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Joint Committee On Human Rights Minutes of Evidence

Memorandum from the Attorney General


  1.1  The prosecution system—by which I mean primarily the Crown Prosecution Service, but also the very many other prosecuting authorities such as the Serious Fraud Office, the DTI and the DSS—has in my view responded to the introduction of the Human Rights Act in a conscientious, intelligent, well organised and well co-ordinated way, with the Crown Prosecution Service very much in the forefront of the preparatory work and training.

  1.2  Prosecutors anticipated the main legal issues that were likely to be the subject of early and developing challenge. As a result, prosecutors and caseworkers have been well prepared to meet these challenges and to present cogent and effective arguments in court. Chief Crown Prosecutors report that prosecutors and caseworkers are developing increasing confidence in analysing ECHR issues and meeting challenges. This in turn is raising the profile of prosecutors in their local areas, enabling them to be proactive within the criminal justice system in embedding the Act's principles into the criminal justice process.

  1.3  This positive response to the Act in its first few months can be attributed to, among other things:

    —  The thorough training programme devised by the CPS, which was delivered over two and a half days (with additional pre and post course work) to nearly 3,000 lawyers and caseworkers in the six months before the Act came into force. The training programme itself followed an extensive awareness raising exercise designed to promote discussion and thinking about ECHR issues from an early stage. Many CPS Areas have maintained a continuing training commitment since the Act came into force.

    —  The co-ordinated sharing of the CPS training and materials, whether by way of inviting delegates on CPS courses or running joint courses with prosecuting authorities such as the Environment Agency and DTI, adapted as necessary. Members of the Bar, defence solicitors, police, law College academics and Probation Service also had the opportunity to be trained on CPS courses.

    —  The development of "Points for Prosecutors", through the ECHR Criminal Issues Co-ordination Group (chaired by an official from the Legal Secretariat to the Law Officers and comprising prosecutors from around 20 prosecuting authorities as well as representation from the Home Office and Lord Chancellors' Department). This document provides guidance to prosecutors identifying the aspects of current legislation most likely to be challenged, and the arguments that can be deployed by the prosecution in response. That guidance, which was also largely drafted by the CPS (in consultation with the Group) is published on the LSLO website and so is also available to defence practitioners. So far, I am not aware that unexpected challenges to legislation have been faced.

    —  The internal CPS Manual of Guidance, which gives prosecutors and caseworkers access to information directly relevant to all aspects of their work, including the main Convention cases.

    —  The direct support to prosecutors provided by the CPS Policy Directorate's ECHR telephone helpline, together with regular bulletins and newsletters that have kept prosecutors up to date with developments since 2 October.

    —  The distribution of the minutes of the weekly meetings of the ECHR Fast Track Group (to which I refer in more detail below). This has provided Chief Crown Prosecutors with a national perspective on the ECHR issues being raised in cases across the country, and which they can respond to.

  1.4  Prior to the Act coming into force, a number of particular areas of the criminal law had been identified as likely to face challenge. The main areas in which ECHR based arguments have so far been deployed (largely to enhance existing lines of challenge) are listed below. In many cases, these have already been the subject of judgments from the Divisional Court or Court of Appeal clarifying the law, or cases shortly to be heard in the Court of Appeal or House of Lords:

    —  Bail hearings and breach of bail proceedings. This was a challenge to the ability of courts to determine whether a defendant had breached conditions of bail (such as curfew or contact with witnesses) without hearing live evidence from witnesses. A judgment provided by the Divisional Court on 15 December 2000 resolved this issue, upholding the existing domestic position, and the argument is no longer deployed.

    —  The privilege against self incrimination. Also challenges to the admissibility of the identity of the driver provided in response to notices under section 172 of the Road Traffic Act 1972.

    —  Confiscation of the proceeds of crime and drug trafficking.

    —  Covert surveillance operations.

    —  Reverse onus provisions.

    —  Entrapment.

    —  Trials held in the absence of the defendant.

    —  Provisions governing the cross examination of complainants in sexual cases about their previous sexual history.

    —  The automatic life sentence following conviction for a second serious offence.

    —  Procedures governing the trial of young people.

    —  Abuse of process, particularly on the ground of delay.

  1.5  As expected, Article 6 challenges based on the right to a fair trial are the basis of most challenges, many of which manifest themselves in applications for the exclusion of prosecution evidence relying on section 78 of the Police and Criminal Evidence Act 1984. The overwhelming majority of the challenges prosecutors have faced in practice so far—and it is early days—have been dealt with at first instance and resolved in favour of the prosecution. But it is inevitable that the courts will from time to time make rulings that the prosecution or defence seek to challenge. To meet this, again through the medium of the ECHR Criminal Issues Co-ordination Group, prosecuting authorities have set up an ECHR Fast Track Group.

  1.6  This comprises a small group of prosecutors from the CPS, DTI and HM Customs and Excise together with an observer from the Lord Chancellor's Department, who meet weekly with lawyers at the Legal Secretariat. The Group seeks to identify rulings or issues with wide implications for the administration of criminal justice, and which need to be resolved speedily to clarify the correct approach to the law. Where the ruling is subject to one of the available appeal, routes, the Group recommends to the appropriate court authorities that the case should be fast tracked, giving reasons. The ultimate decision as to when to list such cases however remains firmly for the judicial authorities.

  1.7  A number of authoritative judgments have already been handed down by the senior judiciary or are awaited shortly on major ECHR issues. I believe that this has been possible because of a combination of the mechanisms within the higher courts themselves to spot issues needing early resolution, and the work of the ECHR Fast Track Group. These judgments will in turn inform the approach of the Magistrates' and Crown Courts to ECHR arguments.

  1.8  Magistrates, the judiciary and prosecution and defence lawyers have all in the last few months been coming to terms with the implications of the Convention for their cases and getting used to new arguments and new ways of thinking. This is still a settling in period. The CPS has found that the increased responsibilities of magistrates to explain the reasons underlying their decisions has brought benefits, both in deciding whether the ruling ought to be challenged and in providing feedback to the police on case preparation issues. It is perhaps not surprising that prosecutors have also found that magistrates are taking time to think carefully about how best to articulate their reasons before doing so, but this is entirely understandable and indeed is already showing signs of settling down.


  2.1  It is difficult to predict to what extent the fairly calm experience of the criminal courts so far in implementing the Human Rights Act will continue. It is reasonable to expect that as defence lawyers become more experienced at identifying Convention points, new challenges will be identified and these will become increasingly well formulated and argued. Equally, early decisions by the higher courts together with the fast tracking of key cases should continue to assist in clarifying quickly the more significant issues.

  2.2  One point that the Human Rights Act has highlighted is the limited routes of appeal available to prosecutors in respect of rulings made in the Crown Court. There has been an increasing awareness of the provisions of the Criminal Procedure and Investigations Act 1996, which provides for preliminary hearings on matters of law and admissibility of evidence. Prosecution and defence are increasingly seeing this option as an attractive way of resolving human rights and other legal issues by way of binding ruling in advance of the trial. This may well have considerable benefits in terms of dealing with matters well in advance of the hearing, and generally speeding the process along. There is also a limited right of appeal that, so long as it does not cause delay, is proving useful to both prosecution and defence in ECHR matters. Against that background I look forward to the publication of the Law Commission's Report on prosecution rights of appeal.

  2.3  The Act has also actively contributed to a raised awareness among CPS prosecutors of the rights of victims and witnesses. Prosecutors are using the Convention to highlight the scope of the rights of victims and witnesses in the criminal process, and how and to what extent these (and the rights of society as a whole) are to be balanced against the rights of the accused.

  2.4  The effect of human rights issues on prosecution decision making overall is difficult to measure objectively, but all reports indicate that CPS prosecutors appear to have embraced human rights principles with enthusiasm, and that they are endeavouring to apply and give effect to the principles of the Convention in their day to day work, with increasing confidence.


  3.1  You have raised a number of other points which you have suggested I may wish to address in responding.

  3.2  My functions as Leader of the Bar of England and Wales are not such as would enable me to comment in detail, or with authority, on the overall effect on the Bar. My own impression is that individual barristers, and the profession as a whole, have approached the incorporation of the Convention both responsibly and with enthusiasm.

  3.3  In advance of the entry into force of the Human Rights Act, the Director of Public Prosecutions made clear that the Crown Prosecution Service would not continue to instruct criminal practitioners unless they were able to demonstrate competence in this new and important area of law. The Bar Council in association with the Criminal Bar Association has been involved in delivering an extensive series of two courses aimed at criminal law practitioners: these have been attended by some 4,600 practitioners. Courses have also been organised by other specialist Bar associations and regional circuits. The Bar has in addition played a significant role in helping the Judicial Studies Board to deliver its programme of judicial training.

  3.4  The Bar clearly has in important role to play in ensuring that individuals have access to good legal advice to ensure that their rights are protected. It equally has a duty to ensure advise clients, and to argue cases, responsibly. I remain confident of the skill and professionalism of the Bar in meeting that challenge.

  3.5  In relation to the public interest, I would note that at the heart of the Convention there is the requirement that there must be a proper balance between the rights of the individual and the varying needs of the wider community. In this connection, the courts have recognised that difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society and that there may be some circumstances be a "discretionary area of judgement" within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is at issue.

  3.6  In addition, there is a need for a proper balance between the competing rights of individuals. By way of illustration, I intervened last Autumn at the request of the court to represent the public interest in the case of Venables and Thompson v News Group Newspaper Ltd. In that case, the President of the Family Division considered the potential conflict between the right to freedom of expression under Article 10 of the Convention and the claimants' rights under Articles 2, 3 and 8 of the Convention.

  3.7  As you will appreciate, I am not in a position to comment on advice which I may have provided in my capacity as legal adviser to the Government. I understand that you will be seeking evidence from others on the impact of the Human Rights Act within their areas of responsibility. I am however in a position to observed the care and rigour with which the Act and its legal implications, have been approached by Departments. The rights themselves of course are not new. Successive United Kingdom Governments have been involved in interpreting and applying the Convention for over 50 years. The Act has however in my experience served to heighten awareness of these rights within, as well as outside, Government.

Lord Williams of Mostyn QC

March 2001

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Prepared 18 April 2001