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English Criminal Procedure and the Human Rights Act 1998*

  • J.R. Spencer


The European Convention on Human Rights is one of the manifestations of the Council of Europe, an organisation of European states founded in 1949 with the aim of strengthening the common democratic heritage. It is an international treaty which binds the contracting States to respect the list of human rights and freedoms it proclaims. An enforcement mechanism exists in the form of the European Court of Human Rights (in this paper called ‘the Strasbourg court’).

In brief, these rights and freedoms are the right to life (art. 2); freedom from torture or inhuman and degrading treatment or punishment (art. 3); freedom from slavery or forced labour (art. 4); the right to liberty (art. 5); the right to a fair trial (art. 6); freedom from retrospective criminal laws (art. 7); the right to respect for private and family life, home and correspondence (art. 8); freedom of thought, conscience and religion (art. 9); freedom of expression (art. 10); freedom of peaceful assembly (art. 11); and the right to marry and found a family (art. 12). Over the years, this initial list of rights has been expanded by a series of additional Protocols — not all of which have been ratified by all the Member States. The First Protocol, which Britain has ratified, guarantees the right to peaceful enjoyment of possessions, education, and free elections.



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1 After the death penalty had finally been abolished by the Crime and Disorder Act, 1998.

2 “1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have free assistance of an interpreter if he cannot understand or speak the language used in court.

3 Funke v. France (1993) 16 EHRR 297; Murray v. UK (1996) 22 EHRR 29; Saunders v UK (1997) 23 EHRR 313.

4 [1996] 1 CrAppR 463.

5 Saunders v. UK, supra n. 3.

6 One case that provoked particularly strong reactions was the decision in McCann & Others v. UK (1996) 21 EHRR 97, where (by a narrow majority) the Strasbourg Court declared that when the S.A.S. shot dead of group of suspected terrorists who were wrongly thought to be armed and on the point of detonating a car-bomb in Gibraltar, the United Kingdom had contravened art. 2 of the Convention (the right to life).

7 See the White Paper, “Human Rights Brought Home: The Human Rights Bill”, CM 3782 (1997).

8 Which, by sec. 1 of the Act, means rights guaranteed by the Convention itself, or the Protocols which the United Kingdom has ratified.

9 A body which disappeared when the enforcement machinery was revised in 1998; its functions are now carried out by an enlarged Court.

10 (1530) 22 Hen. VIII ch. 9.

11 It will usually be possible for the courts to refuse to apply secondary legislation that conflicts with Convention rights (see sec. 3 of the Act).

12 (1978) 2 EHRR 25.

13 Police and Criminal Evidence Act, 1984.

14 Police and Criminal Evidence Act, 1984 secs. 76 (2) and 76 (8).

15 [1979] Ch.D 344.

16 In defence of the judge in the case, he also said “this case seems to me to make it plain that telephone tapping is a subject which cries out for legislation”.

17 Malone v. United Kingdom (1984) 7 EHRR 14..

18 Police Act, 1997, Part III.

19 Khan [1997] AC 558.

20 See generally Arlidge, , Eady, and Smith, , Contempt of Court (Sweet & Maxwell, 2nd ed., 1999).

21 Sunday Times v. UK (1979) 2 EHRR 245.

22 Contempt of Court Act, 1981, sec. 5.

23 See for example AG v. Unger [1998] 1 Cr App R 308 (where a newspaper published details of the accused's confession).

24 Youth Justice and Criminal Evidence Act, 1999, Schedule III.

25 Criminal Justice and Public Order Act, 1994, sees. 34-37.

26 Murray v. UK (1996) 22 EHRR 29. As a result of the decision, however, Parliament has had to amend the legislation to preclude adverse inferences being drawn against suspects who refuse to speak to the police until they have had legal advice: Youth Justice and Criminal Evidence Act, 1999, sec. 58.

27 So held in a long series of cases, including Unterpertinger v. Austria (1991) 13 EHRR 175; Kostovski v. Netherlands (1990) 12 EHRR 434; Delta v. France (1993) 16 EHRR 574.

28 Criminal Justice Act, 1988, secs. 23-28; Criminal Procedure and Investigations Act, 1996, sec. 68 and Schedule 2; on the latter, see Munday, R.J.C., “The Drafting Smokescreen”, (1997) 147 New L.J. 792 and 860. See more generally Spencer, J.R., “Orality and the Evidence of Absent Witnesses”, [1994] Crim. L.R. 628.

29 Thomas and Flannagan [1998] Crim. L.R. 887.

30 At the time of writing, the case of Venables and Thompson v. UK is pending at Strasbourg, in which two young boys who were convicted of murdering a toddler claim they were denied a fair trial because the proceedings took place in an adult court — as they always do in England at present when juveniles are accused of homicide See [1999] Crim. L.R. 579. If the UK is condemned, this decision will probably result in certain changes to the way in which the trials of some young offenders are conducted.

31 On 16 December 1999 the Strasbourg Court condemned the U.K. in the case of V. v. The United Kingdom (Application no. 248888/94). The case involved two young boys who had been convicted in 1993 of murdering a two-year-old boy, James Bulger. Their proceedings took place — as they always do in England when a juvenile is accused of homicide — in an adult court. The circumstances of the trial were held to have deprived the boys of their right to a fair trial. This condemnation has already led the Lord Chief Justice to issue, on 16 February 2000, a Practice Direction designed to make the trial of juveniles in such cases less intimidating, humiliating and distressing for the defendants.

32 X v. UK (1981) 4 EHRR 188; Wilson, Thynne and Gunnell v. UK (1991) 13 EHRR 666; Wynne v. UK (1994) 19 EHRR 333; Hussain and Singh v. UK (1996) 22 EHRR 1.

33 In outline, various forms of special tribunal now have the last word about the release from all kinds of indeterminate detention except for ‘mandatory life sentences’ — ones which the court is obliged by law to impose. See further Windlesham, Lord, “Life Sentences: Law, Practice and Release Decisions, 1989-93”, [1993] Crim. L.R., at 644 and chapters 7 and 8 of vol. 2 of the same author's Responses to Crime (OUP 1993).

34 Ashworth, Andrew, Sentencing and Criminal Justice (London, Butterworths, 2nd ed., 1995) 136et seq.

35 Ashworth, Andrew, The Criminal Process — An Evaluative Study (Oxford, OUP, 1994) 275284.

36 Nicholson, C.G.B., Sentencing Law and Practice in Scotland (Sweet & Maxwell, 2nd ed., 1992) 9.35.

37 At any rate, this is my personal experience when explaining it to French judges and prosecutors at the Ecole Nationale de la Magistrature.

38 Theoretically, it is open to the judge to ask the jury for a special verdict in the form of answers to a list of specific questions — on the basis of which the judge then decides whether the defendant is guilty or not. In practice, however, this is never done: see Archbold, , Criminal Pleading, Evidence and Practice (London, Sweet & Maxwell, 1999) 4467.

39 Even in the magistrates' courts, where guilt or innocence is usually decided without giving reasons, either side can require the court to give its reasons by invoking a process called appeal by way of case stated] Magistrates' Courts Act, 1980, sec. 111.

40 See, for example, the dicta in the case of Thompson (1962) 46 CrAppR 72.

41 Contempt of Court Act, 1981, sec. 8; the maximum penalty is 2 years' imprisonment and an unlimited fine.

42 van Dijk, P. and van Hoof, G.J.H., Theory and Practice of the European Convention on Human Rights (The Hague, Kluwer, 3rd ed., 1998) 437438.

43 Harris, D.J., O'Boyle, M. and Warbrick, C., Law of the European Convention on Human Rights (1995) 215.

44 Criminal Justice (Terrorism and Conspiracy) Act, 1998 — which received the Royal Assent on September 4, 1998, less than a month after the bombing.

45 Archbold, supra n. 38, at 4-54- 4-73.

46 See Langbein, J.H., Torture and the Law of Proof (University of Chicago Press, 1977); Langbein, J.H., “The Criminal Trial Before the Lawyers”, (1978) 45 Univ. Chicago L.R. 263.

47 Langbein, J.H., “Torture and Plea Bargaining”, (1978) 46 Univ. Chicago L.R. 3.

* The effect of the Human Rights Act on English criminal procedure has produced a rapidly growing literature. See inter alia the articles by A.T.H. Smith, Andrew Ashworth, Sybil Sharpe, Steve Uglow and Philip Leach, (April 1999) Criminal L.R. And note the following books, the publication of which is imminent: Ben Emmerson and Andrew Ashworth, Criminal Law and the ECHR (London, Sweet & Maxwell, forthcoming); Peter Duffy, Stephen Grosz and Jack Beatson, Human Rights — The 1998 Act and the European Convention (London, Sweet & Maxwell, 2000); The Human Rights Act and the Criminal Justice and Regulatory Process, edited by the Centre for Public Law at the University of Cambridge (Oxford, Hart Publishing, 1999).

** Professor, University of Cambridge.

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English Criminal Procedure and the Human Rights Act 1998*

  • J.R. Spencer


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