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

More documents

Recommendations

Info

Taking a "Balanced" View of the Public Interestcommitted in a commercial or habitual manner, and that theFrench law extending the period of custodial remand, refers tooffences committed in an organised group. In both cases theinterpretation of the relatively broad concepts is crucial, for theycould easily be used in an expansive manner so as to encompasssmall-time repeat offenders who have a few contacts with otheroffenders.The expansion of definitions of key legal concepts would beless of a concern, however, if any special new powers wereaccompanied by special safeguards for suspects anddefendants—along the lines found in various laws in Austria,Norway and Sweden. If appropriate safeguards are introduced,the expansion of definitions is not a way of avoiding rights.However, the trend in this country and some others has been tointroduce enhanced powers of surveillance and investigationwithout going as far as some other European nations to ensurethat individual rights are safeguarded. For example, the Regulationof Investigatory Powers Act 2000 allows intrusions on theArticle 8 rights of individuals in certain circumstances, withoutjudicial supervision (as required by Convention jurisprudence)and without appointing someone whose task is to ensure thatthe rights of those subjected to surveillance are properly maintained.The idea of appointing someone for this kind of purpose,adopted in legislation in Norway and in Austria, 48 was notregarded as necessary for these purposes, 49 although it has beenadopted subsequently as part of the machinery for challengingthe certification of a person as a "suspected internationalterrorist" under the Anti-terrorism, Crime and Security Act2001. 50The response to some of these proposals is likely to take theform of an assertion that greater powers of investigation andspecial procedures are necessary on account of the seriousnessof these crimes, and that it may be necessary to curtail individualrights in order to protect public interests. It is now time toconfront this argument directly.C. MAKING EXCEPTIONS FORSERIOUS CRIME?One basic assumption, sometimes explicit and sometimesimplicit, underlying many judicial and political statements isthat where the public interests in detecting and prosecuting acrime are high—as with serious crimes—the case for individualrights is weaker. To what extent, if at all, should the safeguards108
Taking a "Balanced" View of the Public Interestprovided by the various Convention rights be affected by therelative seriousness of the crime being investigated? Oneresponse to this question is to point out that the Conventionrights are minimum guarantees: it may therefore be appropriateto introduce greater safeguards in some spheres, but the minimumrights should always be guaranteed, no matter howserious or minor the offence is. This seems to be the positiontaken by the Committee of Ministers of the Council of Europe inits recommendation on "Crime Policy in Europe in a time ofchange". Their motivation for examining this subject was theemergence of serious forms of crime in the wake of the greateconomic and political upheavals of the late 1980s and early1990s in the states of Eastern Europe. One of the purposes of therecommendation seems to have been to "steady the ship". Thusrecommendation l(a) begins as follows:1. Every response to crime must conform to the basic principles ofdemocratic states governed by the rule of law and subject to theparamount aim of guaranteeing respect for human rights.2. Therefore, however serious the situation of a society might be withrespect to crime, any measures aimed at dealing with that situationthat do not take account of the values of democracy, human rightsand the rule of law are inadmissible. 51These recommendations recognise that politicians will betempted to take strong measures to combat what is perceived asserious crime, if only to be seen to be taking some "firm action",and that human rights will therefore be at risk. This problem iscertainly not confined to new states in former communistcountries. The provisions of the Anti-terrorism, Crime andSecurity Act 2001 were the object of considerable criticism fromthe Joint Committee on Human Rights, 52 and the Government'sdecision to derogate from Article 5(1) of the Convention (detentionwithout trial of "suspected international terrorists") iscertainly open to challenge on the ground that several governmentstatements about the nature of the terrorist threat contradictthe assertion that, at the end of 2001, this country was in astate of "public emergency threatening the life of the nation", asArticle 15 requires.We have already seen that declarations such as that of theCouncil of Europe cannot be taken at face value. The exhortationcontained in this recommendation is welcome, but itspractical effects will depend on the decisions of Member Statesto follow the spirit rather than the letter of the recommendation.In policy documents in the United Kingdom, for example,references to Council of Europe recommendations are as rare as109
Page 1:
THEKAMLYNHuman Rights, Serious Crim
Page 11:
TABLE OF CONTENTSAcknowledgementsCo
Page 14 and 15:
The Hamlyn Lectures1961 British Jus
Page 16 and 17:
The Hamlyn Lectures1989 Protection
Page 18 and 19:
The Hamlyn TrustProfessor N. Dawson
Page 20 and 21:
Table of CasesBrown (Margaret) v. S
Page 22 and 23:
Table of CasesLooseley [2001] UKHL
Page 24 and 25:
Table of CasesVan Mechelen v. Nethe
Page 26 and 27:
Why bother with Rights when Public
Page 28 and 29:
Page 30 and 31:
Page 32 and 33:
Page 34 and 35:
Page 36 and 37:
Why bother with Rights ivhen Public
Page 38 and 39:
Page 40 and 41:
Page 43 and 44:
Page 45 and 46:
Page 47 and 48:
Page 49 and 50:
Page 51 and 52:
Page 53 and 54:
Page 55 and 56:
Page 57 and 58:
Page 59 and 60:
Page 61 and 62:
Page 63 and 64:
Page 65 and 66:
Page 67 and 68:
Page 69 and 70:
Page 71 and 72:
Page 73:
Page 76 and 77:
Evaluating the Strasbourg and Briti
Page 78 and 79:
Page 80 and 81:
Page 82 and 83: Evaluating the Strasbourg and Briti
Page 118 and 119: Taking a "Balanced" View of the Pub
Page 164 and 165: IndexCriminal Justice and Police Ac
Page 166 and 167: IndexFair trial rights—cont.curta
Page 168 and 169: IndexPublic interest—cont.fundame
Page 175 and 176: Does the United Kingdom StillHave a
show all

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

Create successful ePaper yourself

Delete template?

Save as template?