The Convention's aim is to protect individuals against the power of the State and other Public Authorities (such as the courts). Only someone who is directly affected by the action in question - a 'victim' in the terms of the Act - may bring a Human Rights challenge. Human Rights breaches may be argued in existing court proceedings - for example as a defence to a prosecution or as part of a licensing appeal.

a. Rights Unlimited?
If you were asked what Rights you would want guaranteed for yourself and your family, you may choose, for example, the Right to life, liberty, freedom of speech and religious practice. Under the Human Rights Act 1998 many of the Rights contained in the European Convention on Human Rights (the Convention) will be available to people using the British courts. Although the Act will not be implemented until October 2000, Convention Rights points are already being argued in magistrates' courts. There are 18 Articles in the Human Rights Act and a list of the main Rights appear in Appendix 1. The Articles most well known, and those likely to be referred to in Magistrates' Courts, appear in the text boxes to the right of this page.

Discrimination
The Convention does not provide any independent protection from discrimination. The Convention does provide that the Rights and Freedoms contained in the Convention shall be enjoyed equally by all citizens irrespective of their race, colour, language, sex etc. (Article 14). For example, the Convention requires that a free interpreter must be provided for all those who require one. If the UK government tried to impose a charge for interpreters on one section of society only, a breach of Article 14 would occur. The overriding principle of the Convention is that all the Rights in the Convention should be available equally to all citizens.

Witnesses and Victims
The Convention makes no direct reference to the Rights of victims and witnesses. However, the Right which all citizens have to life, liberty, security of person and to a private and family life must be respected. This means that the interests of the victim and of the witnesses may be taken into account when assessing the extent of a defendant's fundamental Right to a fair trial. As always, when considering applications to:

• Adjourn a trial, or
• Allow evidence to be given from behind screens,

the interests of all concerned must be considered.

b. Types of Rights
Convention Rights can be put into distinct categories: absolute, qualified and limited. Guidance on identifying types of Right will be given at your one-day workshop.

Absolute Rights

These Rights cannot be restricted in any way or in any circumstances, e.g. the Prohibition of Torture or of Inhuman or Degrading Treatment (Article 3). If the conduct of the State amounts to 'torture' as defined by the Court of Human Rights, a breach of Article 3 will always result.

Limited Rights

Some Rights contain a clause which prescribes set circumstances in which the Right may be infringed without breaching the Article. For example, Right to liberty and security (Article 5) prevents detention except in particular prescribed circumstances e.g. detention following conviction by a court.

Qualified Rights

The Rights, Prohibitions and Freedoms in many of the Articles of the Convention are subject to qualifications. These qualification clauses enable a balance to be struck between the Rights of an individual and the interests of a democratic society. This concept is known as the 'doctrine of proportionality'. In such circumstances, a person's Rights may only be restricted if:

• there is a domestic law which permits the restriction; and
• there is a legitimate aim; and
• there is a pressing social need for the restriction which goes no further than is necessary (proportionate).

An example is the Right to respect for private and family life (Article 8). This Article provides that its effect may be restricted by the State, e.g. in the interests of prevention of disorder or crime.

When you apply the Human Rights Act 1998 you will be using what has been called 'A new way of thinking'. This includes the following concepts:

c. The Purposive Approach
After the Act is in force you will be required, if at all possible, to interpret existing legislation in a way that is compatible with the Convention Rights. In other words, you must look at the purpose behind the Convention. This new 'purposive approach' means taking a broad and more flexible interpretation of the law, rather than a strict legal view. In future when determining the meaning of legislation, you may, where necessary, be able to:

• 'read in' extra words
• or even ignore words

if to do so would make the legislation compatible with the Convention.

For example, existing legislation provides that advance information must be provided to the defence in 'either-way' cases. There is no similar requirement in 'summary cases'. However failure to provide such information in 'summary cases' would appear to breach the Convention. Whilst existing legislation lists the cases in which advance information must be given the legislation does not specifically prohibit the giving of advance information in other circumstances. When the Human Rights Act 1998 is in force, you could read existing legislation as allowing advance information to be made in summary only cases and thus comply with the Convention.

Sometimes, even though this wide interpretation is applied, you may be unable to interpret the legislation compatibly with the Convention; therefore you must apply the existing Primary legislation. When dealing with the matter on appeal the High Court will be able to make a 'declaration of incompatibility'. Once such a declaration is made Ministers will be able to amend the legislation under a new fastrack procedure. When future legislation is being presented to Parliament, Ministers will be required to confirm that the Bill is compatible with the Convention. As a result, you will find it easier to work with new legislation.

d. A Living Instrument Approach
The Convention has been described as a 'living instrument' because it is capable of being interpreted in the light of current conditions. When considering the way in which the Convention has been interpreted in the past, you will need to take into account:

• the lapse of time, and
• the change in public thinking

since the previous decision was made before determining whether or not you should interpret the Convention in the same way.

Whilst this means that you and your colleagues are not necessarily bound by previous interpretations of the Convention, you must take notice of the lapse of time since the previous decision was made. The longer the intervening period, the more likely it is that the Convention is capable of a new interpretation, especially in areas such as morality and family life. However, previous decisions regarding the correct way to interpret and apply the Convention will assist you. This 'new way of thinking' should help you to make sensible, realistic decisions based on both the Convention and prevailing social conditions.

e. Appeals
To begin with, there will be more uncertainty about the meaning of legislation and the application of case law. Every piece of existing law must now be interpreted in the light of the Convention; previously, case law informed your decision making. Once the Human Rights Act 1998 is in force all legislation will be subject to the 'new way of thinking' approach; existing case law will also have to be viewed in the context of the Convention. The outcome of this new approach is likely to result in more legal argument. Whatever your decision, one of the parties may feel aggrieved by your interpretation. This will mean more appeals by way of case stated until such time as the higher courts consider the points at issue. When this happens it is a reflection that the law is developing as a result of incorporating the Convention, not necessarily that you have made the wrong decision.