Joint Committee On Human Rights Thirty-Second Report

5  Rebalancing the Criminal Justice System


109. The proposals for implementing the conclusions and recommendations from the Home Office's Review of decision-making in the Criminal Justice, Immigration and Asylum Systems were published on 20 July 2006 in the form of its Report entitled Rebalancing the Criminal Justice System in favour of the law-abiding majority. This Report contains the Government's analysis of why in its view the criminal justice system needs "rebalancing in favour of the victim and the law-abiding majority", and sets out the Government's plans for doing so. Some of the proposals are clear proposals for action, together with a timescale for implementing them; others are proposals on which the Government intends to consult before deciding whether to implement them. In this part of our report we deal with those aspects of the proposals which in our view have significant human rights implications.

Perception or reality? The need for evidence

110. The premise of many of the Government's proposals in its Rebalancing paper is that the Human Rights Act has led to public safety being treated as being of less importance than the human rights of terrorists or criminals, or at least is perceived by the public to have had this result. There is assumed to be, or perceived to be, an imbalance between the right of the public to be safe and the rights of individuals, and on the basis of this assumption or perception there is asserted a need to redress this imbalance. The Government does not always make clear whether the justification for its proposals for change is that public safety is actually being prejudiced, or that the public perceives that its safety is being prejudiced so that action is required to provide reassurance.

111. When we asked Baroness Scotland whether she thought that the criminal justice system is currently biased against the law abiding majority, she said "The perception is that it is."[89] However, when asked whether she saw it as a perceived rather than an actual imbalance of the system, she said it was both, because traditionally the reality was that victims of crime were not well supported in the criminal process.[90] She made clear, however, that she was not suggesting that there is evidence that public safety is being prejudiced through some sort of imbalance, or that the rights of criminals and terrorists are being prioritised over the rights of victims.[91] It was more a case of maintaining public confidence in the criminal justice system. We welcome the fact that the Government does not appear to be asserting in this paper that there is an actual imbalance in the criminal justice system in the sense that public safety is in fact being prejudiced because the rights of offenders are being prioritised over the rights of victims.

The rights of victims

112. The Rebalancing Report proposes to enhance the involvement of victims in the criminal justice system, to ensure that victims' needs are at the heart of what the criminal justice system does. It makes a number of specific proposals to this end.

113. The rights of victims of crime are increasingly recognised by international human rights law. The case-law of the ECHR establishes that the effective protection of a number of Convention rights, including the right to life, the right not to be subjected to inhuman or degrading treatment, and the right to physical integrity, require States to provide the protection of the criminal law against violation of those rights by other private parties. The case-law also establishes that victims or their families are entitled to participate in the investigations required by Articles 2 and 3 ECHR to the extent necessary to protect their interests.

114. In addition, there now exist certain "soft law" standards concerning the rights of victims of crime. The UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985), for example, recognising that the rights of victims of crime have historically not been adequately recognised, and that victims may suffer hardship when assisting in the prosecution of offenders, set out a number of basic principles to guide States when deciding how to protect the rights of victims of crime. These include, for example, ensuring that victims are treated with compassion and respect for their dignity, have access to judicial and administrative mechanisms, are informed of the progress and disposition of their cases, can present their views at appropriate stages of the proceedings where their personal interests are affected, have their privacy and safety adequately protected, and receive proper assistance and where appropriate restitution or compensation.

115. The Commonwealth Guidelines for the Treatment of Victims of Crime (2002) provide similar best practice guidance on the legal framework which should govern the treatment of victims of crime. In recognition of the growing importance of victims' rights in international human rights law, the draft Bill of Rights for Northern Ireland, drafted by the Northern Ireland Human Rights Commission after extensive public consultation, includes in Section 10 express provision for the rights of victims, drawing largely on the soft law standards outlined above.

116. Many of the specific proposals concerning victims in the Rebalancing paper are implementations of these emerging international standards and, as such, enhance the UK's compliance with human rights law. However, it is important to note that the relevant international standards all contain the important qualification that the rights of victims shall not be secured at the expense of the well established rights of suspects or offenders such as the right to a fair trial and the presumption of innocence. The language of the Rebalancing paper, which describes the need to prioritise the rights of victims over those of offenders, often seems to be at odds with this important qualification. Some substantive proposals also appear to risk protecting victims at the cost of possible interference with the right to a fair trial, for example the proposal to increase use of live television links for victims rather than live evidence in court, which may raise questions of compatibility with the right of the accused to confront and cross-examine those giving evidence against them. While the administration of justice should command public confidence, justice should be above placating the media and public opinion. We therefore welcome the acceptance by Baroness Scotland that rebalancing must be not in a way that is unfair or unjust to the offender but better represents and supports victims.[92]


117. The Chahal case is frequently referred to by the Government in these documents as the best example of how the ECHR hampers the Government's efforts to counter terrorism and frustrates deportations of those who threaten public safety. In our view there are three important points to make about the Government's position in relation to this important case.

118. First, in its Rebalancing paper,[93] the Government states that the Court in Chahal found "that the UK Government could not consider the protection of the public as a balancing factor when arguing the case for the deportation of a dangerous person." This is not an accurate description of the effect of the Chahal. In fact, the decision in Chahal does not prevent the Government in all cases from taking into account the threat to public safety or to national security posed by a particular individual when deciding whether or not to deport him or her. The Government is allowed to consider the protection of the public when considering whether to deport a dangerous person, and frequently does so. The only set of circumstances in which it cannot do so because of the Chahal judgment is where it has first been established as a matter of fact that the person concerned faces a real risk of death or torture or inhuman or degrading treatment on their return. That will only ever be a relatively small number of cases, as the Lord Chancellor acknowledged in his evidence.

119. Second, in her letter and her evidence to us Baroness Scotland has somewhat refined the purpose of the Government's intervention in the Ramzy case. The Minister says that the UK's position in relation to death or torture are clear: it would never deport or extradite a person where there are substantial grounds for believing that they face a real risk of death or torture. It is in relation to inhuman or degrading treatment that the Government now says that it wishes to be able to balance the risk to national security on the one hand against the risk to the individual of inhuman or degrading treatment on the other. Inhuman or degrading treatment, the Government argues, is a much broader bracket than torture, and the Government says that it is wholly unreasonable not to allow public safety considerations to be taken into account even where Article 3 ECHR is engaged because of a real risk of inhuman or degrading treatment.

120. Third, even if the Government is prepared to countenance deporting somebody to a real risk of inhuman or degrading treatment, which it appears prepared to do, it would presumably only be prepared to do so in a case where the evidence of the individual's threat to national security is overwhelming. In such a case there is likely to be sufficient evidence to support a prosecution for one of the many criminal offences concerning terrorism now on the statute book.

121. The Committee has expressed its concerns in the past about the Government's attempt to overturn the Chahal case in the European Court of Human Rights, and nothing in the Government's refinement of its position allays those concerns. In our view, attempting to distinguish between inhuman and degrading treatment on the one hand and torture on the other is unlikely to find favour with the European Court of Human Rights. Given that ill-treatment has to reach a certain minimum level of severity in order to qualify even as inhuman or degrading treatment within the scope of Article 3, and that inhuman or degrading treatment may easily cross the line into torture in the sorts of places where it is practised, we also think that the Government's argument is a deeply unattractive one which can only damage the UK's standing amongst countries which pride themselves on their respect for human rights. In any event, we find it difficult to see how the Government's argument can help resolve its central problem of how to deal with those individuals whom it suspects of involvement in international terrorism but who cannot be returned to their country of origin because of the ill-treatment they will suffer there. Inhuman or degrading treatment at the lower end of the Article 3 spectrum is not the sort of treatment of which those individuals are likely to be at risk. They are more likely to face a real risk of either torture or death.

Race discrimination in the criminal justice system

122. The Rebalancing paper recognises that certain ethnic groups are disproportionately represented amongst those being stopped and searched, arrested, convicted of a serious crime, and imprisoned, and that this raises a question as to whether the criminal justice system contains any built-in discrimination on racial grounds. It also recognises that one of the current obstacles to addressing this problem is that the statistics currently collected do not tell us enough about where in the system it occurs, or the extent to which it is due to direct or indirect discrimination. The Government proposes to "implement a fundamental reform of the current ethnicity statistics collected under s. 95 of the Criminal Justice Act 1991."

123. We welcome the Government's recognition that certain ethnic groups are disproportionately represented amongst those being stopped and searched, arrested, convicted of a serious crime, and imprisoned, and that this raises a question as to whether the criminal justice system contains any built-in discrimination on racial grounds. We look forward to receiving more details about the "fundamental reform" in data collection which is envisaged, and hope that consideration will also be given to whether current training and guidance for front-line officers is adequate in this respect.

Diversion from custody

124. In the Rebalancing paper the Government recognises that too many non-dangerous people with mental health problems continue to be imprisoned, and accepts the need to explore how they can be more effectively diverted into appropriate treatments at an early stage in the criminal justice process. This was repeated by the Home Secretary in his statement to the House on developments in the prison population on 9 October 2006. This is a disturbing issue and coincides with one of the previous Committee's principal recommendations in its report on Deaths in Custody.

125. We welcome the Government's recognition that too many non-dangerous people with mental health problems continue to be imprisoned and await receipt at an early date of the Government's estimate of the numbers involved.

89   Q73. Back

90   Q74. Back

91   Q75. Back

92   Q73. Back

93   Rebalancing the Criminal Justice System, 20 July 2006, 2.13. Back

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Prepared 14 November 2006