LAW, EVIDENCE

law, evidence

Law and Evidence

Introduction

There is an ever-increasing view that the Human Rights Act 1998 has been something of a jurisprudential damp squib in the sphere of criminal law and evidence. I like to think that the development of human rights law in this sphere has been a bittersweet symphony: much promised yet little delivered. There is also the quasi-imperialist view that Europe has nothing to teach this country about human rights: Britons drafted the Convention and this country is the mother of civil rights. Well the number of violations of the ECHR recorded against the U.K. should resoundingly answer this point. However, the coming into force of the Act has created a disturbing irony: since October 2, 2000, some of the most draconian provisions in the modern era have been introduced by the Government. The Terrorism Act 2000 (the Act received the Royal Assent before the HRA came into force but many of the provisions came into effect later) and the Anti-Terrorism, Crime and Security Act 2001 expanded both the definition of terrorism and the powers to combat it. The far-reaching powers contained in the latter provision led the Government to derogate from Article 5 of the ECHR just over a year after the HRA came into force (see, S.I.s, 2001 No. 3644; 2001 No. 4032). This decision flies in the face of the Government's commitment to human rights and would have proved difficult to justify: see, Demir v. Turkey, 33 E.H.R.R. 43. The derogation has now been withdrawn. As Professor Andrew Ashworth Q.C. has pointed out, recent legislation appears to provide “slender safeguards for which there was a possible argument of Convention compatibility”. Such a “minimalist attitude” tends to undermine Convention rights. This minimalism is to be found at its height in the Criminal Justice Act 2003. We now have the hastily drafted provisions of the Criminal Justice Act 2003 and the Sexual Offences Act 2003: textbooks. Even more draconian provisions are promised including possible amendments to the HRA to reduce its effectiveness. Judges are being openly threatened about standing in the way of the Government's plans on terrorism. All this from a Government who claimed that the HRA was “the most significant statement of human rights in domestic law since the 1689 Bill of Rights”.

This Government's primary approach appears to be a demonisation of human rights lawyers rather than the protection of human rights. Even the Tories reported intention to repeal the HRA had to be withdrawn when it was pointed out that one of their principal spokesmen had fully supported the Bill. We are, I think, approaching a critical conflict between our human rights obligations and the knee-jerk reactions of the Government.

THE OPERATION OF THE ACT

The importance of the HRA goes far beyond the mere incorporation of Convention principles into domestic law. A crucial feature of the Act is the interpretative technique it embeds in our law. In R. v. A. (No. 2) [2002] 1 A.C. 45, Lord Steyn explained the impact of section 3 of the ...