To what extent do criminal law of England and wales conflict the European convention protected by the Human Rights Act 1998 In UK.
The European convention contains the decision of European court of human rights, commission of human rights and committee of ministries of council of Europe. These legislations are however not biding in wales and England. Sec. 2 of HRA mandates domestic courts to take Strasbourg jurisprudence into account and give practice recognition to principles it lays down. This should be done whenever considering the meaning of effects of articles in the convention. In cases of conflict between the convention and domestic laws, courts below the Supreme Court, remain bound by the domestic precedents even when it contradicts the EU convention. In the case Lambeth LBC V. kay (2006), UKHL 10, the Supreme Court indicates that, it will generally follow the EU convection but that on rare instances, it too will decline to follow a decision of the convention giving reasons for adopting this course of R V Horncastle and others, 2009, UKSC 14.
The Human Rights Act 1998, UK, provides freedom and rights to its citizens further giving remedy for breach without the need to go to EU Court of Human Rights. The act makes it unlawful for public bodies to act in ways which incompatible with the convention. The acts require the judiciary to take note of much decision or judgement of the EU court of human rights and interpret legislation, in ways compatible with convention rights. However, of such interpretation cannot be achieved, the judges are not allowed to override, but issue a declaration of incompatibility. This declaration does not however affect the validity of the act of parliament. In England, criminal conduct remains an offence against the whole community rather than private individual affected.
The England and wales human rights act allows arrest without warranty in cases where an offence has been committed. Such arrests are permitted to suspects, and those guilty of offence. Additionally the authorities have the power to enter and search their residences while arresting such suspects. Such a process contradicts the convection rights however by one need to know why they are being prosecuted or arrested in a clear language and have the right to free interpreter in the court in case there is a language barrier. England and wales practice a common legal system established from the earlier cases hence is the law created by judges.
The European convection, protected by the Human Rights Act UK, has established that the convention must be interpreted in the light of changing day conditions to ensure fair trial rights. As a result, older cases may be of less relevance in understanding the current application of fair trial rights than more recent decisions. The convention also requires that convention rights be interpreted using a purposive rather than a purely literal approach. The general purpose of the convention is to protect individual rights, maintain rule of law and uphold ideas and values of democratic society.
Section 3(1), of the HRA imposes a duty on domestic courts to read and give effect to primary legislation in a manner which is compatible with convention rights whenever possible. In cases where it is impossible to interpret primary legislation, in a compatible manner, the high court and court of appeal and Supreme Court have the power to make a declaration of incompatibility under section 4 of the HRA. After that, the parliament decided if to change the law. Until the parliament acts, the primary legislation remains in force and enforceable.
The convention also seeks for fair balance between the conflicting rights of the community and those fundamental rights of the individual guaranteed by the various articles of convention. The doctrines of proportionality bring out the balance. It is necessary that, any convection right must remain proportional to the legitimate aim being pursued. With the effort to satisfy this requirement, any public body interfering with a convention right must show to the court that, the action will not arbitrary or unfair, the restriction remains limited to what is required to achieve a legitimate public policy and the severity of the effect of the restriction does not outweigh the benefit to community that is being sought by the restriction. Interference is unacceptable especially if it has imposed unreasonable burden on individuals likely to be found to be in breach of the convention rights in question. I cases where the breach is serious, an application to stay the proceedings as an abuse of process would remain successful.
The CPS seeks to uphold and protect human rights of victims, defendants and witnesses in criminal cases. Prosecutors and their supporters need to understand the convention rights, and spot any possible breach and eliminate any negative impact of the case at an early stage. Failure to comply with provisions of HRA possesses serious consequences for a prosecution. A breach of any rights guaranteed under convention, for example the rights to private life or the freedom form in human or degrading treatment, could lead to the exclusion of significant evidence under section 78 of PACE, in case to breeds unfair proceedings. In accordance to the law. For example, in the case Malone v UK, 7 E.H.R.R 14.
Under the convection, any victim or injured party can bring proceedings against a public authority. Any burden of prove remains the public authority duty to justify. Claims under HRA can be used to challenge the decision of prosecutors or seek compensatory awards for breaches of human rights guaranteed under the convention. A claim brought in conjunction with an action arising from an existing tort like negligence, can claim breach of section 6. All legal aspects include article 8(1) to respect private life. The court will however consider if the interference remains justifiable under the article 8(2). Interference can only ne justifiable if in the interest of national security or of the prevention of crime, given that it is necessary and proportionate. The conventional rights are classified into absolute, qualified and limited rights.
Absolute rights, is where the public authorities cannot depart from their duties under absolute right even in times of war or other national emergencies. Again an absolute right cannot be balanced against the needs of other individuals or public interest except in rare case where two absolute rights are balanced against each other. The limited rights remain similar to absolute rights for they cannot be balanced. However, the government is entitled under the convention rights to derogate form their application in times of war or national emergencies. The right to liberty in article 5, and right to fair trial in article 6 are good examples of limited rights. The derogation however can only be passed by the secretary of state justice under section 14 and 16.
Qualified rights on the other hand, can be restricted only in times of war or national emergency but also to protect the rights of others or public interest. Generally, qualified rights are structured such that, the first part of the article sets out the rights, while the second part establishes the grounds on which the public authority can legitimately interfere with that right in order to protect the wider public interest.
Notably, most conventional rights remain negative in nature. They place a duty on the state and the public bodies to refrain from activities which would interfere with individual rights. However, some articles like article 8 and 2 place appositive duty on state authorities to take active steps to safeguard a person’s convention rights.
The convention has faced challenges from different states especially England and wales. The rights can be relied on in challenges to admissibility of evidence in the magistrate courts. Magistrate’s courts need to follow biding domestic precedents, even when they appear to inconsistence with subsequent European decisions. They should do such until the conflict is cleared by the high court or Supreme Court. Either court can challenge any decision achieved by the magistrate court especially if it violates the human rights.
During trials, conventional issues are raised. Such issues provide an appropriate mechanism for issues arising out of the convention to remain trapped in advance of the trial itself and for the judge to make a ruling under section 40 of criminal procedure and investigation act 1996, UK. Although the CPIA does not have right of appeal, such may lie under Section 58 of the Criminal Justice Act, UK. In case ether ruling is terminated. In criminal law, a prisoner always has the right not to be found equity of an offence arising out of actions which at the time they committed they were not criminal.
England and wales do not have any criminal code though such has been recommended and attempted. Many criminal offences are common law offences rather being specified in the legislation. Article 2 of human rights UK, protects right to life meaning no body including the government, can try to end your life. The courts have decided that, the right to life does not include a right to die. This article makes the death penalty illegal in the UK.
The five key stages of criminal justice include investigation, and arrest, pre-trial, trial sentence and correction. Each stage has its own processes to ensure every person rights are met. Unlike the EU, requirements, the England and wales system ensures public services, like police, prosecution services, and courts work together to deliver criminal justice. The European community legislations are increasingly affecting the England and wales criminal procedures. Although there are few similarities, the differences remain adverse. There is less separation of power in England that United States. The executive and legislative branches of government are brought closely together by parliamentary system of government whereby the executive branch of government is formed by the political party with majority of seats in the House of Commons. With the elected party controlling the legislation, their arises chances of conflicts between the executive and legislative branches.
Individuals have the rights of fair trial and human rights even while at the courts. England records involvement of nonprofessional participants handling victims and prisoners. These people include magistrates, police officers, and those overseeing the prisons. The voluntary ground contains a well-organized system of pressure and lobby groups. Recently we have private sectors running private prisons under commercial companies like the wells Fargo, Securicor among others. Such leaves the prisoners under commercial private sectors unlike the state controlled institutions.
Conclusion
Wales and England practice a separate legislation which contradicts the EU conventions in human rights application especially in rights to fair arrest and hearing, use of resent case references, and overriding decision which contradict the convection. The European convention aims at protecting human rights and ensuring the right legal procedures are followed with all rights given to the victims. In criminal cases, the convention mandates innocence until proven guilty and the right to fair trial with respect to personal life, witnesses and defendants unlike in the England and wales law were different bodies the legal system work collectively involving unprofessional teams to handle the victims thus compromising human rights.
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