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

Taking a "Balanced" View of the Public Interestprivilege against self-incrimination worthy of its status as afundamental right? Should exceptions be made to it? Is thepresumption of innocence worth preserving in its present form?If so, should it not be taken more seriously, and exceptionsscrutinised with greater care? Does the right to legal aid andassistance in Article 6(3) go far enough?This re-appraisal ought to extend to considering the claims ofother rights to be given the status of "fundamental rights". Arecent example of this is to be found in Protocol 7, Article 4,which introduced into the Convention the "right not to be triedor punished twice" (discussed in the first lecture, part D10).Other candidates are the right not to be subjected to disproportionatepunishment, for which there is scattered recognition butno clear statement 128 ; the right not to be subjected to criminalconviction without proof • of fault (or, at least, not to beimprisoned for a criminal offence without proof of fault); and anumber of rights connected with methods of investigation andinterrogation, including the use of deception. Issues of this kindmust be brought into the mainstream of human rights discussion:democratic processes ought to, as it were, take them backfrom the judicial fora in which they too frequently rest. Publicand professional debate about the recognition and contents ofbasic rights is vital if the European Convention is not to becomedisastrously cut off from the democratic countries that aresubject to it, or to become so remote from the issues affectingcriminal investigation that its precepts are no longer recognisedas truly fundamental.1 Although that has happened in the aftermath of the events of September 11,2001, in relation to anti-terrorism measures. See the Home Secretary, DavidBlunkett, reported in The Times, September 24, 2001, p.l, who "warned Labourbackbenchers worried about the possible violation of human rights that failureto act would allow terrorists to 'make a monkey out of us'", and subsequentlyproposed a derogation from Art. 5 to allow the detention without trial ofcertain foreign nationals, a derogation that has now taken effect under theAnti-Terrorism, Crime and Security Act 2001.2 (1996) 22 E.H.R.R. 293.3 A draft bill, put out for comment by the Home Secretary, will consolidate andexpand these confiscation powers: Proceeds of Crime Bill 2001.4 Phillips v. U.K., judgment of July 5, 2001; the dissenting judges make apowerful case for regarding the procedure as criminal, even though they didnot differ as to the result of the case. See also Benjafield [2001] 2 Cr.App.R. 7.5 The Labour Party, A Quiet Life (1995).6 See the discussion of Brogan v. U.K. and other decisions in Chap. 2.7 1 am grateful to Caroline Fennell and her unpublished doctoral thesis for theseperspectives.133