Human Rights and Accountability
The European Commission has a web page outlining its views on victims’ rights
Cadder – The Right of Access to a Solicitor
The most significant human rights development in the past year came when the United Kingdom Supreme Court considered the case of Cadder . In 2009, Peter Cadder was convicted of two assaults and a breach of the peace at Glasgow Sheriff Court following an incident in the city in May 2007. His conviction relied in part on confession evidence given in a police interview conducted without a lawyer present. He argued that the procedure in Scottish criminal law, which allows police to question people without legal representation for up to six hours before an arrest, contravened his human rights. This was based on the results of a 2008 case at the European Court of Human Rights in Strasbourg in which it was held that access to a lawyer during criminal proceedings was part of the fundamental right to a fair trial under Article 6 of the European Convention on Human Rights (“ECHR”).
In 2008, the European Court of Human Rights, examining the case of Salduz v Turkey, decided that suspects should have access to a lawyer from their first interrogation, unless there were compelling reasons not to grant access. That decision had been considered in Scotland at the end of 2009 when a bench of seven Judges held that other safeguards available in Scotland meant that access to a solicitor was not an essential aspect of a fair trial. In Cadder the Supreme Court decided that these other safeguards were laudable but beside the point.
They held that our denial of access to a solicitor was contrary to the ECHR. As a consequence of the decision the Scottish Government introduced emergency legislation the very next day. The Criminal Procedure (Detention, Legal Assistance and Appeals) Act  went through Holyrood [the Scottish Parliament] in an afternoon, prompting much criticism. It doubled the permitted time-limit for detention to 12 hours, with a further extension to 24 hours also possible in appropriate cases. It also introduced restrictions on appeals, including restrictions for those complaining of a miscarriage of justice through the Scottish Criminal Cases Review Commission. Even the Commission criticised this step and the way it was taken[ 39].
It was argued that the Act went much further than required to deal with the implications of Cadder. Indeed it was argued that precautionary measures introduced by the Lord Advocate in June 2010 should have been allowed to continue in order to ensure proper parliamentary scrutiny of the Government’s legislative reaction to the Supreme Court’s decision. In the aftermath of the decision the Advocate General for Scotland held a short consultation about the manner in which the Crown were held to account in relation to human rights issues. He considered the advice of an Expert Group and reported thereafter. Amendments were suggested to the Scotland Act although the detail of these was not available for Parliamentary scrutiny. The Lord Advocate made representations to the Scotland Bill Committee at Holyrood which some think may dilute the human rights protections currently available to people in Scotland, in particular by restricting the right of appeal to the Supreme Court.  A further consultation was announced to deal with matters .
Prisoners’ Voting Rights
The issue of prisoners’ voting rights resurfaced as the UK Government had continued to delay implementation despite the clear direction from the Council of Europe and the European Court of Human Rights. In November 2010, in the case of Greens and M.T. v. the United Kingdom, the Grand Chamber of the European Court of Human Rights held, unanimously, that there had been a violation of Article 3 of Protocol No. 1 (right to free elections) to the ECHR and no violation of Article 13 (right to an effective remedy) of the Convention.
The case concerned the continued failure to amend the legislation imposing a blanket ban on voting in national and European elections for convicted prisoners in detention in the UK. The Court found that the violation was due to the United Kingdom’s failure to execute the Court’s Grand Chamber judgment in Hirst v. UK No. 2 delivered on 6 October 2005, in which it had also found a violation of Article 3 of Protocol No. 1. Applying its pilot judgment procedure, the Court gave the UK Government six months from the date when Greens and M.T. becomes final to introduce legislative proposals to bring the disputed law/s in line with the Convention. The Government is further required to enact the relevant legislation within any time frame decided by the Committee of Ministers, the executive arm of the Council of Europe, which supervises the execution of the Court’s judgments 43. The UK Government allowed a free vote at Westminster on the issue in February 2011 and an overwhelming majority voted to defy the European Court. Although some change seems inevitable, and welcome, there is significant momentum at present for an unhelpful confrontation in relation to our international human rights commitments.
Submission on a UK Bill of Rights
“The Scottish Human Rights Commission (SHRC) has emphatically rejected the proposal of a UK Bill of Rights. This was the primary question posed in the consultation process of the UK Government appointed Commission of Inquiry on a Bill of Rights, which closed on Friday (11 November).
Key points made by SHRC to the Commission on a Bill of Rights include:
- There is a definite need to retain and build upon the Human Rights Act. It should not be substituted by a weaker UK Bill of Rights which makes government less accountable to the public. To ensure practical and effective implementation of the European Convention of Human Rights all of the human rights contained in the Human Rights Act and all of the mechanisms within the Act should be retained – not weakened.
- The status quo is not acceptable either. SHRC’s recommendation is that all of the UK’s international human rights obligations are incorporated into domestic law, including the UN Convention on the Rights of the Child, the UN Convention on the Rights of Persons with Disabilities and the International Covenant on Economic, Social and Cultural Rights, which is overdue. These protections for the public are all the more necessary in the present times of austerity when budgetary decisions need to be made in ways which do not disproportionately impact upon the most vulnerable in our community.
- In addition to retaining the Human Rights Act, SHRC is promoting a more forward and outward looking approach of engaging with the public, Scottish Parliament and Scottish Government in shaping Scotland’s National Action Plan for human rights. This will be a practical roadmap to progressively bring the living experience of all, particularly the most vulnerable, up to the standards of the international human rights legal obligations already ratified by the UK.”
41 http://www.scottish.parliament.uk/s3/committees/scotBill/or-11/sb11-0602.htm#Col476 or http://archive.scottish.parliament.uk/s3/committees/scotBill/ScotlandBill.htm
Leave a Reply
You must be logged in to post a comment.