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The Human
Rights Act 1998 does not create any new criminal offences.
Breaches of Convention Rights will mainly be raised by the
defence alleging that either the process, practice, offence
or the sentence itself breaches a Human Right contained in
one of the Articles in the Convention.
For example:
- The defence
may claim that the defendant's Right to a Fair Trial provided
by Article 6 is being breached because one of the justices
sat on a bail application when his/her previous convictions
were referred to.
- A decision
may be made by the police to prosecute all the men and caution
all the women arrested at an animal rights demonstration.
This may be challenged as a breach of Article 10 Freedom
of Expression, and Article 14 which requires that Rights
apply equally irrespective of gender.
In addition,
breaches of Rights must be raised by the court if it appears
that a party's Human Rights have been infringed. In its role
as a Public Authority, the court, through the clerk, has a
positive duty to draw attention to Human Rights Act breaches
even if they have not been mentioned previously.
4a.
What should you do when a Convertion Rights issue is raised?
A breach
of a Convention Right may be raised by: -
- one of
the parties
- you, in
consultation with your colleagues and the clerk
- the clerk.
The questions
you need to consider when dealing with an alleged breach
of the Convention:
Have the
individual's Rights been infringed or restricted? At
this point, you will be listening to the argument/s and determining
whether or not the individual's Convention Rights have been
infringed or restricted. Ensure that everyone is agreed which
Rights are in issue.
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example: Alan is convicted of assault occasioning
ABH at a football match. On conviction, an order preventing
him from attending football matches for two years is
suggested. |
The
defence submission: Everyone has the Right to Freedom
of assembly and association. All Alan's family and friends
go to football matches with him. You may decide that
there is a prima facie breach of Article 11 Freedom of
assembly and association. |
As Article
11 is a qualified Right, having found a possible breach you
must then ask the following questions:
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Does
the domestic law prescribe this restriction? Is
there a clear and accessible statutory authority which
allows that restriction?
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Answer: Domestic
law clearly provides for people like Alan to be made the
subject of exclusion orders. |
Result: The
restriction on Alan is prescribed by law. The first test
of lawfulness has been passed. |
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Does
the restriction pursue a legitimate aim? Before
proceeding you must decide whether the restriction
is one allowed by the Convention.
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Answer: Article
11(2) provides that the Rights of an individual may be
restricted for the prevention of disorder or crime. |
Result: The
restriction on Alan pursues a legitimate aim. The second
test of lawfulness has been passed. |
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Is
the restriction necessary? Known as the 'Doctrine
of Proportionality', you must decide whether the restriction
is necessary. The restriction must be proportionate
to the achievement of the legitimate aim and must do
no more than is necessary to protect society.
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Answer: If
you are satisfied that such action is necessary in a democratic
society and proportional, Alan's Rights would not have
been breached. |
Result: The
restriction on Alan is proportionate. The third test of
lawfulness has been passed. Announce this, giving your
reasons, and continue to sentence Alan. |
Having used
the above process, the court may find that either no Convention
Right has been breached or that the domestic law can be applied
in a way that is compatible with the Convention. If unable
to do either of the above, the court may be obliged to act
in a way that leaves the breach of the Convention Right unresolved.
In this case a party to the proceedings may use the existing
appeals procedure and raise the breach as part of their appeal.
4b.
The Role of the Defence Solicitor
The person most likely to raise Convention breaches will be the defence
advocate. However, there is a danger that some advocates will make non-specific
allegations in the name of the Convention. You may find that applying the
process on pages 11-13 will help you to determine the merit of the application.
In particular
you need to take care when dealing with legal aid applications
that allege non-specific breaches of the Convention. Before
your bench makes a decision the issue/s must be discussed with
your legal adviser. This will ensure that legal aid is only
granted to allow relevant Convention points to be argued.
4c.
The Role of the Clerk
As explained earlier, your clerk should raise Convention breaches in view
of the court's status as a Public Authority. This means that the court
must comply with the Convention and identify any possible breach of it
which would adversely affect a party to the proceedings. Parties may wish
to comment on the clerk's view of a Convention issue; you may, therefore,
find that more legal advice is given in open court rather than in the retiring
room.
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