Unfortunately the Express does not publish online so I can't link to an excellent article by Simon Kernick, a novellist, with the headline "How law and order has been betrayed by the crazy Human Rights Act". It would be good if a copy of this article could be deposited with the porters of every QC in London and at the offices of all solicitors.
In brief, he describes how Lisa Potts saved children from being hacked to death with a machete and was herself badly injured as a result. She could not work for at least five years and was awarded £68,000 compensation. Since then, £2.7 million was awarded by the prison service to a prisoner last moonth allegedly for negligence over a failed suicide bid. The sum of £72,000 was paid to another prisoner who fell over and hurt his back.
I know that some lawyers have an amazing capacity to think that justice is whatever a court decides. But most of us, who are not lawyers, think this sort of thing is absurd and disgusting.
Mr Kernick goes on to described specific ways in which the Human Rights Act does harm.
1. The spiral of compensation claims made by prisoners. Payouts in this area have risen sixfold since 2003-04.
2. Rights of supsects 'including such gems as the right to a quiet home life' have made surveillance operations a potential minefield.
3. It is practcally impossible to deport foreigners convicted of a crime in Britain to their home countries if there is even a remote possibility of torture or mistreatment. This applies to terrorist suspects, too. So we keep in our society those who want to kill us.
4. Police are no long allowed to take the risks that used to be normal. They are no longer allowed to pursue criminals over rooftops, for example, because it is perceived as too dangerous and could give rise to a negligence claim.
5. In court, the benefit of the doubt seems to be given to the accused, not the accuser.
I am not sure that the Human Rights Act really has a role in the last of these but I would not be surprised if it does.
I am convinced, though, that the Human Rights Act has handicapped the fight against crime, that is has therefore made this country a less safe place in which to live for ourselves and our families and that it has taken away the ability of lawmakers and enforcers in Britain to exercise common sense.
Posted by James Bartholomew • Indexed in Behaviour & Crime
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A lawyer friend sends me the following response which at least appears to be be powerful:
You are being beguiled by half-truths and sensation-seeking journalists! There is an answer to all Mr Kernick's points. I shall take but one, otherwise I'll be on the mail allday!
Article 8(1) of the European Convention on Human Rights provides:-
"Everyone has the right to respect for his private and family life, his home and his correspondence."
But his is not an absolute right: it is qualified. Article 8(2) states:-
"There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national society, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
So yes: a public authority cannot bug its citizens just because it fancies finding out more about their private lives. Bugging can be undertaken if (a) there is a law regulating how it is done (which in the UK there is) and (b) it falls within one of the permitted exceptions to the general principle of respect for a private life. As you will see, an invasion of the right to a private etc life is permitted if it is necessary (for example) "..for the prevention of disorder or crime.."
Never in a month of Sundays would a Court rule that it was unlawful to bug someone that the police reasonably thought was, or might be, engaged in crime. I doubt that the point has even been challenged in a court because the answer is so blindingly obvious to those who have actually read the whole of Article 8. But the very fact that it has not been considered by a judge enables some ill-informed commentator, with no knowledge of what Article 8 says or how the law is applied in practice, to say that bugging a suspected criminal is a "minefield". It isn't. Mr Kernick is wrong.
I can't resist dealing with one other point. Article 3 of the Convention says:-
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
Article 3 is unqualified: the right not to be tortured etc is absolute. This does therefore mean that you cannot deport people from the UK to a country where there is likelihood that they will be tortured. It makes no difference whether the person being considered for deportation is a saint or a sinner. I would suggest that it would be quite wrong and morally indefensible to treat sinners any differently to saints. Neither group should be put into a position where they may be tortured. (I'll find the decison in the Afgan high-jackers case for you.)
Posted by: James Bartholomew at June 6, 2006 12:57 PM
My 'lawyer friend' says he is willing to be indentified. He is Philip Vaughan of Simmons and Simmons.
Posted by: James Bartholomew at June 6, 2006 02:43 PM
I would suggest that it would be quite wrong and morally indefensible to treat sinners any differently to saints.
Quite frankly that is stupid. Someone who chooses to murder or rape people in the land where he is a guest, can hardly expect to stay here.
If he gets torured when he goes home, so what. He would have been safe if he hadn't broken the law. Its not our job to maintain his safety.
Posted by: Serf at June 6, 2006 03:16 PM
Well, we as a nation or a people we should also be within our rights not to permit this person to roam at will.
They should have a choice: detention with hard labour or leave the country.
Posted by: Tim at June 7, 2006 10:13 AM
I agree with Serf.
It is not "morally indefensible" to treat sinners differently to saints.
When someone comes into your home and starts causing trouble, you kick him out. End of story.
Posted by: Max at June 7, 2006 01:41 PM
Is it just the UK that has problems with the Act? Do other european countries want to rip it up?
I'm guessing that the problem is not with the Act itself, but one of interpretation.
Posted by: John Doe at June 13, 2006 01:39 AM
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"5. In court, the benefit of the doubt seems to be given to the accused, not the accuser."
Isn't this normally called "Presumption of Innocence"?
I think you need to be a bit clearer on what you mean.
Posted by: The Pedant-General at June 6, 2006 11:59 AM