The Human Rights Act 1998 has significant ramifications for all elements of police operate. Police Investigation, the conduct of prosecution and the presentation of proof in court, have all conflicted with Human Rights.
In the context of criminal circumstances the primary regions of Human Rights involve:
- Suitable to a fair trial (Write-up six of the Convention)
- Suitable to privacy (Write-up eight of the Convention)
- Suitable to an efficient remedy (Write-up 13 of the Convention)
The courts are essential to ‘read and give effect’ to major legislation in a way which is compatible with the Convention Rights ‘so far is doable to do so’.
Examination of the effects of the Convention on the Criminal Justice Method reveals the troubles, of which some will be touched upon in this discussion. Police surveillance has currently fallen foul of Write-up eight in a quantity of circumstances. In the circumstances of Kahn v United Kingdom 2000, and the related case of P.G. and J.H. v United Kingdom 2001 (The Instances, 19th October 2001), it was held that there had been a breach of Write-up eight and Write-up 13, but not a violation of Write-up six. It was held that the applicant’s ideal to respect for private and loved ones life, as assured by Write-up eight of the Convention, had been violated. This is just for the reason that the domestic law did not regulate the use of covert listening devices at the time of the applicants conviction. The European Court did even so obtain that there had been no violation of Write-up six, that the applicant did have a fair trial. I can’t assistance but feel that these two judgements contradict every single other. If the proof violated Write-up eight and the case was completely primarily based upon the weight of this proof, then how could it have been a fair trial?
In the case of Kahn v U.K. Lord Nolan stated to the Home of Lords: ‘The sole trigger of this case coming to your Lordships Home is the lack of a statutory technique regulating the use of surveillance devices by the police. The absence of such systems is astonishing, the additional so in view of the statutory framework which has governed the use of such devices by the Safety Service given that 1989, and the interception of communications by the police as properly as by other agencies given that 1985.’
It would seem that more than the years, the police have had an ad hoc technique with regards to surveillance tactics and for that reason the European Court has highlighted basic flaws by way of the Convention, in relation to the procedures that have been undertaken by the police with regards to the use of surveillance.
The operate of the safety solutions has been carried out legally beneath the umbrella of legislation, for that reason permitting surveillance of suspects. The police do not seem to have carried out their operate legally, for that reason the European Court is setting examples in circumstances like the above, the primary principle getting that a physique can’t carry out illegal acts in order to acquire a legal resolution (e.g. a conviction). On the other hand, the Regulation of Investigatory Powers Act 2000 gives the police with suggestions on the topic of surveillance, so there really should not be a dilemma now. The circumstances that the European Court is hearing are convictions prior to this Act was processed.
In the case of Condron and A different v United Kingdom 2000 it was held that there had been a violation of Write-up six of the Convention. This was for the reason that the judge in the case had not appropriately directed the jury on the problem of the defendant’s silence through a police interview he had stated that silence was unfavorable. He had stated this with reference to section 34 of the Criminal Justice and Public Order Act 1994.
The 1st point that I would like to make is the reality that the defendants had been withdrawing from heroin which was the cause that their solicitor had advised them to stay silent. Most crimes are drug connected, this could open floodgates in the reality that they remained silent for the reason that they had been ‘drugged up’ just about every criminal could abuse this ideal. This could be the primary cause for the judge to have directed the jury in this way, to protect against the floodgates. This would also place stress on the legal advisor, just for the reason that if the silent interview is carried out on the advise of the solicitor, then it can be brought up and employed against the defence. On the other hand, if I had been a juror I would not feel that maintaining silent was good, and I would agree in this case that the judge really should not have imposed his view on the jury.
In the case of Atlan v United Kingdom it was held by the European Court, that there had been a violation of Write-up six of the Convention for the reason that the prosecution had failed to let the trial judge rule on the query of the disclosure of proof. The prosecution just really should have followed procedures the judge decides no matter if or not the proof attracts public interest immunity, as in the case of Conway v Rimmer. If the process had been not followed properly then we would be getting related convictions and unfair trials as in the seventies and eighties, for instance, the Gilford 4, and the early nineties as in the case of Edwards v United Kingdom (1992).
In the case of entrapment, there is no defence for this in England and Wales. On the other hand, the Convention has applied Write-up six to protect against this, as in the case of Texiera de Castro v Portugal (1998). ‘Even the clear public interest in fighting drug-trafficking could not justify employing proof obtained as a outcome of police entrapment.’ I feel that this is ideal but only based on the situations. I really feel that if a drug-trafficker is a properly identified ‘heroin dealer’ and the final resort for the police to cease him is by ‘agent provocateur’, then I feel that this really should be justified.
By joining the European Union, the government took on board the laws, provision, directives and so on of the Neighborhood. I feel that the courts will go as far as they have to in order to abide and interpret these laws into ours. My view is that to have yet another physique of law maintaining an eye so to speak, on ours is great. There is much less likelihood of unfair trials, policing and government legislation, and additional likelihood of fair and appropriately followed procedures inside the law and order of this nation.