Human Rights, Serious Crime and Criminal Procedure - College of ...

Evaluating the Strasbourg and British approachesE. HUMAN RIGHTS AND THE CRITICSIn this connection, it is worth asking whether some of thesharpest criticisms of human rights documents—and particularlyof documents such as the European Convention—applyequally to the procedural rights which form the focus of theselectures. Those criticisms are often aimed at the individualisticnature of the rights (arguing that they neglect both the responsibilitiesof citizenship and wider social and economic rights), atthe absolutism with which they are put forward, and at theconsequent heightening of expectations of what rights canpromise. 108 If one applies these criticisms to rights such as theright of a detained person to be brought promptly before acourt, the presumption of innocence, the right of access to alawyer and so forth, their force is somewhat blunted. Theserights to fair criminal procedures are essentially individualistic,since they are intended to safeguard the position of an individualwho finds herself or himself in the hands of State officialsand confronted with a criminal charge. There is nothing in theseindividual rights that is inherently incompatible with the recognitionof wider social and political rights: indeed, in severalhuman rights documents, such as the Charter of FundamentalRights of the European Union (2000), the different kinds of rightsit side by side in a single, integrated declaration.To assert that these procedural rights are essentially individualisticis not to ignore the possibility of conflicts between theserights and other significant interests. Rather than accusinghuman rights advocates of "absolutism", a more telling criticismmight be that qualifications or exceptions to rights tend to beaccepted too readily. For example, the privilege against selfincriminationis declared without qualification in Article 14 ofthe International Covenant on Civil and Political Rights, 109 andyet there is much debate over the extent to which it mightjustifiably be restricted in certain spheres (such as a car owner'sduty to declare who was driving the car at a particular time)where many countries feel that it is in the general interest toimpose this responsibility on those who are car owners, as ameans of enhancing road safety and ensuring the detection ofoffenders. Insofar as these arguments for restricting proceduralrights are successful, it may well follow that the rhetoric ofrights leads people to expect far greater protection than in fact itdelivers. Thus, the strongest criticism to strike at the criminalprocedure rights in Article 5 and 6 is that they may promise farmore than they deliver in practice.There may be an even sharper criticism here. It may notsimply be that realities fail to match the rhetoric. It can be81