Human Rights and the legal/penal system.

Human rights - "Nonsense on stilts" - Jeremy Bentham (a 19th century philosopher).

What are human rights? We hear this term frequently now days as ever more rights are claimed by ever more single interest pressure groups. But what we do not have is any clear national definition of what human rights are or what they should be.
Equally we are not told how they should be paid for or how they are decided.
You may, for instance, feel that everyone should have a right to adequate food and good healthcare but you cannot have what does not exist or cannot be afforded. It is self evident that the rights of citizens in wealthy countries such as Britain and America are greater than those of the citizens of poor countries, such as many in Africa, simply because we can afford them.
It is widely held that there are some fundamental human rights and I propose to examine a few of these that relate to the criminal justice situation.

The right to life.
Obviously, this cannot exist as such because some 800,000 people die each year in Britain alone. Perhaps then it should be re-designated as the "right not to have one's life arbitrarily terminated by the state." Even this more realistic definition does not really apply in Britain and is probably not entirely possible.
The death penalty ended in 1964 and since then, nobody in Britain has been executed by the state. However, the state does still kill a few of its citizens each year. The police shoot a small number of people and a few more die due to being restrained whilst resisting arrest or as a result of car chases. In none of these cases has there been what the Americans call "Due Process."
Some 7-800 innocent people have their lives arbitrarily terminated by homicide every year - does the government do enough to prevent this?
We also allow abortion, effectively on demand, and some 200,000 lives are terminated annually through this means.
Then there is the withholding of health care due to the decisions of officials that normally go unchallenged.
The most high profile case of this recently was 11 year old Jamie Bowen who suffered from leukaemia and whose health authority declined to pay for further treatment. Her father took them to court and the case entered the public arena. Jamie was a very courageous and articulate young lady who won massive public support for her case. Had she been an unattractive old woman would anybody have cared? I have heard the arguments on both sides in her case and do not know who was right and who was wrong, but I do know that we do not guarantee the citizens of this country the right to life particularly where it is going to cost the state a lot of money.

The right to freedom from torture.
Torture is possibly the most dangerous of all state activities as it is always secretive and will inevitably lead to forced confessions and, therefore, wrongful convictions which in those countries that still practice it, often leads on to extra-judicial executions.
Whilst there is no suggestion that Britain uses torture, interrogation techniques need to be transparent and carefully monitored to ensure suspects are not being coerced into confessing to crimes of which they are innocent. We have moved a long way down this road, with suspects having the right to the duty solicitor present at police interviews and the interview tape recorded.

The right to a fair trial.
I think most people would agree that this is a fundamental right of great importance to us all and one that the state should do everything in its power to guarantee. But what is a "fair" trial - I fear that there are some pressure groups who believe that any trial resulting in a conviction is unfair. Trial procedures are constantly evolving. In the Middle Ages, we had trial by ordeal and then later jury trials where the accused was not represented or even allowed to speak in their defence. It was only in 1908 that the Appeals Court came into being.
We now have safeguards such as the Police and Criminal Evidence Act, taped interviews and the availability of fingerprint and DNA evidence, review of evidence by Crown Prosecution Service, etc. all of which should contribute to fairer trials.
Is it reasonable to say that at any given point in time, a fair trial is one in which both sides are properly represented before an impartial judge and a competent jury?
Justice is vital to a decent society and before people are deprived of their liberty or property or even their life, there must be proper legal process with sufficient checks and balances and rights to appeal.

The rights of convicted criminals.
What rights should convicted criminals have? Should they have the same rights as innocent citizens? Surely they should have rights to food and water, to shelter, basic health care and protection from arbitrary brutality from their guards. One may also feel that they should be protected from assault, rape and bullying by other prisoners and that they should have the right to be released once they have completed their sentence. But should they also have a right to phone cards, computer games and well equipped gymnasium facilities?
Human rights groups in some case appear to think that whatever anybody has done, they should in no way be deprived of their rights. Surely this is ridiculous - why should murderers, paedophiles, armed robbers, rapists, etc. enjoy full human rights when they have so little regard for the rights of their victims?
Evolving standards of decency in society tend to mean that prison conditions will improve, although usually lag behind conditions in the outside world. "Slopping out" has now been ended in most prisons. Fifty years ago, few homes had an inside toilet and chamber pots were still widely used. Now almost every house has an inside flush toilet and However, there are pressure groups such who campaign continuously for ever better conditions, as it would seem, does Her Majesty's Chief Inspector of Prisons. Should we not have some laid down and transparent standards for treatment within prison?

Should criminals have the right to automatic parole after serving half or two thirds of their sentences, irrespective of their behaviour in custody or their potential danger to the rest of us on release? Personally, I think that sentences should mean what they say and there should be a fixed rate of remission for genuine good behaviour, say one month for every year. I feel that the present sentencing regime is nothing more than a con trick perpetrated on the general public to make it seem that the courts are dealing severely with those who are convicted.
Should multiple murderers ever be paroled or should "life" mean life for them? Most people will probably agree that in the worst cases, "life" should mean what it says. But yet there are always those people and groups who campaign to free lifers, irrespective of the enormity of their crimes. One could argue that if you have murdered several people, you should forfeit any rights to anything and be grateful that the state allows you to continue to live at all.
Should sex offenders be castrated as part of their sentence? In some states of America, a rapist will spend a lesser time in prison if they agree to chemical castration. Is this a violation of their human rights or just plain common sense?
Should persistent offenders (of both sexes) be sterilised so that they cannot bring children into the world to follow in their footsteps?
Juvenile offenders have been given ever more rights under what many see as misguided legislation, that in most cases, removes any fear of real punishment. It is noteworthy that it is juveniles who commit a disproportionately large number of crimes. Corporal punishment has long been banned in schools and as a penalty that can be imposed by the courts. A policeman cannot strike a child, irrespective of the situation, without risking prosecution and dismissal. In most cases, children who are arrested are released on police bail in a few hours, free to re-offend, as they often do. When they finally come before the courts, the sentences they receive in most cases are derisory and usually non-custodial so they are neither particularly bothered nor prevented from committing further crimes. A 15 year old lad I know pleaded guilty to seven offences of domestic burglary and two of possession of drugs. His sentence - a probation order and a fine of £60. What message does this send him and his friends? What protection does it offer to the rest of us? Being burgled is a traumatic experience.
Have we simply created a generation of little monsters who know their rights and thus know that they are "fireproof?" I think we have and I fear that it is the children themselves who will be the ultimate victims. Once they reach adulthood, the courts happily send them off to prison and in doing so, commit them to a life of crime from which there is no way back in the majority of cases.

How should our rights be decided in a way that benefits the innocent majority rather than the guilty minority?
You may think from the foregoing that I agree with Jeremy Bentham and to a point I do. However, I do feel that it is important that we should have some guaranteed rights and that there should be a proper mechanism for deciding what they are. I think that a standing committee should be set up consisting of lay people representing a broad spectrum of society who would make recommendations to parliament after having undertaken a careful/cost benefit analysis of each proposed right with the help of expert witnesses. One third of the members of the committee could stand down each year so that there was always an influx of new blood and new ideas. Parliament would not like this erosion of their powers but does not have the time or the structure to take testimony from experts and to carry out an in-depth analysis of each right. Also, it is prone to be influenced by pressure groups, the media and thoughts of re-election and, therefore, cannot always be relied upon to make the right choices.

A Surveillance culture.
Should we permit such devices as telephone tapping, email monitoring and Closed Circuit Television Cameras - do these improve the security of the majority? Or do they make it easier for the state to spy on and therefore to control generally law abiding citizens? If we are to allow these surveillance measures who should be permitted to apply them. The police, local councils, MI5 or MI6? It is staggering the number of official bodies that can pry on us for all sorts of reasons. CCTV monitors us wherever we go in any town nowadays, and yet so often the images produced are useless in obtaining a conviction where a serious crime has taken place.
The Regulation of Investigatory Powers Act 2000 (RIPA) allows for the interception of communications. This was introduced a s tool in the war on terrorism but is available to all sorts of public bodies to monitor the activities of ordinary citizens who are suspected of some minor offence, e.g. putting their wheely bin out on the wrong day!! Some 792 organisations have gained powers under this act to pry on us.

Back to Contents page Thoughts on capital punishment Thoughts on crime and punishment