The Human Rights Act 1998 Part I - Constitutional Context and Effect on the Substantive Criminal Law of the

United Kingdom

by David Parsons, LLM (University of Nottingham)

Introduction
The Human Rights Act 1998 (hereafter HRA) is one of the most important pieces of legislation to be passed in recent years. Some 50 years after the United Kingdom became bound by the rights guarantees contained in a document we were largely responsible for drafting, the ECHR will have the force of ordinary law throughout the United Kingdom. It will be the responsibility of the higher courts to judge compliance with the ECHR, and the responsibility of every court in the land to ensure that trials are consistent with its guarantees. Any situation in which the citizen interacts with the state will be affected by the HRA, but none more so than the criminal justice system, the sharpest point of contact any individual will have with the machinery of state. It is here that the effects of the new regime will be felt first, and most keenly. The European Convention on Human Rights creates a binding obligation upon its signatories to uphold minimum standards in respect of certain enumerated areas of rights. Key convention guarantees include: ? ? Article 2: Right to life. ? ? Article 3: Freedom from torture and inhuman or degrading treatment or punishment. ? ? Article 5: Right to liberty and security of person. ? ? Article 6: Right to a fair trial. ? ? Article 8: Right to respect for private and family life. ? ? Article 9: Freedom of thought, conscience and religion. ? ? Article 10: Freedom of Expression. ? ? Article 11: Freedom of assembly and association. Some articles confer rights that are absolute, others have inbuilt, exhaustive lists of exceptions, still others have two part clauses providing a wide area of rights coverage yet allowing the government to interfere with rights where necessary in a democratic society and most rights can be subject to carefully monitored derogation in times of public emergency. Until the commencement of the HRA, the only way that UK citizens can enforce their Convention Rights is to petition the European Commission in Strasbourg. From October 2000, the courts of the United Kingdom will have primary responsibility for deciding if UK legislation and the acts of public authorities are compatible with the ECHR.

The rule of the ECHR is nothing new to UK law, and we have had more than our share of adverse rulings from Strasbourg over the years. Yet this is the first time the domestic legal system has been faced with the responsibility of guaranteeing the rights we are all promised, and provides both a challenge and an opportunity. The challenge is to overcome the judicial mindset that the legislature is sovereign and cannot be questioned over issues of substantive law, and act as a truly effective guardian for the rights of us all. The opportunity is to remove the notion of an imposed justice that often infects public opinion around Strasbourg decisions, and provide a truly British flavour to the enforcement of human rights guarantees. With training, vigour, enthusiasm and real commitment, spiced up with a dash of judicial activism, the HRA will provide the start of a new era for human rights. This article is the first of a series of two that will survey the likely impact of the HRA upon the criminal justice system, with the assistance of some recent writings in the field, including comments made by Professor Sir John Smith in a series of informal lectures. The first article will look into the constitutional context of the HRA, before turning to its effects on the substantive criminal law, including: ? ? Classification of Criminal Proceedings. ? ? Examples of Offences that may be Challenged. ? ? The Burden of Proof and Reverse Onus Provisions. ? ? Strict Liability Offences. ? ? Reasonable Force in Self Defence. The second article will deal with effects on criminal procedure, including: ? ? Trial Fairness. ? ? Disclosure. ? ? Covert Law Enforcement Operations. ? ? Automatic Denial of Bail. This is by no means an exhaustive survey, but takes a wide view of the area, and augments original commentary with some of the best recent thinking on what will happen when the Human Rights Act becomes operative in October 2000. Much, of course, is pure speculation, yet there is a wealth of ECHR jurisprudence that provides a guide to the likely areas of greatest impact. A full list of sources is contained at the end of the article.

The Constitutional Context of the HRA

Professor A.T.H. Smith notes two reasons for the incorporation of the European Convention on Human Rights (hereafter ECHR) into UK law by way of the HRA. First is the notion of a need to restrain the unfettered power of the executive, and the efficacy of a bill of rights in achieving this end. Secondly, and more significantly is the embarrassing number of critical judgments issued by Strasbourg, requiring changes to UK law. The HRA, it was felt, would provide a welcome opportunity to put our own house in order and reduce the incidence of recourse to Strasbourg.

The HRA gives the ECHR the force of ordinary law in the United Kingdom. Some rights, such as the right to life (A.2) are absolute, whilst others, such as the right to privacy (A.8) and freedom of expression (A.10) are qualified to an extent, allowing the right to be infringed if provided by law and necessary in a democratic society. The incorporation of the ECHR could have been done, Smith notes, in three different ways: ? ? The US model - a strong power of judicial review that allowed courts to strike down legislation as unconstitutional. This is a concept revolutionary to the United Kingdom. ? ? The Canadian model - a strong power of judicial review subject to a legislative override. ? ? The New Zealand model incorporating rights legislation as ordinary law. This was the option chosen for the HRA, being the best way of balancing the conflicting objectives of protecting human rights and preserving parliamentary sovereignty. The Act requires that all new legislation be accompanied by a ministerial statement proclaiming the compatibility of the measure with the ECHR (s.19), or any lack thereof Interpretation of statutes under the HRA When determining an issue raised under the HRA, courts are required, by s.2, to take into account the jurisprudence of Strasbourg in the relevant area, but are not bound by this interpretation. This can be contrasted with the position under the European Communities Act 1972, which makes determinations of the European Court of Justice binding upon domestic courts. Prof. Smith feels this to be largely due to the, as he terms it somewhat delphic nature of ECHR decisions, often lacking a clear ratio decidendi which a common law court could readily extract. Prof. Smith notes several principles of interpretation adopted by Strasbourg which may be of assistance to UK courts: ? ? A generous approach is taken to what comes under the scope of the various rights, ensuring that judicial scrutiny is applied whenever rights are in issue. ? ? For rights to be permissibly infringed, the legislation concerned must be justified by positive law, serve a legitimate purpose, be necessary in a democratic society and be nondiscriminatory in its effect. ? ? The ECHR is regarded by the European Court as a living instrument, with the effect that older decisions will need to be examined afresh to determine if there is need for change. An example of this is the attitude towards the criminalisation of homosexuality. In the 1960s and 1970s, this was not considered to present an admissible issue, but the more recent case of Dudgeon v UK (1992) 4 E.H.R.R. 149 held that it was contrary to Article 8 to criminalise homosexual activity between consenting adults in private.

Section 3 of the Act provides that, so far as it is possible, legislation must be read and given effect in a way that is compatible with the protection of rights guaranteed under the ECHR. This goes way beyond the current practice which allows the consideration of the ECHR when there is statutory ambiguity, and effectively reverses this standard, requiring a consistent reading unless the legislation in question is utterly incapable of bearing one. Incompatibility In the event of s.3 interpretation failing to remedy the alleged breach of the ECHR, a declaration of incompatibility may be issued by the Court (under s.4). In cases where such an order is contemplated, the Crown will be informed and may be joined as a party to put its case before any decision is made (s.5). The Act provides a fast track procedure for the amendment of offending legislation, whether in response to a declaration of incompatibility or an adverse ruling from Strasbourg (s.10). The responsible government minister may make an amendment by order, which takes effect when approved by both houses of Parliament. In cases of particular urgency, the order may take effect immediately, but expire unless confirmed by both houses. In conclusion, Prof Smith notes that the Act is a typically cautious and pragmatic piece of legislation, going so far and no further, but considers that the question of how great an impact the Act has will be determined by the willingness of the courts to engage in judicial activism, for which the statutory framework provides ample scope. The HRA will make the practice of criminal law more complex, but this is a small price to pay to bring human rights home.

The Substantive Criminal Law

It is impossible to provide an exhaustive list of criminal offences that may be subject to challenge, as the ECHR is almost all pervasive, reaching into any aspect of private life that the state may wish to control. Article 8, guaranteeing respect for private and family life, Article 9, the freedom of thought, conscience and religion, Article 10, the freedom of expression and Article 11, the freedom of assembly and association all provide fertile grounds for challenging a number of offences. Various public order offences may be vulnerable, along with the unevenly applied law of blasphemy. The proposal by the MacPherson report to criminalise racially offensive language used in private is another case. The observant will note that the provisions listed above do not provide an absolute guarantee, but contain a qualification, that measures necessary in a democratic society may be taken even if they breach the ECHR. The practice of Strasbourg, however, is to read rights widely, to allow consideration before a court of the merits of a claim, and to restrict the coverage of the ECHR by way of the margin of appreciation afforded to states to act out of necessity. A balancing exercise is required the rights of the defendant facing trial against the interest of society in effective law enforcement and crime control the right to be free from crime, in effect. The battles will not always be won, but they will be fought, and courts must grapple with the issues arising from the ECHR in a consistent fashion, paying close attention to the well developed Strasbourg jurisprudence whilst ensuring a particularly British flavour.

As well as a prohibition upon criminalisation, in some circumstances, the ECHR may positively require the use of the criminal sanction, to protect the rights of victims that, of course, find equal protection under the ECHR. Particularly worthy of note is the recent case of A v UK (Application No.25599/94) which required not only the availability of a criminal charge, but also its effectiveness. Here, a 9-year-old boy was beaten on the buttocks with a garden cane by his stepfather, with sufficient force to cause bruising. The acquittal of the stepfather on the grounds of reasonable chastisement was held to breach the boy Article 3 s right to freedom from inhuman or degrading treatment or punishment. Mrs Justice Arden, the immediate past Chair of the Law Commission, identifies four areas of the criminal law that will see changes arising out of the HRA: ? ? Investigative powers of police (especially surveillance and entrapment). ? ? The criminal process - with more pleas of not guilty bolstered by human rights arguments, more appeals and more skirmishes over side issues such as bail. ? ? Sentencing - particularly the proportionality of sentences - a key example being the provisions of the Crime (Sentences) Act 1997 imposing an automatic life sentence for conviction of one of a list of serious offences (including rape and manslaughter) if the defendant has a prior conviction for a serious offence, unless exceptional circumstances exist. Mrs Justice Arden believes this to be open to challenge under the ECHR. ? ? Substantive criminal law little considered thus far, but a fertile area for challenge. Classification of Proceedings as Criminal Prof. Andrew Ashworth notes that an important issue will be what a criminal charge is, for Article 6 speaks particularly to criminal proceedings. Professor A.T.H. Smith also views this as an important threshold issue. Strasbourg has considered this a matter for independent evaluation, and will not be tied by the vocabulary of national legislation. Therefore, in the case of Benham v UK (1996) 22 E.H.R.R. 293, where the applicant faced imprisonment for non payment of community charge in what was styled as a civil procedure, the European Court held that the proceeding was criminal in nature and that the applicant ECHR rights had been s breached by the denial of legal representation. A similar issue was considered by the Divisional Court in the case of R v Corby JJ ex p. Mort, The Times, March 13th 1998 in relation to fine enforcement proceedings. Prof. Ashworth contends that, under the HRA, the test should be that applied in Benham and the key questions should be whether the proceedings are brought by a public authority, have punitive elements and have potentially serious consequences. He consider that fine enforcement proceedings would qualify as criminal, as would new civil powers given to magistrates to make anti-social behaviour orders under s.1 of the Crime and Disorder Act 1998. Any future plans to allow for the civil commitment of persistent sex offenders would be similarly open to challenge. The key principle is that what matters when determining the nature of an action is its punitive effect, and not the way in which it is presented by the state. There is a wealth of jurisprudence in the United States under the auspices of the double jeopardy clause relating to when a proceeding styled as civil may be so punitive in effect as to preclude a subsequent criminal proceeding.

Examples of Criminal Offences that may be Challenged under the HRA Mrs Justice Arden suggests the following offences may face challenge under the new regime: The criminalisation of homosexual acts. The European Court found a breach of Article 8 right to privacy in the Dudgeon v UK (1981) 4 E.H.R.R 149, arising from the criminalisation of consensual homosexual acts in private in Northern Ireland and a further breach arising out of the differential ages of consent for homosexual and heterosexual intercourse, in the Commission case of Sutherland v UK (1997) 24 E.H.R.R CD22. Unlawful act manslaughter - may fall for consideration relating to the issue of whether subjective or objective fault is required by the ECHR, and the Law Commission has made recommendations for reform, to clarify this rather vague area of the law of homicide. Offences that discriminate on the basis of gender - article 14 prohibits discrimination in the application of ECHR rights, and Mrs Justice Arden considers that offences confined to one gender, such as the criminal offence of living off immoral earnings (applicable to men only) may fall foul of the ECHR. Vague offences - offences requiring a determination of whether an individual is loitering may fall foul of the ECHR insistence upon clarity and certainty in the drafting of criminal laws. Also, in the Law Commission Report No155, dealing with fraud and deception, the Commission were unable to recommend a generally phrased offence of dishonesty precisely because of ECHR vagueness concerns. Burden of Proof and Reverse Onus Provisions This is an issue that can be viewed as straddling the boundary between substantive offence construction and the rules of the law of evidence and procedure. Professor Sir John Smith considers that one of the issues that will arise under the HRA is the consistency of reverse onus provisions that serve to shift the burden of proof onto the defendant with regard to certain elements of the offence with the presumption of innocence guaranteed by Article 6(2) of the ECHR. The case of R v DPP ex p. Kebilene & others (CO/5065/98, March 30, 1999) involved two criminal offences contained in ss.16A & 16B of the Prevention of Terrorism Act 1989. For s.16A, the prosecution did not need to prove mens rea or elements of the actus reus, and for s.16B, the prosecution did not need to prove the mens rea. The Divisional Court, on an application for judicial review of the Director of Public Prosecution decision to s bring charges under the two sections, held that the provisions were incompatible with the ECHR and any conviction would likely be quashed by the Court of Appeal once the HRA was in force. The applicant contended that reverse onus provisions that placed the burden on a defendant to disprove a substantial ingredient of the offence breached Article 6(2). Only where the burden placed on a defendant in respect of an exception, proviso, excuse or qualification was reasonable and did not affect the gravamen of the offence would the measure be consistent with the ECHR. Bingham CJ considered and approved a dictum of the Canadian Supreme Court (Dickinson CJ in R v Whyte (1988) 51 D.L.R (4th) 481 at 493) to the effect that where the accused, to avoid conviction, was required to prove some fact, even on a balance of probability, this offended against the presumption of innocence because a conviction was

allowed despite a reasonable doubt as to the guilt of the accused. Professor Smith contends that this is a principle wide enough to generally apply to reverse onus provisions, though he notes that some infringement of the presumption of innocence may still be condoned, where the justification is clear and convincing (in the words of Langa J of the South African Constitutional Court - State v Mbatha (1996) 2 L.R.C. 208 at 218). Laws LJ considered that the Strasbourg jurisprudence emphasised the notion of striking a fair balance between the interests of the community in the prevention of crime and the rights of the individual defendant. From the judgment of the Divisional Court, Professor Smith extracts the following principle: All reverse onus provisions (including exceptions, provisos, excuses and qualifications) are invalid unless it can be shown the instant provision is necessary in the public interest. Of course, it seems clear that no provision relating to an essential ingredient of the offence will be permissible. Professor Smith considers that, under the interpretation provision of the HRA, it is possible to read the offending sections of the Prevention of Terrorism Act to be consistent with the ECHR, by looking at the burden on defendants as an evidential one. The defendant must tender some evidence to support his case leaving the prosecution with the burden of persuasion and therefore the ultimate burden of proof. This is of some concern to Professor Smith, as he considers that when one departs from a rule of interpretation based on the ordinary and natural meaning of words, it is hard to know where to stop. To avoid the problem, Professor Smith commends the adoption of clause 8 of the Draft Bill constructed by the Criminal Law Revision Committee (Eleventh Report, Cmnd. 4991, para. 140) which expressly provides for such a division of the burden of proof, and thereby preventing pointless litigation to establish the issue on a case-by-case basis. Strict Liability Some or all strict liability offences may be vulnerable to a strict application of Article 6 of the ECHR. The recent case of B v DPP [1998] 4 All E.R. 265 is a useful illustration. Here, a 15 year old boy was convicted of an offence under the Indecency with Children Act, inciting a child under 14 to commit gross indecency, in that he asked a 13 year old girl for oral sex. He had thought the girl to be 14, but was nonetheless convicted, and his appeal was rejected on the grounds that even an honest belief, reasonably held, was no defence. This was with some reluctance due to the serious nature of the offence, which carried, at the time, a maximum of 2 years imprisonment (now 10 years). Professor Sir John Smith believes that a bold application of s.3 of the HRA could see this decision being overruled, and that even if the nature of liability was acceptable for an offence with a maximum of 2 years imprisonment at stake, 10 years would be an entirely different matter (thus illustrating the possible of a fresh evaluation of offences upon a change of penalty). A further argument that appeals to Professor Smith is that if it would be unfair to require the defendant to prove that he had reasonable grounds to believe a victim was over 14 (a reversing of the burden of proof), it would be much more unfair to deprive him of any opportunity to do so, by making the issue irrelevant to a conviction. The only possible answer is that the former issue relates to trial fairness, the province of Article 6, whilst the latter relates to the substantive criminal law. It seems clear that this distinction is forced and

unpersuasive, as the substance of the criminal law can have a great impact on the overall fairness of a trial. Professor Ashworth considers it not yet clear how the article may be applied to reverse onus provisions and strict liability offences that appear to violate the principle that the prosecution must prove its case beyond a reasonable doubt. The case of Salabiaku v France (1998) 13 E.H.R.R. 379 holds that offences of strict liability do not breach Article 6(2) per se, nor do presumptions having the effect of reversing the burden of proof on a point in issue. They must, however, be kept within reasonable limits. With regard to strict liability offences, the Strasbourg jurisprudence on Article 6(2) is relatively undeveloped, and that the UK courts may need to seek guidance elsewhere. They could follow the Canadian approach and give substantial weight to the magnitude of the penalty, rejecting strict liability offences that impose stiff custodial sentences. The second option is based on the concept of reasonable limits contained in the Salabiaku case, striking down reverse onus clauses where they are not rationally connect to the objective sought, or do not satisfy the requirement of proportionality. In the Privy Council case of Attorney-General for Hong Kong v Lee Kwong Kut [1993] A.C. 951. Lord Woolf held that the prosecution must be responsible for proving the essential elements of an offence, applying a provision of the Hong Kong constitution substantially the same as Article 6(2). Prof. Ashworth feels this an acceptable way of applying ECHR principles in these situations. Gladstone Williams Principle (honest belief in the need to use objectively excessive force) In the context of the prevention of crime & effect arrest (Criminal Law Act 1973 s.3) and selfdefence or the defence of others (regulated by the common law), any use of force must be reasonable in the circumstances. Professor Smith notes that unreasonable force is not justified, and amounts to a civil wrong, but may be excused by the criminal law if the individual using force holds an honest though mistaken believe in the existence of circumstances in which the force would have been reasonable. Andrew Ashworth, commenting upon the case of Andronicou and Constantinou v Cyprus (1998) 25 E.H.R.R 491, contends that the right to life in Article 2 of the ECHR demands a more exacting standard, that such beliefs must be based on good reason. Situations under Article 2 where killing is justified are exhaustive, and open to no extension, even by analogy. The case of John Kelly v UK (Application No.17579/82, 39 D.R. 93) precludes a justification based upon the prevention of crime, although the shooting dead of a terrorist was held acceptable because it was necessary to effect a lawful arrest. Professor Smith points out the absurdity of this justification, and the impossibility of arresting a corpse. The ECHR may not always require the use of a criminal sanction, and an action in tort may suffice (the cases of Farrell, Kelly, McCann and Stewart as all involve a civil claim). Yet see above for circumstances where a criminal charge is a matter of positive obligation. Where death results, the charge still need not be murder and a charge of gross negligence manslaughter (Adomako [1995] 1 A.C. 171) may be sufficient where there is a grossly unreasonable mistake in the use of lethal force in the context discussed here.

Professor Smith also considers the inconsistency that would exist if Article 2 were held to compel the removal of the defence of honest mistake, in that it would still be available in situation where serious injury, but not death results, as Article 2 would not bite. For this reason, and the others outlined, Professor Smith opines that the ECHR should not be interpreted to require this change to the English law. Mrs Justice Arden notes that the Law Commission has considered the ECHR angle when drafting reports for a number of years, for example, in the report on Offences Against the Person, it was considered whether placing the burden of proof upon the defendant in respect of the defence of duress, breached the presumption of innocence in Article 6(2), before determining that the burden could reasonably lie with the defence without any risk of a ECHR violation. In the Money Transfers report, the Law Commission advised against any provision having retrospective effect, due to the prohibition of retroactive laws in Article 7. In the report on Corruption, the commission noted that the current legislation creates a presumption of corruption in certain circumstances, and that this posed a possible problem under Article 6(2), particularly if coupled with adverse inferences from silence introduced by the Criminal Justice and Public Order Act 1994. No definitive position was taken on the ECHR issue, but the report recommended the presumption be dropped nonetheless. In the Consents to Prosecution report the Law Commission felt it advisable to require the consent of the Director of Public Prosecutions in any private prosecution where the defendant was likely to argue his ECHR rights had been violated by the bringing of a prosecution. Criminal Code Mrs Justice Arden, the immediate past Chair of the Law Commission, sees the HRA as the possible impetus for a codification of the criminal law, a step long overdue, she feels, for various reasons. The passing of the Act is a new and pressing need for reform. A comprehensive criminal code has been a Law Commission goal of long standing, and although the policy of advocating full scale change has been changed for pragmatic reasons, it remains the view of the Commission that in the interests of fairness, certainty, accessibility, coherence and consistency, a code is needed. One advantage of the drafting of such a code is a opportunity to ensure offences comply with the ECHR. Ideally, there would be four codes: ? ? substantive law (offences against the person, dishonesty, corruption, offences against public order and sexual offences, with possible add-ons at a later date including defences of general application, jurisdictional matters and accessory liability). ? ? sentencing. ? ? evidence. ? ? Procedure. In conclusion, Mrs Justice Arden argues that, the criminal law faces a choice ... between having a strategy and an overall vision of a well considered, consistent, coherent and modern criminal law on the one hand, and on the other hand patching up an area of law which is already seriously defective and out of date under a policy of mend and make do.

Conclusion
The effects of the Human Rights Act upon the substance of the criminal law in the United Kingdom can only be guessed at before the commencement of judicial oversight, but it is clear that there will be plenty of scope for arguments to be made, and they could well succeed if the courts take an enlightened view of their new powers of statutory interpretation and judicial review. It may well be that the government would be wise to enact wholesale reform, perhaps in the guise of a criminal code, or at least by pre-emptively amending the most flagrantly inconsistent offences. This would certainly reduce the necessity for piecemeal reform on a case-by-case basis, with all the scope for inconsistency that brings. One thing is certain, that the constitutional landscape of the United Kingdom has been changed irreversibly, and the courts have a mandate to make direct reference to the guarantees of the ECHR for the first time. Parliament may retain its sovereignty, but if the judiciary grasps the nettle, it will be subject to review and supervision by an independent, domestic judicial body for the first time in the country history. The substance of the criminal law, s however, is only one part of the picture. The second of this brace of articles will turn to an area even more fertile for challenges under the HRA, criminal procedure.

NOTE: The views expressed in this article are those of the author and are not necessarily those of any member of 2 Bedford Row.

Sources
The Hon. Mrs Justice Arden DBE, CRIMINAL LAW AT THE CROSSROADS: THE IMPACT OF HUMAN RIGHTS FROM THE LAW COMMISSION PERSPECTIVE AND THE NEED FOR A CODE S [1998] Crim L.R. 439. A.T.H. Smith, THE HUMAN RIGHTS ACT AND THE CRIMINAL LAWYER: THE CONSTITUTIONAL CONTEXT [1999] Crim L.R. 251. Prof. Andrew Ashworth, ARTICLE 6 AND THE FAIRNESS OF TRIALS [1999] Crim L.R. 261.

Also, recent articles in the New Law Journal read for general background.