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 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 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 and is probably not entirely possible.
The death penalty in Britain ended in 1964 and since then, nobody 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 involved in armed standoffs to protect themselves and the public and others 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 in Britain – 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.

Cruel, inhuman and degrading punishment.
Article 5 of the Universal Declaration of Human Rights prohibits the use of cruel, inhuman and degrading punishment but does not define what this means. It does not prohibit capital punishment per se. What is cruel and inhuman punishment? These are subjective terms at best. We can all probably agree that burning at the stake, for instance, would fit into this category, but is lethal injection cruel and inhuman? Is life in prison without the possibility of parole cruel and inhuman? Both of these punishments are regularly used in the US.
What does the word “degrading” mean? Is it making prisoners wear orange jumpsuits and handcuffs/leg shackles as happens in the USA? Is it locking people up at all? Surely being a criminal is degrading because one is seen as less because of one’s own actions.

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 physically tortures people, 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 by psychological torture.

The right to fair proceedings following arrest.
Haven’t heard 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 have the right to have 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 DNA and general forensic evidence etc., all of which should contribute to fairer trials.
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 last 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 should 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.

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