The European Convention on Human Rights
Underpinning the whole criminal justice system is the European Convention on Human Rights. Britain was one of the original countries to sign this in 1950 but it has only become directly enforceable in English criminal courts as a result of incorporation in the Human Rights Act 1998.
Until the year 2000, if you felt your human rights had been breached in the conduct of a criminal case you had to petition the European Court of Human Rights in Strasbourg directly, a process that could take as long as five years. Now the police, the CPS and the courts all have a legal duty to act compatibly with your Convention rights at all times. If they fail to comply with this duty you can make your complaint to the court hearing your case at the time and pursue it through the English courts system, although the possibility of petitioning Strasbourg remains if you have exhausted all possible remedies here.
Incorporation also means that the criminal courts have to take account of the Convention, and of any judgements or opinions of the Court in Strasbourg, in interpreting English law so as to comply with the Convention as fully as possible. Where there is an Act of Parliament that makes it impossible to comply with your Convention rights the courts are not entitled to override Parliament but can make a declaration that the law is incompatible with the Convention, so enabling the Government to amend the incompatible law. Only the High Court, the Court of Appeal or the House of Lords can make a 'declaration of incompatibility’.
The most important part of the Convention, in terms of criminal justice, is Article 6, the right to a fair trial. This guarantees a public hearing within a reasonable time and formally states the presumption of innocence. It specifies your minimum human rights, including the rights:
1. To be informed of the case against you in a language you understand.
2. To have enough time and facilities to prepare your defence.
3. To defend yourself and to have representation, free of charge when this is in the
'interests of justice'.
4. To ensure that prosecution witnesses attend and can be cross-examined and to
call defence witnesses on the same terms.
5. To have an interpreter, if necessary, free of charge.
Other articles are also relevant to criminal justice, for instance Article 5 guarantees liberty, except in specified circumstances, which includes custodial sentences after conviction and detention in order to bring you before a court once you have been charged. If you are detained you must be informed as soon as reasonably practicable of the reason for your original arrest and brought promptly before a court which can authorise your detention or release according to law. If you are detained pending trial you must be tried within a reasonable time.
Article 7 guarantees no punishment without law. In other words, you cannot be punished for something that was not an offence at the time you did it or sentenced in excess of the maximum for the offence at the time.
In theory, the English criminal justice system should comply with all the requirements of the Convention. In practice it has been found wanting on a number of occasions. For instance, the Court at Strasbourg has ruled that the way the trial of the children convicted of the James Bulger’s murder was conducted, in an open court and with few concessions to the very young age of the defendants, did not enabled them to participate effectively in proceedings and therefore failed to afford them a fair trial. It has also ruled that persons accused of a second rape or homicide should not be denied the possibility of applying for bail in the English courts. These cases may seem unworthy examples but often the best test of a system of justice is its ability to uphold the rights of unpopular defendants. If these are eroded then all of us are potentially at risk in the future.
If you consider your human rights under the Convention have been breached and you have not been able to gain satisfaction in the English courts then you can still petition the European Court of Human Rights. This has to be done within six months of the final decision complained of. The procedure is mainly in writing, and only a very limited form of Legal Aid may be available to assist you. Should the Court eventually find the UK Government in breach of your rights under the Convention it can order the Government to pay you compensation and your legal costs and the Government has a duty to change English law to bring it into line with the Convention.
Until the year 2000, if you felt your human rights had been breached in the conduct of a criminal case you had to petition the European Court of Human Rights in Strasbourg directly, a process that could take as long as five years. Now the police, the CPS and the courts all have a legal duty to act compatibly with your Convention rights at all times. If they fail to comply with this duty you can make your complaint to the court hearing your case at the time and pursue it through the English courts system, although the possibility of petitioning Strasbourg remains if you have exhausted all possible remedies here.
Incorporation also means that the criminal courts have to take account of the Convention, and of any judgements or opinions of the Court in Strasbourg, in interpreting English law so as to comply with the Convention as fully as possible. Where there is an Act of Parliament that makes it impossible to comply with your Convention rights the courts are not entitled to override Parliament but can make a declaration that the law is incompatible with the Convention, so enabling the Government to amend the incompatible law. Only the High Court, the Court of Appeal or the House of Lords can make a 'declaration of incompatibility’.
The most important part of the Convention, in terms of criminal justice, is Article 6, the right to a fair trial. This guarantees a public hearing within a reasonable time and formally states the presumption of innocence. It specifies your minimum human rights, including the rights:
1. To be informed of the case against you in a language you understand.
2. To have enough time and facilities to prepare your defence.
3. To defend yourself and to have representation, free of charge when this is in the
'interests of justice'.
4. To ensure that prosecution witnesses attend and can be cross-examined and to
call defence witnesses on the same terms.
5. To have an interpreter, if necessary, free of charge.
Other articles are also relevant to criminal justice, for instance Article 5 guarantees liberty, except in specified circumstances, which includes custodial sentences after conviction and detention in order to bring you before a court once you have been charged. If you are detained you must be informed as soon as reasonably practicable of the reason for your original arrest and brought promptly before a court which can authorise your detention or release according to law. If you are detained pending trial you must be tried within a reasonable time.
Article 7 guarantees no punishment without law. In other words, you cannot be punished for something that was not an offence at the time you did it or sentenced in excess of the maximum for the offence at the time.
In theory, the English criminal justice system should comply with all the requirements of the Convention. In practice it has been found wanting on a number of occasions. For instance, the Court at Strasbourg has ruled that the way the trial of the children convicted of the James Bulger’s murder was conducted, in an open court and with few concessions to the very young age of the defendants, did not enabled them to participate effectively in proceedings and therefore failed to afford them a fair trial. It has also ruled that persons accused of a second rape or homicide should not be denied the possibility of applying for bail in the English courts. These cases may seem unworthy examples but often the best test of a system of justice is its ability to uphold the rights of unpopular defendants. If these are eroded then all of us are potentially at risk in the future.
If you consider your human rights under the Convention have been breached and you have not been able to gain satisfaction in the English courts then you can still petition the European Court of Human Rights. This has to be done within six months of the final decision complained of. The procedure is mainly in writing, and only a very limited form of Legal Aid may be available to assist you. Should the Court eventually find the UK Government in breach of your rights under the Convention it can order the Government to pay you compensation and your legal costs and the Government has a duty to change English law to bring it into line with the Convention.
