Memorandum from the Attorney General
1. OVERALL ASSESSMENT
1998 AND EXPERIENCE
1.1 The prosecution systemby 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 DSShas 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
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
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.
Trials held in the absence of
Provisions governing the cross
examination of complainants in sexual cases about their previous
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 farand it is early
dayshave 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. LIKELY IMPLICATIONS
1998 FOR THE
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. OTHER POINTS
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
Lord Williams of Mostyn QC