could not, "speculate as to the question whether the outcome of the trial would have been any different . . . and . . . underlines that the finding of a breach of the Convention is not to be taken to carry any implication as regards that question. It therefore considers that no causal connection has been established between the losses claimed by the applicant and the Court's finding of a violation." (para. 86).
48. See Schenk v. Switzerland (1988) 13 E.H.R.R. 242, para. 48.
49. See Handyside v. United Kingdom (1976) 1 E.H.R.R. 737.
50. For example, a wide margin of appreciation was given to the domestic courts in deciding the measures necessary to control dangerous sexual acts in Laskey, Jaggard and Brown v. United Kingdom (1997) 24 E.H.R.R. 39, paras 41-44.
51. [1999] 4 All E.R. 801 at 844.
52. In Morrissey, The Times, May 1, 1997, the Court of Appeal ruled that it could not give effect to the European Court decision in Saunders, above note 47, by interpreting section 78 of PACE 1984 in a way that required the exclusion of compulsorily obtained evidence.
53. See, for example, John Murray v. United Kingdom (1996) 22 E.H.R.R. 29.
54. The Divisional Court in R. v. Stratford JJ, ex p. Imbert, February 8, 1999, Smith Bernal transcript, was firmly of the view (albeit obiter) that the present rules are Convention compliant.
55. Hugh Latta Starrs And James Wilson Chalmers Complainers; vs. Procurator Fiscal, Linlithgow, Transcript, http://www.scotcourts.gov.uk/
56. Scotland Euro Ruling Hits Court Cases, BBC Online, November 15, 1999 - www.bbc.co.uk
57. Human Rights Act 1998, s.8(1).
58. Criminal Appeal Act 1995, s.13(1)(c).
59. Scotland Euro Ruling Hits Court Cases ibid., s.13(2).
60. In respect of references of a sentence the argument must be based on a point of law and instead of new evidence the Act speaks of new information.
61. Criminal Appeal Act 1995, S.13(1)(a) and (b).
62. Scotland Euro Ruling Hits Court Cases ibid., s.14(2)(a) to (c).
63. See The Work of the Criminal Cases Review Commission, Home Affairs Select Committee, First Report, March 23, 1999, HMSO. Note also the Home Secretary's foreword to the CCRC Management Statement: "I believe that that the CCRC will come to play a key role in enhancing public confidence in the integrity of the criminal justice system as a whole, as Parliament intended . . ."
64. Although the present discussion concentrates on Human Rights Act issues, it is possible that in an appropriate case, the Commission would take a similar view in cases where the law has been corrected by a later decision such as the examples identified by Professor Smith. See text of fn. 34, above.
65. Criminal Appeal Act 1995, s.9(2) and (3).
66. Criminal Appeal Act 1968, s.2(1) as amended by the Criminal Appeal Act 1995.
67. See Blackstones Criminal Practice 1998, paragraphs D.22.40-47 for a discussion of the variety of reasons justifying interference with sentence.
68. Criminal Appeal Act 1968, s.11(2) and (3). Section 11(2) specifically permits a conviction to be referred even if the applicant had pleaded guilty.