Human Rights Legal Guidance
Please note this is the updated Human rights chapter as of 18/08/08
- Principle
- Code for Crown Prosecutors - Considerations
- The European Convention on Human Rights
- The Human Rights Act 1998
- Effect of the legislation on the criminal law and relevant ECHR Articles
- Rights that may be engaged
- The forms that challenges may take
- Convention challenges the Magistrates' Court's decision
- Convention challenges at the Crown Court
- General principles of interpretation
- Guidance
- Application to the Review Process
- Bail
- Fair trial principles
- Scope of Article
- The right to legal representation and legal aid
- Presumption of innocence and the reversal of the burden of proof
- Trial within a reasonable time
- The protection against self-incrimination
- Contempt of court
- Jury service
- Disclosure of unused material
- Hearsay evidence and absent witnesses
- Anonymity of witnesses
- Exclusion of evidence
- Hearings in camera
- Appeals
- Public order
- Race hatred
- Obscenity
- Extradition
- Recommendation for deportation
- Sentencing
- Useful Links
Principle
Code for Crown Prosecutors - Considerations
The Code provides:
"The Crown Prosecution Service is a public authority for the purposes of the Human Rights Act 1998. Crown Prosecutors must apply the principles of the European Convention on Human Rights in accordance with the Act." (at 2.6)
The European Convention on Human Rights
The European Convention on Human Rights and Fundamental Freedoms 1950 (ECHR) was adopted by the Member States of the Council of Europe in 1950, and ratified by the United Kingdom in 1951. Unusually for an international convention, it provides a mechanism for individual citizens to enforce their rights against member states. (Archbold, 16-1 - 16-4)
The Human Rights Act 1998
Generally
The Human Rights Act 1998 (HRA) gives further effect in domestic law to the rights and freedoms guaranteed under the ECHR. It allows individuals to enforce their ECHR rights in British courts rather than having to go to the European Court of Human Rights (ECtHR) in Strasbourg. (Archbold, 16-5)
Section 3 of the Human Rights Act 1998 - interpreting legislation
Section 3(1) imposes an obligation on the courts to read and give effect to primary legislation in a manner which is compatible with the Convention rights whenever it is "possible" to do so. (Archbold, 16-15 - 16-17)
Section 4 of the HRA - incompatible legislation
Where it is impossible to interpret primary legislation in a way which is compatible with Convention rights, the High Court, the Court of Appeal and the House of Lords have power to grant a declaration of incompatibility. Lower courts, including the Crown Court, cannot make a declaration of incompatibility. Whether or not such a declaration is made, the legislation remains in force. If such a declaration is made, it is for Parliament to pass a remedial order to change the law. However, if secondary legislation, i.e. statutory instruments or rules, is found to be incompatible, it can be declared invalid and cease to have effect. (Archbold, 16-18 - 16-20a)
Section 6 - Application to Public Authorities
Section 6(1) of the HRA makes it unlawful for a public authority to act in a way that is incompatible with a Convention right, unless a provision of primary legislation means that the authority could not act differently. The CPS is considered a public authority for the purpose of this section. <refer to Code for Crown Prosecutors, ante> (Archbold, 16-21 - 16-23)
Section 7 - the victim principle
See infra, "the concept of victim".
Effect of the legislation on the criminal law and relevant ECHR Articles
Every Article of the Convention has implications for the criminal law. However prosecutors should be aware that the following Articles are concerned specifically with criminal law and procedure: Article 5 provides safeguards against arbitrary arrest and detention; Article 6 provides guarantees of a fair trial; it also confirms the presumption of innocence.
Additionally, Article 2 (right to life), Article 3 (prohibition of torture and degrading treatment), Article 7 (prohibition of the retroactive application of criminal offences), Article 8 (right to respect for private and family life), Article 9 (right to freedom of thought, conscience and religion), Article 10 (right to freedom of expression) and Article 11 (right to freedom of assembly and association) have all given rise to challenges to particular criminal offences and procedures.
Rights that may be engaged
There are three categories of Convention rights. These are absolute rights, qualified rights and "special" rights.
Absolute rights - these rights cannot be interfered with by a public authority. (see Articles 2, 3, 4, 7)
Qualified rights - these rights may, on occasions, be interfered with under the terms of the particular Article involved. (See e.g. Articles 8, 9, 10 and 11)
"Special" rights - these rights are derogable, but otherwise unqualified. This means that they cannot be balanced against other public interests. The right to liberty and the right to a fair trial are "special" rights. (See Articles 5 and 6)
The forms that challenges may take
A defendant who is dissatisfied with the decision of the domestic court may still petition the Strasbourg Court claiming a violation of her/his Convention rights. However, before that can be done a defendant must show that all domestic remedies have been exhausted. <See European Courts guidance>
There are several ways in which such a challenge can be raised within a prosecution itself:
- by objecting to the issue of a summons, (R v. Chief Metropolitan Magistrate ex parte Choudhury (1991) 1 Q.B. 429);
- by moving the judge to quash an indictment or a count thereof for a common law offence;
- by using the Convention as a substantive defence to a common law offence, (Van Ooslerwijk v. Belgium(1980) 3 E.H.H.R. 557 para. 3);
- by using the Convention as an aid to statutory construction. Where a statutory offence can be construed so it conforms with the Convention, the courts should adopt such a construction notwithstanding contrary authority;
- by claiming that a particular statutory offence involves a breach of the Convention,(Laskey and others v. United Kingdom (1997) 24 E.H.H.R. 39)
Convention challenges the Magistrates' Court's decision
The prosecution can challenge a Magistrates' Court ruling on a Convention violation by an appeal to the Divisional Court by way of case stated. Judicial review is also an option, although appeal by case stated should constitute a more appropriate remedy as it enables the facts as found by the magistrates to be placed before the Divisional Court.
It is open for the defence to challenge a Magistrates' Court ruling after a conviction by an appeal to the Crown Court in the usual way.
Convention challenges at the Crown Court
While Convention issues can be raised during a voir dire, it is clear that pre-trial hearings are being resorted to for this purpose. Such hearings are providing an appropriate mechanism for issues arising out of the Convention to be canvassed in advance of the trial itself and for the judge to make a binding ruling (section 40 Criminal Procedure and Investigations Act 1996).
There is no appeal mechanism to the Court of Appeal on a binding ruling made by a judge at a pre-trial hearing, nor to the Divisional Court, on a matter relating to a trial on indictment.
General principles of interpretation
Strasbourg jurisprudence must be taken into account
The decisions of the European Court and Commission of Human Rights and the Committee of Ministers of the Council of Europe must be taken into account by a British court considering a Convention right. These decisions have said, amongst other things, that the Convention is a living instrument that must be interpreted in the light of present day conditions. This is relevant to fair trial rights, as the requirements of fairness have evolved, and the importance of the appearance of fairness has grown. The European case law also says that Convention rights should be interpreted in view of their purpose, which is to protect individual rights, maintain the rule of law, and uphold the ideas and values of a democratic society.
The "margin of appreciation"
The doctrine of "margin of appreciation" is applied by the ECtHR, but is not available to domestic courts. The doctrine allows each state a degree of discretion when taking action that could affect a Convention right. To give effect to this, a "margin of appreciation" is permitted when assessing a situation, while still allowing overall supervision under the Convention(Handyside v. United Kingdom (1976) 1 E.H.R.R. 737). (Archbold, 16-30)
The concept of a "victim"
Section 7 of the HRA provides that only a person considered a victim can bring proceedings against a public authority under the HRA, or rely on a Convention right in any legal proceedings. A victim is someone who would be considered as such by Article 34 of the ECHR, which requires that the person is directly affected by the act in question. A victim can include a company as well as an individual and may also include a relative of the victim where a complaint is made concerning their death.
A victim may also include a person who is at risk of being directly affected by a measure, even if they have not, as yet, been so affected.
An organisation or interest group or trade union which is not itself a victim, cannot bring a case. However it may provide legal or other advice to a victim. (Archbold, 16-31)
Guidance
Application to the Review Process
When you review a file you should:
- consider whether the legislation is compatible with the Convention;
- consider which Convention rights might be engaged. Remember to consider as many differing viewpoints as possible;
- consider whether the right is absolute, qualified or special;
- if a special right may be engaged, consider whether the interference falls within any specified exception and is prescribed by law;
- consider whether there is domestic or Convention case law that may be relevant to the rights;
- apply the Code tests taking into account both the rights and the case law;
- ensure that the details of the review process are marked on the file.
Recording Reasons
Convention challenges to your decisions are likely to arise. You will only be able to defend the decisions you make if it is clear how you reached them. You must therefore ensure that a detailed record of the reasoning behind the decisions taken in connection with a prosecution are recorded on the file, either by a full endorsement or by a file note. It is not sufficientmerely to note what decision was made.
If you decide to pursue a prosecution where ultimately the legislation is found to be incompatible, section 6(2) of the HRA gives you some protection from allegations that you were acting illegally. However if you have not recorded how you reached the decision to prosecute it will be hard to show that you have satisfied your legal duty to act in a way which is compatible with the Convention.
Defence request for disclosure of reasons on review
The general common law position is that there is no duty to disclose the reasons for advice by the decision-makers involved in administrative decisions. However, there is a growing trend towards a greater openness in the making of such decisions and an emphasis upon fairness, see Stefan v. GMC (1999) 1 W.L.R. 1300.
In this context, Article 2 imposes a duty on the state to conduct an effective investigation into alleged breaches of the right to life, and to prosecute and sanction those responsible. In exceptional circumstances, for example where there has been a death in custody and it is followed by a decision not to prosecute, it may be appropriate that reasons for the decision are given as a matter of openness and fairness, see Leander v. Sweden [1987] 9 E.H.R.R. 433; Allenet de Ribemont v. France, [1995] 20 E.H.R.R. 557; Z v. Finland[1997] 25 E.H.R.R. 371; R v. Director of Public Prosecutions ex parte Manning and another T.L.R. 19 May, 2000; R v. Director of Public Prosecutions ex parte C, LTR 10 March 2000;R v. Director of Public Prosecutions, ex parte Manning and Melbourne, [2001] 3 WLR 463; Keith Hall v. United Kingdom, Application No. 28772/95.
Similarly,where information that should be given, is not in fact given by a public authority, this could amount to a breach of the guarantee to receive information under Article 10. However, the exercise of the freedom to receive and impart information may itself be subject to restrictions or penalties prescribed by law, for example, for the protection of the reputation or rights of others and for preventing the disclosure of information received in confidence.
In every case where there are competing interests, a balancing exercise must be carried out and only so much information as is necessary, should be disclosed - see, inter alia, R v.Chief Constable of North Wales and Others, ex parte AB and Another, [1998] 3 All E.R. 310; Bunn v. BBC and Another, T.L.R. 23 June 1998;McGinley and Egan v. United Kingdom[1998] 27 E.H.R.R. 1; Wood v. Chief Constable of the West Midlands[2004] E.M.L.R. 17 (QBD).
Bail
Article 5(3) limits pre-trial detention. A person charged with an offence must be released pending trial unless the state can show that there are "relevant and sufficient" reasons to justify his continued detention: Wemhoff v. Germany, 1 EHRR 55 - see also recent case of Gault v. UK(App No 1271/05). This requires the exercise of a judicial discretion, so blanket rules against bail are not allowed. (Archbold, 16-52)
Prosecutors should be aware that there are four categories of acceptable reasons for a refusal of bail:
- Risk that the accused will fail to appear (Letellier v. France, 14 EHRR 83)
- Risk of interference with the course of justice (Wemhoff v. Germany, ante), for example, interfering with witnesses or destroying relevant evidence
- Prevention of further offences (Matznetter v. Austria, 1 EHRR 198; Toth v. Austria, 14 EHRR 551)
- Preservation of public order (Letellier v. France, ante), for example, in exceptional cases where there could be public outcry and disorder if the accused is released
Permissible conditions of bail under Article 5(3) include:
- a requirement to surrender travel documents and driving documents (Stögmüller v. Austria, 1 EHRR 155; Schmid v. Austria, 44 DR 195);
- the imposition of residence requirement (Schmid, ante); and
- the provision of a sum of money as a surety and security (Wemhoff v. Germany, ante).
Fair trial principles
Scope of Article 6
Article 6 only applies to proceedings involving a criminal charge. As well as criminal trials, this includes the issue of a recommendation for deportation if this is made in criminal proceedings, prison disciplinary proceedings, proceedings that could lead to imprisonment for non-payment of the community charge, or for refusal to be bound over to keep the peace, certain tax evasion proceedings, and proceedings for imposition of a penalty under section 32 of the Immigration and Asylum Act 1999.
Article 6 does not apply to proceedings for anti-social behaviour orders, sex offender orders, football banning orders, civil recovery orders, proceedings under Schedule 3 of the Customs and Excise Management Act 1979 for forfeiture of goods, and proceedings under section 6(1) of the Company Directors Disqualification Act 1986, amongst others. Case law has held that proceedings under section 4 or 4A of the Criminal Procedure (Insanity) Act 1964 to determine whether the accused is unfit to plead, and if so, whether he did the act charged, do not involve the determination of a criminal charge for the purposes of Article 6, R.v. H. [2003] 1WLR 411.
Article 6 may but does not necessarily apply to preliminary hearings concerning trial arrangements and procedural matters: X v. UK, 5 EHRR 273. (Archbold, 16-60 - 16-63).
The right to legal representation and legal aid
The rights guaranteed by Article 6(3)(c) are not unqualified. The court may place reasonable restrictions on the right of an accused to appear without a lawyer in a complex case: Croissant v. Germany, 16 EHRR 135; Philis v. Greece, 66 DR 260. An appointment of counsel which does not reflect the wishes of the accused may offend Article 6(1) unless there is proper justification for the restriction. Furthermore, an accused may be required to have legal representation, notwithstanding his wish to represent himself, where a case is particularly complex (Croissant v. Germany).
The provision has been interpreted as requiring confidentiality of communications between an accused person and his lawyer: see S v. Switzerland, 14 EHRR 670, where the Court held that eavesdropping or interception by the police violated "one of the basic requirements of a fair trial in a democratic society" (at para. 48).
The obligation to provide legal aid is subject to the means of the defendant. In order to satisfy Article 6(3)(c), legal representation provided by the state must be effective (Archbold, 16-86 - 16-90)
Presumption of innocence and the reversal of the burden of proof
Article 6(2) guarantees the presumption of innocence in criminal proceedings. It applies only to a person who is subject to a charge, and does not apply at the investigation stage. <for the meaning of "charge", see Archbold, 16-73>
You are likely to face challenges in relation to offences which shift the burden of proof onto the accused to establish a specific defence.
Article 6(2) does not prohibit rules which transfer an evidential burden to the accused, provided the overall burden of proving guilt remains with the prosecution: Lingens and Leitgens v. Austria, 4 EHRR 373, at para. 4. Neither does Article 6(2) necessarily prohibit the operation of presumptions of law or fact. However, any rule which shifts the burden of proof, or which applies a presumption operating against the accused must be confined within reasonable limits: Salabiaku v. France, 13 EHRR 379, at para. 28; R v. DPP, ex p. Kebilene[2000] 2 AC 326; R v. Lambert[2002] 2 AC 545, R v. Johnstone[2003] 1 WLR 1736 (Archbold, 16-77 - 16-79).
For instance, provisions under the Official Secrets Act 1989 were held to be incompatible with Article 6(2) if taken to reverse the burden of proof, so they had to be interpreted as imposing an evidential burden only on the defendant: R v. Keogh[2007] 1 WLR 1500.
Trial within a reasonable time
It may be argued that the failure of the state to meet its obligations in respect of the rights set out above and any consequent delay in the defendant being ready for trial constitute grounds for finding that there was a breach of Article 5 or 6.
The general principle is that a person should not remain for too long under a state of uncertainty about his fate, (Stogmuller v Austria (1969) 1 E.H.R.R. 155). You should also be aware that the reasonable time guarantee runs from the moment that an individual is subject to a "charge" within the meaning of the Convention. For the meaning of a "charge", see Deweer v. Belgium, 2 EHRR 439; Eckle v. Germany, 5 EHRR 1; Coriaglano v. Italy, 5 EHRR 334; Foti v. Italy, 5 EHRR 313; Ewing v. UK, 10 EHRR 141 - it is usually the date of charge by the police, but in certain cases it may be another date, such as the date of initial arrest. The reasonable time guarantee runs until the conclusion of any appeal. With regard to unreasonable delays in the appellate stages of proceedings, see Mellors v. UK(2004) 38 EHRR 11; Massey v. UK, The Times, November 24, 2004, ECtHR). (Archbold, 16-64)
The protection against self-incrimination
The right to a fair trial includes "the right of anyone charged with a criminal offence ... to remain silent and not to contribute to incriminating himself": Funke v. France, 16 EHRR 297. In Saunders v. UK, 23 EHRR 313 (evidence obtained by compulsory questioning by DTI inspectors was not admissible in the criminal trial), the ECtHR held that the right presupposed that the prosecution in a criminal case must prove its case without resort to evidence obtained through methods of coercion and oppression in defiance of the will of the accused. However, note the recent judgment of Brown v. Stott[2003] 1 AC 681, PC, where it was held that the admission of answers obtained pursuant to powers of compulsory questioning under section 172 of the Road Traffic Act 1988 was compatible with Article 6. (Archbold, 16-69 - 16-70) See also O'Hallaran v. UK(ECtHR Grand Chamber) 29 June 2007.
As to adverse inferences that may be drawn from silence, see Condron v. UK[2001] 31 EHRR 1 (very careful directions needed to the jury), Beckles v. UK[2003] 36 EHRR 13 and R. v. Beckles[2005] 1 Cr.App.R. 23.
Contempt of court
Media reporting of criminal proceedings plays an important role in the public administration of justice. Comments may be restricted where they are likely to prejudice a fair trial or undermine the confidence of the public in the administration of justice. See Hodgson, Woolf Productions and the NUJ v. UK10 EHRR 503, Ex p. Telegraph Group plc[2001] 1 WLR 1983, AG v Scotcher [2005] 2 Cr.App.R. 35. In relation to Article 10 challenges, see Archbold, 16-131a.
Jury service
The presence of a CPS prosecutor as a member of the jury on a CPS prosecuted trial breaches the Article 6 requirements of an impartial and independent tribunal. The presence of a police officer as a member of the jury may also, in some circumstances, breach the requirements of an impartial and independent tribunal: R v. Abdroikof (Appellant) and another (On Appeal from the Court of Appeal(Criminal Division)) [2007] UKHL 37. http://www.publications.parliament.uk/pa/ld200607/ldjudgmt/jd071017/abdro-1.htm
<see also the HMCS' Interim Guidance>
Disclosure of unused material
The right to a fair trial involves the observance of the principle of "equality of arms". The principle underpins Article 6 and provides a basis for a number of the rights itemised under Article 6(3).
In the context of disclosure this means ensuring that the accused is in a position to prepare for and defend the charges brought by the prosecution. It is clear from the Strasbourg jurisprudence that prosecutors are under a positive duty to place the defence in a position of parity. Non disclosure of evidence relevant to credibility may also raise an issue under Article 6(3)(d): Edwards v. UK, 15 EHRR 417, Op. Comm., para. 50. See, generally, Jespers v. Belgium, 27 DR 61. (Archbold, 16-84)
Hearsay evidence and absent witnesses
The term "witness" in Article 6(3)(d) includes a person whose statements are produced in evidence before a court, but who is not called to give oral evidence: Kostovski v. Netherlands, 12 EHRR 434, at paras 40-41. Article 6(3)(d) gives the accused the right to have such a "witness" called to give oral evidence, and subjected to cross-examination. The right to cross-examine need not be available at the trial itself, provided the witness has been cross-examined at an early stage, such as full committal - see Kostovski, ante. The admission of disputed hearsay evidence (e.g. under the Criminal Justice Act 2003 s.114-6) without the opportunity to cross-examine will not necessarily violate Art 6(3)(d) - depending on the reason for the witness's non-attendance, and whether it creates substantial unfairness for the defendant, R v. Xhabri[2006] 1 Cr.App.R. 26, Grant v. State[2007] 1 AC 1.
However, it does not follow that the admission of documentary hearsay pursuant to these provisions will necessarily amount to a violation of Article 6: Trivedi v. UK, 89 A DR 136; R v. Al-Khawaja (Imad)[2005] EWCA Crim 2697; R v. Tahery (Alireza)[2006] EWCA Crim 529. In keeping with its approach to the interpretation of Article 6(1), the ECtHR will examine the importance of the prohibited hearsay in the context of the proceedings as a whole. (Archbold, 16-91 - 16-93)
Anonymity of witnesses
If the defence is deprived of the information necessary to challenge a witness's credibility, then this will amount to an insurmountable obstacle to a fair trial. In Doorson v. Netherlands, 22 EHRR 434, however, the Court emphasised the need to balance the interests of the accused against any risk to the life, liberty or security of a witness. (Archbold, 16-68) This means that evidence given by anonymous witnesses will not automaticallybe excluded from the proceedings. The Court will look at the proceedings as a whole to consider whether the accused has been afforded a fair trial. The Court will for instance look at whether there were any additional safeguards capable of counterbalancing any handicap to the accused (e.g. the judge has warned the jury that it was necessary to approach the evidence given by the absent witness with care, the witness was cross-examined, or the other party was in a position to challenge or rebut the statement, the conviction may not be based solely or decisively on evidence given anonymously). See R v. Davis[2006] 1 WLR 2130; R v. Cole; R v. Keet[2007] EWCA Crim 1924, 30 July 2007 <see Guidance on Interviewing Victims and Witnesses, and Using Special Measures>
See Van Colle v. CC of Hertfordshire[2007] EWCA Civ 325; Re Officer L (Respondent) (Northern Ireland) [2007] UKHL 36, in relation to the test to be applied when considering granting anonymity to potential witnesses where their right to life is at stake. Where criminal proceedings could cause a risk to a defendant's life, e.g., by disclosing his status as an informant, the prosecution are under an obligation to carry out a thorough examination of the risk before continuing with the prosecution: R (D) v. Central Criminal Court[2004] 1 Cr.App.R. 41. DC.
Exclusion of evidence
Statutory provisions regarding the exclusion of evidence can be found in sections 76, 78, 82 of PACE.
You are likely to be challenged under Articles 3 and 6 where, for instance, it is alleged that a confession has been obtained by oppression. Such a challenge could run alongside a section 76 PACE application: R v. Christou (Anastasis)[1992] Q.B. 979. Moreover, prosecutors should be aware that evidence obtained as a result of surveillance or telephone tapping is vulnerable to challenge under Article 8: Klass v. Germany, 2 EHRR 214; Malone v. UK, 7 EHRR 14; Huvig v. France, 12 EHRR 528.
However, the fact that evidence has been obtained illegally is not a ground for automatic exclusion, although a breach of a Convention right could lead to the exclusion of evidence if it results in unfairness in the proceedings (R v. Sang (1980) AC 402).An interference can in principle be justified in the interests of national security or for the prevention of crime, provided that it is necessary and proportionate and that it is "in accordance with law". For the meaning of "in accordance with law" in this context, see Malone v. UK, 7 EHRR 14. (Archbold, 16-109)
Hearings in camera
The right to a hearing in public is intended to protect litigants "against the administration of justice in secret with no public scrutiny", and to maintain public confidence in the administration of justice: Pretto v. Italy, 6 EHRR 182. The right is subject to the express restrictions set out in the second sentence of Article 6(1) - see X v. Austria(1965) App. No. 1913/63 2 Digest 438, X v. UK15 EHRR CD 113, R. v. Shayler[2003] ACD 79. (Archbold, 16-71)
Appeals
The appeals process in England and Wales may be subject to challenge, mainly on the basis of Article 6 of the Convention.
However, Article 6 does not guarantee a right of appeal. Yet, where domestic law allows for an appeal against sentence or conviction, the appeal proceedings are an extension of the trial process and will be subject to Article 6. (Delcourt v Belgium (1970) 1 E.H.R.R. 355; Condron v United Kingdom (2001) 31 E.H.R.R 1. <See Appeals Guidance>
On whether the CCRC is obliged to refer a case to the Court of Appeal following the ECtHR's finding that the defendant's Article 6 had been violated, see Dowsett v. CCRC[2007] EWHC 1923 (Admin), 8 June 2007, Administrative Court.
Public order
Various pieces of legislation apply to offences involving freedom of expression and assembly, including: the Public Order Act 1986 Part III, the Magistrates Court Act 1980, the Crime and Disorder Act 1998; Section 4 of the Offences Against the Person Act 1861; Section 59 of the Terrorism Act 2000; Part I of the Terrorism Act 2006; the Racial and Religious Hatred Act 2006.
The Convention rights of freedom of expression (Article 10) and freedom of assembly and association (Article 11) may be used to claim that the statutes above are incompatible with the HRA. Both Articles contain specific limitations on these Convention rights, which means they are not absolute. These limitations must be prescribed by law and necessary in a democratic society for one of the specific purposes outlined in Article 10(2) and 11(2) respectively. When reviewing offences that raise these Convention rights, it will be necessary systematically to consider whether these limitations apply to the particular case. (Archbold, 16-129a - 16-132-136)
Race Hatred
Article 10(2) affords limited scope for criminal prosecution in relation to political speech or debate on questions of public interest, see Sener v. Turkey(2003) 37 EHRR 34. The Commission has held that extreme racist speech is outside the protection of Article 10 because of its potential to undermine public order and the rights of the targeted minority: Kühnen v. Germany, 56 DR 205; Glimmerveen and Haagenback v. Netherlands, 18 DR 187. (Archbold, 16-124 - 16-125) See also Connollyv. DPP[2007] EWCH 237 (Admin); DPP v. Collins[2006] 1 WLR 2223, HL. This is therefore of particular relevance when considering prosecuting offences falling under relevant legislation (see "public order" section above).
Obscenity
Potentially obscene material is within the scope of Article 10. Criminal prosecution may be justified for the prevention of crime or the protection of morals, providing it meets the requirements of Article 10 (2). When Article 10 rights are engaged, the justification for any criminal sanction must be "convincingly established", (Sunday Times v United Kingdom (No.2), (1991) 14 EHRR 229, para 50; Scherer v. Switzerland, 18 EHRR 276.(Archbold, 16-123)
If you are prosecuting a case involving allegations of obscenity, you may face a challenge on Convention grounds:
- your decision to prosecute may be challenged by way of judicial review on the basis that the legislation and the Convention are incompatible, and a request made that the High Court should make a declaration of incompatibility;
- a challenge to such a case could be made once the case is before the court, whether by way of a preliminary point, an abuse of process application, judicial review, as a ground of appeal or even in certain circumstances by way of case stated.
Extradition
<See guidance on extradition>
Recommendation for Deportation
If a defendant has family ties in the UK, a recommendation for deportation is likely to violate Article 8(1), and so it must be justifiable under Article 8(2) as necessary and proportionate for the prevention of disorder or crime. See R (Samaroo) v. SSHD, The Times, September 18, 2001. It may also breach the defendant's Articles 2 and 3 rights.
Sentencing
Article 6 continues to apply at the sentencing stage. This does not mean, however, that the practice of sentence taking place after a guilty plea without examination of the evidence violates Article 6: X v. United Kingdom (1975) Application No. 5574/72 3 D.R. 10; R v. Smith[2007] EWCA Crim 2258, 24 August 2007.
Although sentence is a matter for the Court, you should be able to assist the court regarding the legality of sentence, and the options open to the Court. It is likely that most Convention challenges to sentence will be raised on appeal, but it is conceivable that Convention issues could be raised by the defence during mitigation.
Convention issues are most likely to be raised in areas of indeterminate sentencing, discretionary life sentences and extended fixed term sentences. The sentencing of youths and mentally disordered offenders is also an area where Convention issues may arise. The following Articles are particularly relevant: Article 3(McFeeley v. UK, 3 EHRR 161, Price v. UK34 EHRR 53, Keenan v. UK33 EHRR 38, McGlinchey v. UK37 EHRR 41), 4, 5 (R v. Governor of HMP Brockhill, ex p Evans (No 2)[2001] 2 AC 19, HL), 6 (X v. United Kingdom (1972) Application No. 4623/70, 39 DR 66) and 7 (Taylor v. UK(2003) 36 EHRR CD 104), 8 (Hoare v. UK(1997) E.H.R.L.R. 678). <See Sentencing Guide>
Useful Links
The European Convention on Human Rights 1950
The European Court of Human Rights
Please also note that the ECHR e-learning training package is available on the Prosecution Collegewebsite.