HUMAN RIGHTS ACT 1998 and THE YOUTH JUSTICE SYSTEM
The Human Rights Act (the Act) is operational from 2 October 2000.
Its principal effect is to incorporate1 the European Convention on Human Rights (the convention)
into domestic law.
Although the convention dates from the early fifties, the UK did not accept the jurisdiction of the
European court (created to judge alleged breaches of the convention) nor allow its citizens the
right to petition Europe in respect of their grievances until 1966. Since that time there have been
numerous adverse decisions against the UK and in the vast majority of cases, government
reaction has been to accept and reflect them by making appropriate changes to our domestic law
and/or practice and procedures.
In order to have a case considered by the European court it was first necessary to exhaust every
avenue of appeal available in the UK, a process which usually involved delays of many years and
considerable expense. Hence the slogan ‘bringing justice home’ because from 2 October our
domestic courts must reflect the convention rights2 in everything they do.
B Convention Rights
The original rights are set out in the convention. They have been added to over the years and
these are included in what are called Protocols. All those accepted by the UK are set out in the
Schedules to the Act and are listed in summary form in the Schedule to this paper.
C How the rights are preserved
The Act allows the individual to rely upon the convention rights by making it unlawful for any
‘public authority’3 to act incompatibly with them:
S 6 provides that :
It is unlawful for a public authority to act in a way which is
incompatible with a convention right.
S 7 provides that :
A person who claims that a public authority has acted (or proposes to act)
It has been incorporated subject to the supremacy of the Westminster parliament.
See ‘Interpretation ’ below.
The meaning of this term is discussed in the ‘Public Authority’ section below.
in a way which is made unlawful by S 6 may-
a bring proceedings against the authority under this act in the appropriate
court or tribunal or
b rely on the convention right or rights concerned in any legal proceedings4
The effect of these sections is that any child or young person may rely upon the convention rights
at any stage of their contact with the youth justice system. This includes the investigation
procedure, any subsequent trial and sentence. He/she may argue the point in question in the
course of the proceedings in which the issue arises or separately, according to the circumstances.
The Act states that all legislation must, so far as is possible, be interpreted so as to be compatible
with the convention rights. There are differing views on the extent to which lower courts (e.g.
magistrates courts) can disregard the decisions of higher courts (e.g. the Court of Appeal) when
interpreting domestic legislation in the light of a convention right. Some argue that such courts
have a duty to read domestic law compatibly with the convention and if necessary to ignore
previous decisions of higher courts. Others say that where there is a conflict of principles, only
parliament can resolve the situation, so the extent to which precedent (previously decided cases
by higher courts) is always binding is something which only time will clarify.
All courts are however bound by primary legislation regardless of whether this conflicts with the
convention. In this situation, courts may have to produce a decision they know to be wrong, but
once a case reaches the High Court, there is a provision enabling the court to make a ‘declaration
of incompatibility’, thereby flagging up the offending piece of law and leaving it to parliament to
fast track a suitable amendment.
Further, all new legislation must contain a statement of compatibility by which the government
indicates its view that the proposed legislation either complies with the European Convention
Rights or that it intends to proceed with the legislation despite its incompatibility. The latter
course will be a very rare event.
When interpreting and thereby developing our common law5, judges are obliged to do so in a way
which is not incompatible with the convention rights.6 A court’s failure to do so would leave
itself open to an appeal, judicial review or, still possible, a reference to the European court. 7
Additionally, our courts must ‘take into account’ the wealth of European jurisprudence that has
been constructed around the convention rights since their inception.
A discussion as to the likely consequences of the phrase ‘in any legal proceedings’ is beyond the scope of
this paper but it may be noted that some foresee from this a ‘horizontal’ spread of rights among citizens in
addition to the specific ‘vertical rights’ against ‘public authorities’.
This can have more than one meaning according to the context in which it is used. Here the essential
meaning is case-law.
Courts are public authorities. See the obligation imposed upon them by s 6 above.
Damages are not normally available against a court acting in good faith s 9(3).
E Public Authority
An understanding of this term is fundamental to comprehending the scope of the Act, for the duty
not to act incompatibly with convention rights is imposed upon public authorities. Defining this
term, of necessity, has been left to judges. It would not be possible to anticipate every situation
which might arise over the years to come and to this extent the Act has a built-in flexibility.
Already, the convention has been applied to situations which could not have been envisaged by
those responsible for drafting the original document.
By s 6(3) of the Act, the term public authority includes any person whose functions are of a
public nature. Some institutions and individuals are clearly within the definition of ‘public
authority’. Examples of these are government departments, police officers, prison officers, the
armed forces, immigration officers, courts of justice, including tribunals and YOTs.
More difficult to classify are those individuals or bodies whose activities are split between public
and private spheres. Among often-quoted examples are doctors working for the National Health
Service and those in private medicine. The former are clearly within the definition of a public
authority while, almost certainly, the latter will not be. Sometimes, one person may perform in
both and therefore take on a dual legal personality and in this situation, the precise legal status
will depend upon the circumstances of the particular case. Finally, even private doctors might be
deemed ‘public authorities’ in certain situations, such as in employment matters or in the patient
selection process. Also, their professional bodies might be in direct firing line even if they are
The Home Office has produced a guidance on the subject 8from which the following has been
extracted regarding some key characteristics of a public authority. To assist a correct assessment,
it advises you to consider:
whether the body performs or operates in the public domain as an integral part of a statutory
system which performs public law duties
whether the duty performed is of public significance
whether the rights or obligations of individuals may be affected in the performance of the
whether an individual may be deprived of some legitimate expectation in performance of the
whether the body is non-statutory but is established under the authority of government or
whether the body is supported by statutory powers and penalties
whether the body performs functions that the government or local government would
‘Human Rights Act. Core Guidance for public authorities: a new era of rights and responsibilities’. See
whether the body is under a duty to act judicially in exercising what amounts to public
The topic is complex. Much will depend on whether courts take a restrictive or liberal view when
defining the term. In the meantime the same Home Office guidance advises everybody working
within or whose work constitutes him/her/them a ‘public authority’ to consider the nature of their
work by asking the following questions:
does my work involve making decisions concerning a person’s private rights or lay down
procedures for the determination of cases? (consider Article 6)
does my work affect a person’s physical or mental well-being? (consider Articles 2 &3)
does my work affect a person’s private or family life? (consider Article 8)
does my work affect the right of a person to freedom of expression? (consider Article 10)
does my work affect the right of a person or religious organisation to freedom of thought,
conscience or religion?(consider Article 9)
does my work affect a person’s possessions or his ability to carry on a trade or profession?
(consider Article 1 of Protocol 1)
does my work risk discriminating against people in an area involving other convention
rights?( consider Article 14)
F The potential for conflict
The likelihood is that there will be a number of challenges made under the Act which could lead
to changes in a variety of practices and procedures in the youth justice arena as well as
amendments to the substantive law itself. Here and at this stage there is little point in trying to
identify all the areas vulnerable to challenge. It would be too lengthy an exercise and involve too
much speculation. The following examples are provided by way of illustration, to give some idea
of the Act’s possible consequences.
(i) the referral order
The Youth Justice and Criminal Evidence Act 1999 provides for the referral of young
offenders to youth offender panels. It is anticipated that such referrals will become the
standard sentence in the youth court for first time offenders who are under the age of 18
and who plead guilty. These orders and panels are currently being piloted in certain areas.
The relevant point to note here is that there is no provision for legal representation before
the panel and nor is it anticipated.9
‘The Referral Order: Guidance to Youth Offending Teams’ Home Office/YJB, published January 2000,
states at paragraph 3.32 that ‘young people will not be legally represented at youth offender panel meetings
as this could seriously hinder the process of the panel’.
It is intended that the panel will have considerable responsibility including the
formulating of a contract/programme to address the offending behaviour. The contract
has to be signed by the young person. S 9 YJCE Act provides some guidance as to the
types of requirements which might be included. The list is not exhaustive but the contract
may include substantial and intrusive conditions. Failure to agree or sign a contract or an
alleged breach of its terms could result in the young offender being re-sentenced by the
original court, perhaps thereby raising the question of inducement.10 It may be argued
that to expose a young person in this way while denying legal representation offends
Article 6 of the convention, which ensures the right to a fair trial and to legal
representation. In other words, a successful challenge along these lines could result in a
(ii) anti-social behaviour orders
These orders may be obtained in the magistrates’ court against anyone over the age of 10
who can be shown (normally on the balance of probability) to have acted in an anti-social
manner. They run for a minimum of 2 years, have no maximum term and can contain
whatever prohibitions the courts consider to be necessary to afford protection from
further anti-social acts. These orders operate rather like civil injunctions. Breach is a
criminal offence, raising the likelihood that they will be classified as criminal rather than
civil proceedings, involving criminal as opposed to civil procedures and rules of
Another possible challenge may question an order which restricts unnecessarily the
freedoms of a person who has not committed a criminal offence.12 Similar considerations
apply to sex offender orders.
(iii) final warnings
Police have a number of options following the investigation of a crime. These range from
taking no action to invoking court process. Between these two extremes lies the choice of
issuing a final warning under s 65 Crime and Disorder Act 1998. This course should only
be followed if the evidence available to be adduced in court produces a reasonable
prospect of a conviction and there is an admission of guilt. If it is followed, a number of
consequences can ensue. It can, for example, form part of a person’s criminal record
although it is not a conviction.
Some potential defendants may prefer a warning to a trial and it may be alleged that this
amounts to an inducement to admit an offence. It may also be argued that any procedure
which results in an admission and thereby the acquisition of a criminal record without a
formal trial and perhaps without any legal advice also offends the convention.13
See Nacro briefing paper ‘Youth Justice and Criminal Evidence Act-Part One’ published October 1999
for further details.
See Nacro briefing paper ‘The anti-social behaviour order’ published October 1999. Amongst other
proceedings classified as civil in the UK but as criminal by the European court are those for non-payment
of fines, council tax and maintenance payments and those under the Dangerous Dogs Act 1991.
See Article 8 and the ‘right to respect for private and family life’ and Article 11 and the ‘right to freedom
of assembly and association’.
See Article 6 and ‘the right to a fair trial.’
The Bail Act 1976 includes a presumption in favour of bail but some consider this to be
more restrictive than that contained in Article 5. Possible grounds for a challenge may
arise where courts are directed to refuse bail, unless the circumstances are exceptional, as
where someone is charged with murder, manslaughter or rape and has previously been
convicted of a similar offence.14
(v) imprisonment and curfews
A punishment may have deterrent or other desirable qualities but the prohibition of
torture, inhuman or degrading treatment under the convention is absolute.15. In 1978, the
court found the sentencing of a 15 year old to 3 strokes of the birch amounted to
‘degrading’ treatment.16 By extension, this brings into question various types of sentences
currently imposed upon young people. Might it offend the article for example to keep a
young person in detention for long periods? Some argue that electronic tagging can cause
psychological damage. It is conceivable that some forms of reparation could fall into the
same category as may the naming (and shaming) of young offenders. Much is likely to
depend on the facts of the individual case, the personality of the offender, the nature of
the offence and the degree of the punishment involved.
(vi) trials and tariffs
Changes in the way young offenders are dealt with have been triggered by a recent
decision of the European Court.17 In this case, the court decided that the trial for murder
of 2 boys, then 11 years as of age, was unfair, contrary to Article 6. The court condemned
various trial practices including its formality and ritual - impairing the ability of the
young offenders to understand what was going on. It went on to say that the setting of a
tariff by the Home Secretary where young offenders are detained at Her Majesty’s
Pleasure is essentially a sentencing exercise which should be carried out by the judiciary.
Two months later, a new practice direction17 was published and announced by the Lord
Chief Justice. This describes in detail, the measures which must be adopted in order to
meet the European court judgment. For example, it deals with the architecture of the
courtroom, the seating arrangements, the timetable of the trial, uniforms of court staff and
officials as well as highlighting specific procedural matters. There remains, however, the
difficulty as to what information can be considered by a youth court when deciding
matters of jurisdiction. Greater discretion may help to avoid inappropriate trials in an
adult court. Meanwhile, it has also been decided that tariffs are to be set by judges instead
Some see this as a sure sign that the Act can affect domestic law and procedure in a
dramatic and fundamental fashion. It certainly demonstrates the government’s
willingness a d ability to act swiftly in such circumstances.
See s 25 Criminal Justice and Public Order Act 1994 as amended by s 56 Crime and Disorder Act 1998
See Article 3. For a more detailed examination of absolute and qualified rights, see under
See Tyrer v UK (1978) 2 EHRR 1
T and V v UK (1999) The Times 17 December 1999
See court website at: www.courtservice.gov.uk/pds/crown/yngperpd.htm or The Times 17 February 2000
(vii) the ‘right’ to silence
The exceptions which used to apply in respect of younger offenders have been whittled
away over recent years so that all offenders are now subject to the same rules, although it
is right to say that youth should be a factor in determining how these rules are applied.
The result is that if a young offender remains silent during the investigation stage or at
court, adverse inferences may be drawn from a failure to answer questions or give
evidence. It is argued that this may, in certain cases, offend the presumption of innocence
included in Article 6 (2).
The right not to be discriminated against only exists in respect of the enjoyment of the
various rights and freedoms specifically set out in the convention.18 Even within this
limitation, it would be reasonable to expect a number of prejudice- based challenges.
For example, young people are subject to different rules according to their age and/or
gender and some challenges are almost certain to follow the application of these rules.
Thus, females of 15-16 years of age are remanded to local authority secure
accommodation rather than prison, whereas males of the same age may receive the same
treatment only if they are deemed to be ‘vulnerable’ and a place can be found for them.
Further, young people of 17 years of age are treated as adults and remanded to prison
accommodation under adult legislation even though they have yet to attain their majority.
The concept of proportionality is relatively new to English law. It has come to the fore largely in
the field of sentencing. Otherwise, the nearest we have come to it is with the test of
‘reasonableness’ but actions may be reasonable without being proportionate. Different criteria
apply. In the Act, the concept of proportionality is central to deciding whether conduct offends
certain rights. The question is whether the action or conduct in question is excessive even though
the aim be a reasonable one.
Some of the rights preserved by the Act are absolute. Thus, as has been explained above, torture,
inhuman or degrading treatment or punishment can never be justified. Other rights are said to be
‘qualified’ in that they may be encroached upon - in certain circumstances. For example, Article 8
provides for the right to respect for private and family life subject to such interference ‘as is
accordance with the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the rights and freedoms of
others. Similar words are used to qualify other rights. Perhaps the key word is ‘necessary’
because actions may have the desired result without being ‘necessary’ and it is this word which
introduces proportionality. So, several orders available under the Crime and Disorder Act 1998
such as action plan orders or parenting orders may be challenged in appropriate cases on the basis
that they offend the right to family life and are not ‘necessary’ to achieving one or more of the
See Article 14
For greater depth on the subject, readers are referred to the Nacro Briefing ‘Proportionality in the
Youth Justice System’ published in October 2000.
H United Nations Convention on the Rights of the Child
This convention came into force on 2 September 1990. Its status is the subject of debate but some
things are certain. First, the UK is a signatory to it so our legislation, practice and procedure
should be consistent with it. Second, the convention has not been incorporated into our domestic
law and the Act does not change this situation. It is not therefore directly enforceable in the UK.
On the other hand, it is frequently cited as an appropriate standard or model by which matters are
judged. It is, at the very least, of persuasive authority - by virtue of the UK being a signatory and
its importance in European jurisprudence.
The United Nations convention contains much that is relevant to the youth justice system and two
points are worthy of note here. The Crime and Disorder Act 1998 states unequivocally that the
principal aim of the youth justice system is to prevent offending and everyone working within the
system must act accordingly.19 Article 3 of the U.N. convention states that the ‘best interests of
the child shall be a primary consideration’. The interests of the child may not always be
consistent with the stated aim of the youth justice system. On the other hand, the prevention of
offending is a vague term legally. The United Nations provision is clear. In view if its importance
in convention jurisprudence and in international law, it is conceivable for example that a
particular sentence may be challenged even though it is consistent with the stated aims of the
youth justice system.
The Act has been described as the most important development in human rights law since the
Magna Carta in 1215. Just how significant it will be is likely to depend on the attitudes of our
judiciary and how they will allow it to shape the development of our law. Almost certainly, there
will be dramatic successes and failures but these are likely to fall into the margins. Every day,
small decisions will be made in the course of proceedings, many of which may go unnoticed but
which together may influence development in one direction more than another. These decisions
and this direction will reflect judicial thinking and it may be many years before the course can be
Many of these decisions, dramatic and otherwise will be within the youth justice system. In this
paper, several issues have been highlighted as possible areas of challenge. There are many more
such as rights in custody and police powers of investigation including covert surveillance. There
are interesting times ahead.
[N.B. the Powers of Criminal Courts (Sentencing) Act 2000 consolidates many of the provisions
referred to in this paper. In order to reduce complications, the ‘old’ references have been given.]
Nacro Youth Crime Section
s 37 Crime and Disorder Act 1998
Source Heading Brief Summary
Article 2 right to life protects all human life subject to
Article 3 prohibition of torture absolute prohibition of torture
inhuman or degrading treatment
Article 4 prohibition of slavery and absolute prohibition of
forced labour slavery and servitude. Forced
or compulsory labour excluded
from protection only in specified
Article 5 right to liberty and security gives everyone the right to
liberty and security except in
defined circumstances and sets
out the rights of a person who is
arrested or detained.
Article 6 right to a fair trial lists benchmarks of a fair trial,
the minimum rights of an
accused person and confirms the
presumption of innocence.
Article 7 no punishment without law prohibition against retrospective
Article 8 right to respect for private and protects private and home life
family life and correspondence from
unlawful and unnecessary
Article 9 freedom of thought, conscience gives everyone the right to
and religion freedom of thought, conscience
and religion and a qualified right
to manifest those freedoms.
Article 10 freedom of expression gives everyone a qualified right
to a freedom of expression which
includes activities like publishing
books, articles or leaflets, the
spoken work and art.
Article 11 freedom of assembly and preserves qualified rights of
association assembly and association and
includes for example the right to
join a trade union and take part in
Article 12 right to marry absolute right which includes
the founding of a family
Article 14 prohibition from discrimination limited to securing enjoyments of
convention rights and freedoms
without any discrimination such
as sex, race, colour, language,
religion, political or other opinion,
national or social origin,
association with a national
minority, birth or other status
The First Protocol
Article 1 Protection of property qualified right to peaceful
enjoyment of possessions
Article 2 right to education in giving this right, states must
respect the rights of parents
to ensure education is in line with
their religion and philosophy
Article 3 right to free elections relates to elections to the
legislature which must regular
at reasonable intervals and by
The Sixth Protocol
Articles 1 & 2 Abolition of death penalty absolute prohibition in peacetime,
but qualified in time of war.