CRIMINAL JUSTICE UNDER THE UNITED KINGDOM HUMAN RIGHTS ACT

• Published date: 01 December 2013
• Author: Liora LAZARUS BA (UCT), LLB (LSE), DPhil (Oxon); Fellow and Lecturer in Human Rights Law, St Anne's College and Faculty of Law, University of Oxford. Ryan GOSS BA (Hons I), LLB (Hons I) (Queensland), BCL (Dist) DPhil (Oxon); Lecturer in Law, Australian National University, Canberra; formerly Junior Research Fellow in Law, Lincoln College, Oxford.
• Date: 01 December 2013

The UK criminal justice system has been subject to the protections of the European Convention on Human Rights since the right to individual petition to the European Court of Human Rights was granted to UK citizens in 1966. The Convention rights became the subject of domestic UK litigation with the Human Rights Act 1998. This essay demonstrates how, both before and after the Human Rights Act, UK courts and legislators have sought to reconcile common law approaches to protecting rights and liberties with the approaches of the Strasbourg Court. It uses the development of the case law as an insight into a dynamic institutional dialogue: how interaction with the European Court of Human Rights has shaped the way that UK courts, governments and Parliament have acted on criminal justice issues and vice versa.

I. Introduction

1 The UK criminal justice system has been subject to the protections of the European Convention on Human Rights (“ECHR”/“Convention”) since the right to individual petition to the European Court of Human Rights (“ECtHR”/“Strasbourg”) was granted to UK citizens in 1966. By the time the Convention was incorporated into UK domestic law in 2000, many key battles in the criminal justice system had been won. The key “criminal justice” rights in the Convention are: Art 5 (deprivation of liberty), Art 6 (fair trial rights) and Art 7 (retroactive crimes and punishments). Other rights are very commonly engaged in the criminal justice context. Article 2 protects the right to life, creating positive obligations requiring the criminal law to do the same, and the police to prevent such breaches. Article 2 also regulates the right to self-defence and has commonly been invoked against police action in the course of dangerous arrests. Article 3 prevents torture, inhuman and degrading treatment. It is most commonly invoked in the context of prison treatment and in assessing the nature of criminal punishments. Article 3 has also been invoked to create positive obligations to criminalise rape and associated sexual offences. Article 4 prohibits slavery and enforced labour, and has been recently invoked in the context of human trafficking. Article 8 protects privacy and is particularly important in the regulation of police surveillance; it also has implications for prosecutorial discretion. Other rights such as the right to family life, and the right to freedom of expression, and the right to freedom of religion, are commonly invoked in the prisoners' rights context, and with respect to the shape of the criminal law. Finally, and recently, the right to vote under the Convention has become a flashpoint in human rights politics.

2 Having already shaped much of the criminal justice system as a supra-national Convention, the instrument became the subject of domestic litigation when the Human Rights Act 19981 (“HRA”) became law in the UK. For our purposes, there are three major elements to the HRA.2 First, s 3 provides an interpretative obligation: “[s]o far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”. Second, s 4 creates a declaration of incompatibility, available where a s 3 interpretation was impossible, and primary or secondary legislation was incompatible with Convention rights. Such a declaration does not “strike down” legislation, but encourages the Legislature to consider amendment. Third, s 6 provides that public authorities must not act incompatibly with Convention rights, affording a new ground of judicial review of administrative action. Taken together, it was hoped that these elements would allow for greater protection of human rights within the UK without detracting from the UK's constitutional tradition of parliamentary sovereignty.3

3 Given the UK experience of the Convention at the time of the HRA's enactment, there should have been little doubt in legislators' minds as to the range of implications the Act would have on English criminal justice. However, it has been evident ever since that politicians may have failed to anticipate, or at least downplayed, some of the more far-reaching effects of the HRA. The legislation was designed to “give people in the UK opportunities to enforce their rights under the European Convention in British courts rather than having to incur the cost and delay of taking a case to” Strasbourg, to “enhance the awareness

of human rights”, and to reinforce the Blair government's positioning “the promotion of human rights at the forefront of our foreign policy”.4

4 For 13 years now, therefore, British courts have sought to interpret and implement the Convention's human rights protections, and to do so while taking into account the judgments of the ECtHR.5 It has been an eventful 13 years, particularly in the criminal justice sphere. In the eyes of many, the HRA has taken on a quasi-constitutional status within the UK's unwritten constitutional framework.6 This essay does not seek to summarise the impact of the Convention or HRA exhaustively, but rather identifies a number of key themes evident in UK human rights jurisprudence. It will do this by reference to some key exemplary cases, while also placing these cases in the broader historical perspective of the Convention's longer influence on UK law.

5 This essay demonstrates how, both before and after the HRA, UK courts and legislators have sought to reconcile common law approaches to protecting rights and liberties with the approaches of the Strasbourg court. It uses the development of the case law as an insight into a dynamic institutional dialogue:7 how interaction with the ECtHR has shaped the way that UK courts, governments and Parliament have acted on criminal justice issues and vice versa. The essay is divided between the various stages of the criminal justice system, within which particular recent developments to exemplify these themes are highlighted.

II. Policing

6 Policing in the UK has been the site of a range of crises which have given as much impetus to institutional reform as any vindication of Convention rights.8 Nonetheless, key Strasbourg decisions have operated as serious prompts in the reshaping of police practices. Many of these prompts have come from the victims or potential victims of crime who have relied on Convention rights to raise the standard of

police prevention and investigation strategies.9 Despite what the UK media would have us believe, therefore, Convention rights do not only serve as a “criminal's charter” constraining police action.10 Victims are protected in many respects by the protective obligations to which the Convention gives rise.11 Nevertheless, in several instances the Strasbourg court has made crucial interventions where police powers were seen as too wide or invasive. Two such areas, surveillance and public order policing, have given rise to interesting recent case law which exemplify the complexity of the relationship between domestic courts overseeing a regional human rights instrument, and their relationship to Strasbourg.

A. Surveillance

7 The UK Regulation of Investigatory Powers Act 200012 (“RIPA”) came into force alongside the HRA. It was testimony to the fact that Strasbourg had already done significant work in forcing the UK government to place the surveillance powers of the police and other investigatory agencies on a statutory footing. Article 8 of the Convention, which protects private and family life, privacy of the home and correspondence in Art 8(1), also requires that any limitations be “in accordance with law”. RIPA was designed to address shortfalls in legislation that had developed piecemeal in response to a series of decisions starting with Malone v United Kingdom13 in 1984 and culminating in Khan v United Kingdom14 in 2001.15 There can be little doubt that actions brought under Art 8 were instrumental in bringing surveillance within a legal framework, although the scope of the legislative powers afforded to agencies with surveillance powers remain a matter of controversy.16

8 One area of controversy recently confronted by the ECtHR in Liberty v United Kingdom17 concerned powers under the earlier Interception of Communications Act 1985 that RIPA had incorporated. The Act had permitted “virtually unfettered” powers to the authorities

to intercept communications between the UK and receivers in other jurisdictions. The ECtHR held that the Act was insufficiently clear to provide protection against abuse of power in this respect, or any guidance on how this material might be used or destroyed. Consequently, in the case of discretionary powers, “the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference”.18 The extent to which current RIPA powers have answered Strasbourg's requirements, remains a live issue and may well be tested in the near future with regard to the UK's involvement in the Tempora and PRISM digital surveillance programmes.19

9 Another controversial gap in the surveillance legal framework was exposed in the Marper cases.20 These displayed a sharp contrast between the domestic UK courts and Strasbourg's interpretation of Art 8. Marper dealt with the legality of infringements on Art 8, as well as the proportionality of permissible limitations under Art 8(2), such as those in pursuit of “national security”, “public safety” or “the prevention of disorder or crime”. The question was whether storage of fingerprint, photograph and DNA information on national databases was both legally authorised and proportionate to their aims.

10 Both the UK Court of Appeal (“CA”) and House of Lords (“HL”) found the limitations on Art 8 justified. The UK courts emphasised the limited purposes for which the information was kept (the detection, investigation and prosecution of...