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

Taking a "Balanced" View of the Public Interest63 R.A. Duff, Trials and Punishments (1986), p. 105.64 The rare case would be when an individual was acquitted through theoperation of a human rights safeguard and there was a significant probabilityof dangerous conduct, which materialised. See lecture 2, pp. 77-80.65 See, e.g. P. Mirfield, Silence, Confessions and Improperly Obtained Evidence(Oxford U.P., 1997), pp. 23-28.66 For recent results, see A. Clancy, M. Hough, R. Aust and C. Kershaw, Crime,Policing and Justice: the Experience of Ethnic Minorities—Findings from the 2000British Crime Survey (Home Office Research Study 223, 2001), Chap. 6.67 cf. Jack Straw, then Home Secretary, in an address to a Civil Service CollegeSeminar, December 9, 1999: "Nor does it matter, I'm afraid, if the institution isin fact much fairer than the perception says. Perception often is reality whenyou're talking about confidence."68 An analogy might be drawn here with the recent determination of the Houseof Lords to insist that strict criminal liability has no place where an offence hasa maximum penalty as high as 10 years' imprisonment: see B v. DPP [2000] 2Cr.App.R. 65, per Lord Nicholls p. 73; R. v. K. [2001] 3 All E.R. 897, per LordBingham para. 23.wPolice and Criminal Evidence Act 1984, s.24.70 ibid., s. 116.71 ibid., s. 8.72 Regulation of Investigatory Powers Act 2000, s. 5(3); cf. s.28 of the same Act,where the directed surveillance of a person may be authorised if it isnecessary "for the purpose of preventing or detecting crime"—as the interceptionof communications is more intrusive, the process of authorisation is moredemanding.73 JUSTICE, Under Surveillance (1998); H. Fenwick, Civil Rights (2000).74 J. Pradel, "The Criminal Justice Systems facing the Challenge of OrganizedCrime" (1999) 69 Revue Internationale de Droit Penal 673.75 It should be noted that U.S. constitutional law has also been held to requirejudicial authorisation and supervision of intrusive surveillance: see Berger v.New York (1967) 388 U.S. 41, and Title III of the Omnibus Crime Control andSafe Streets Act 1968, followed by much state legislation, discussed in M.L.Miller and R.F. Wright, Criminal Procedures (Aspen, 1998), pp. 466-513.76 [2001] 2 W.L.R. 817, discussed at pp. 64-67 above.77 Allen [2001] UKHL 45.78 See the discussion of Dworkin's approach in Chapter 2D (iii) above.79 On the facts of Brown v. Stott this must be a contestable point; the penalty wasa fine, penalty points and possibly disqualification from driving, and there areStrasbourg decisions (set out in Chap. 2B above) suggesting that this issufficient compulsion to destroy the essence of the privilege against selfincrimination.80 (1988) 13 E.H.R.R. 379.81 S. Sedley, "Wringing Out the Fault: Self-Incrimination in the 21st Century",(2001) 52 N.I.L.Q. 107, p. 125.82 Sounders v. U.K. (1997) 23 E.H.R.R. 313, para. 74; see also Teixeira de Castro v.Portugal (1999) 28 E.H.R.R. 101, para. 36.83 cf. Ozturk v. Turkey (1984) 6 E.H.R.R. 409, and the thoughtful comments ofPotter L.J. in Han and Yau v. Customs and Excise Commissioners [2001] EWCACiv. 1048, para. 68.84 See n. 68 above.85 See the many decisions discussed in Emmerson and Ashworth, Chap. 4.86 See, e.g. Mr Straw's speech on the third reading: H.C. Deb., vol. 317, col. 1358.87 In a foreword to Conventional Behaviour: Questions about the Human Rights Act,an Introduction for Public Authorities (Home Office, 1999), quoted in F. Klug,Values for a Godless Age (Penguin, 2000), p. 27.136