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

Taking a "Balanced" View of the Public Interestpublic concern. However, there should also be concern aboutthe way that governments play upon the increased risk andpropose policies that are unlikely to be effective but which havesome prospects of bringing politicial success. In criminal procedure,as in sentencing, the easy populist route leads to thepromotion of "a punitive 'law and order' stance" designed to"restore public confidence", yet which "routinely den[ies] limitationsthat are acknowledged by their own administrations"(i.e. by the research arms of the very departments which put thepolicies forward). 111 As Andrew von Hirsch argues:If 'law and order' measures lack apparent substantive goals of justiceor crime prevention, and cater mostly to resentment, are theiradvocates being irrational? They are not. The strategies have aninstrumental function, but it is not primarily a substantive one: it isconcerned, instead, with the acquisition of power. Exploiting popularresentment is a way—and, sometimes, unhappily, an effective way—of garnering political support. 112It is not merely, therefore, that many judges and politiciansseem to be willing to give preference to "public interest"arguments over fundamental rights, but also that some of the"public interest" arguments owe more to fear than to risk, andmore to political posturing than to evidence-based policyselection.F. FINDING THE RIGHT BALANCEThe discussion in the preceding section serves to re-emphasise apoint that has been with us since the beginning of these lectures:that serious crimes are a threat to our safety and security, and itis important that the Government should take measures againstit. What we should insist upon, however, is that the empiricalfoundations of the threat are presented clearly, so as to avoidthe tendency to exaggerate for political or other purposes; thatthe need for any proposed measures of enforcement and investigationis documented, so that people can judge the prospectsof those measures being effective (rather than being merepolitical posturing, or playing on people's fears for their safety);and that human rights protections are not lost in the increase ofofficial powers, and are counterbalanced by additionalsafeguards.What should these human rights protections be? These lectureshave been confined to rights in criminal proceedingsunder Articles 5 and 6 of the Convention. In the first lecture I126