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HUMAN RIGHTS ACT 1998 Powered By Docstoc

A       Introduction

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.

D       Interpretation

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
    local government

   whether the body is supported by statutory powers and penalties

   whether the body performs functions that the government or local government would
    otherwise perform

 ‘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
         substantial re-think.

         (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.’

        (iv)     bail

        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
        of politicians.

        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
‘Proportionality’ below.
   See Tyrer v UK (1978) 2 EHRR 1
   T and V v UK (1999) The Times 17 December 1999
   See court website at: 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).

           (viii)     discrimination

           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.

G          Proportionality

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
listed goals.

     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.

I          Conclusion

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.]

October 2000
Nacro Youth Crime Section
     s 37 Crime and Disorder Act 1998

                    Schedule One

Source       Heading                            Brief Summary

Article 2    right to life                      protects all human life subject to
                                                lawful exceptions

Article 3    prohibition of torture             absolute prohibition of torture
                                                inhuman or degrading treatment
                                                or punishment

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
                                                criminal law.

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
                                                      peaceful demonstrations

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
                                                      secret ballot

The Sixth Protocol

Articles 1 & 2       Abolition of death penalty       absolute prohibition in peacetime,
                                                      but qualified in time of war.