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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 nowadays as ever more rights are
claimed by ever more single interest pressure groups. The United Nations
adopted the Universal Declaration of Human Rights in 1949 (the full text can be
read here). As you will see some of these “rights” are
little more than aspirations in many countries around the world.
Do we accept this Declaration as a clear national definition of what human
rights are or what they should be? Are
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 which is perfectly reasonable. However 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 wealthy countries 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.
Article
3 of the UN Declaration states that “everyone has the right to life, liberty
and security of person”. What is meant
by the “right to life”? Obviously, it
cannot exist as such because everyone has to die, some 800,000 people die each
year in
The death penalty in
Some 7-800 innocent people have their lives arbitrarily terminated by homicide
every year – surely this same article covers this under “security of person”. Does the government do enough to prevent murders?
We also allow abortion, effectively on demand, and some 200,000 lives are
legally terminated annually through this means.
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. Torture is
specifically outlawed by Article 5 of the UN Declaration. 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.
The right to fair proceedings following arrest.
Haven’t
hear of this one before? I made it up
because I actually feel this is a very important issue. When a person is arrested they are vulnerable
and it is vital to justice that this vulnerability is not exploited to obtain a
false confession. There are cases where
this has happened and people have confessed out of weariness or just naivety. Confession evidence plays well in court at a
subsequent trial. Nowadays suspects
having the right to the duty solicitor present at police interviews and their
interview tape recorded plus other safeguards introduced under the Police and
Criminal Evidence Act. It would seem
reasonable to video all police interviews to ensure that there is no coercion
and indeed to record not just the words but the actions and body language of
both the police and the suspect. Before
a person can be committed for trial there is a review of the case by Crown
Prosecution Service to ensure that there is sufficient evidence to ensure a
successful prosecution and that the person is not being sent for trial on the
whim of a police officer.
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"? It is one in which there is a presumption of
innocence and where the accused is properly represented before an impartial
judge and a competent jury with the case heard within a reasonable time scale
so that events are still fresh in the minds of witnesses. Equally it is important that the accused and
their representatives are allowed sufficient time to prepare their defence and
see and test the evidence that the prosecution intends to bring against them
and also to have the right to cross examine witnesses.
Trial procedures are constantly evolving, in Anglo Saxon times we had trial by
ordeal and then later jury trials where the accused was not represented or even
allowed to speak in their own defence. It was only in 1908 that the Appeals
Court came into being. We now have
safeguards such as the availability of fingerprint and
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.
Whose rights?
Surely
human rights should protect the innocent and the vulnerable (e.g. children, the
sick and the old) from the excesses of the executive and the predations of
criminals, but do they actually do so?
The Human Rights Act received Royal Assent on the 9th of November 1988
and effectively came into UK law in October 2000. Its stated purpose is “An Act to give further
effect to rights and freedoms guaranteed under the European Convention on Human
Rights.” So why does one get the impression that UK and European Human Rights
laws have proved to be a direct inversion of their stated aims seemingly favouring
the guilty over the innocent and allowing them to bring endless court cases to
defend their perceived rights at the expense of the rest of us.
The ordinary decent hard working person has seen a continual erosion of their
rights under this legislation introduced by the Labour government, partially
under the excuse of fighting terrorism.
We are continually subjected to a
surveillance culture in which our every moved is watched and recorded, our
phone calls and emails monitored and are actions ever more tightly regulated
and all without committing any offence.
The Regulation of Investigatory Powers Act 2000 (RIPA) allows for
the interception of communications. This
was introduced as a 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!! Should we permit such devices as
telephone tapping, email monitoring and Closed Circuit Television Cameras - do
these improve the security of the innocent 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? In reality it is a staggering 792 organisations 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
rights of convicted criminals.
What
rights should convicted criminals have? Should they have the same rights as
innocent citizens? Of course they should have rights to adequate food and
water, to shelter, basic health care and protection from arbitrary brutality
from their guards. 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? Should they have
the right to smoke in their cells whilst the rest of us cannot do so inside
public buildings and workplaces?
Human rights groups seem to think that whatever anybody has done, they should
not be deprived of any of their rights. Many people think 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? However, there are pressure
groups who campaign continuously for ever better prison 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?
Evolving standards of decency in society tend to mean that prison conditions
steadily improve, although usually lag behind conditions in the outside world.
Disgusting practices such as "slopping out" have now quite rightly
been ended in prisons but remember that fifty years ago, there were a lot of
homes without an inside toilet and chamber pots were still widely used.
Should
people charged with serious violent offences be released on bail to await their
trial or should they be remanded in custody because of the danger they
represent?
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 served. 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. (Remember Myra Hindley?)
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 knew pleaded guilty to seven offences of domestic
burglary and two to 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, as
you will know if it has ever happened to you.
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.
Conclusions.
You
may think from the foregoing that I agree with Jeremy Bentham and I largely 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.
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