Joint Committee On Human Rights Second Report


SECOND REPORT


The Joint Committee on Human Rights has agreed to the following Report:

CRIMINAL JUSTICE BILL

Summary

In this Report we explain our view that most of the provisions of the Criminal Justice Bill, including those relating to the limitation of trial by jury, are likely to be compatible with human rights, either because they do not interfere with rights or because the interference is likely to be justifiable. In the case of some provisions, however, the Committee has reservations about the adequacy of safeguards for important rights. The Report examines in particular—

— a new power for constables to release arrested people on bail before taking them to a police station, concluding that they are likely to be compatible with ECHR Article 5;

— changes to the safeguards for property rights when a person is taken into custody (clause 6), recommending further attention to this matter;

— the compatibility of the double jeopardy provisions with Convention rights and rights under the ICCPR, concluding that they are likely to be compatible;

— the compatibility of provisions for admitting evidence of bad character and hearsay evidence (clauses 81 to 102) with the right to a fair hearing, drawing attention to the risk of incompatibility in a number of respects;

— the compatibility with the right to a fair hearing and the right to respect for private and family life of denying certain unrepresented young offenders access to reports prepared on them at the sentencing stage (clauses 143 and 144); and

— the compatibility of provisions for exchanging information between bodies in connection with assessing the dangerousness of certain offenders with the right to respect for private life (clause 262), concluding that they are unlikely to be incompatible with ECHR Article 8.

The Structure and Purposes of the Bill

1. The Criminal Justice Bill, which received its first Reading in the House of Commons on 21 November 2002 and is now in Committee, contains a wide-ranging set of proposals relating to criminal procedure, evidence and sentencing. Explanatory Notes have been published.[1]

2. The proposed changes to criminal procedure and evidence are mainly intended to allow more efficient use of police time, and to make the criminal justice system less protective of defendants. These objectives are to be achieved in a number of ways, particularly—

  • by increasing police powers (Parts 1 and 2 of the Bill);

  • by allowing conditions to be attached to the decision to caution rather than prosecute adult offenders (Part 3);

  • by allowing proceedings to be instituted by way of a "written charge" rather than by laying an information for a summons (Part 4);

  • by imposing additional disclosure requirements on defendants and, in some circumstances, prosecutors (Part 5);

  • by changing the rules on allocating offences triable either on indictment or summarily to the magistrates' court or the Crown Court (Part 6);

  • by providing for trials on indictment to take place before a judge without a jury in some circumstances (Part 7);

  • by allowing evidence to be given by live links in some circumstances (Part 8);

  • by allowing for prosecution appeals against certain rulings in criminal cases (Part 9);

  • by removing the protection against double jeopardy, that is being tried a second time for the same offence, in some circumstances (Part 10); and

  • by allowing evidence of bad character, including evidence of a defendant's previous convictions, as well as hearsay evidence and evidence by video tape, to be given in some circumstances, and to allow notes to be used by witnesses to refresh their memories (Part 11).

Several of these initiative give rise to human rights issues, and will be considered further below.

3. The proposed changes to sentencing (Part 12) cover a very wide range of issues, but only a few of them seem to us to raise human rights issues requiring to be drawn to the attention of the two Houses. These include in particular—

  • provisions about the disclosure of pre-sentence reports where the defendant is a child (clauses 143 and 144); and

  • a provision relating to the sharing of information when assessing risks posed by certain offenders (clause 262).

We have examined these matters, and report on them below.

4. The Home Secretary wrote to the Chair of the Committee on 6 December 2002 explaining the genesis of the proposals in the Bill, and stating the Government's intention to ensure compatibility with Convention rights and to assist the Committee. Our Chair wrote on 10 December raising a number of questions about the Bill, and the Government responded, with commendable promptness and thoroughness, on 18 December 2002 in a letter from Lord Falconer of Thoroton. The correspondence was published as an appendix to the Committee's First Report of 2002-03.[2] In that Report, the Committee intimated that it would publish its considered views on the Bill in the light of the response in due course. That we now do.

Matters not requiring detailed Consideration on Human Rights Grounds

5. We do not consider that the proposed limitations on jury trial under Part 7 raise any human rights issue, despite their politically controversial nature. Trial by jury in serious criminal cases has long been regarded as an important bulwark against oppressive use of the criminal justice system by the state, and the right to trial by one's peers has rightly been regarded as one of the core aspects of a fair criminal procedure since the first signing of Magna Carta in 1215. Nevertheless, the right is not enshrined in international human rights treaties. This is not surprising: while trial by jury remains an important right in common law jurisdictions and some civil law jurisdictions, there are many legal systems in which it plays little or no part. Those systems find other means of protecting people against oppression and of guaranteeing a fair trial. Whatever the merits of the jury system (and they are many and important), we do not consider that limiting the availability of trial by jury would in itself infringe human rights in their accepted international definition, as long as adequate alternative protection is provided against unfairness and the risk of oppression. Where no jury is involved, trial judges will have to provide that protection, and appropriate remedies (by way of appeal) will be available in cases where trial judges fail in that duty.

Provisions to which we draw attention on Human Rights Grounds

SAFEGUARDS FOR PROPERTY RIGHTS OF PEOPLE IN CUSTODY

6. Clause 6 of the Bill would remove the current obligation of the custody officer (under section 54 of the Police and Criminal Evidence Act 1984 [hereafter 'PACE']) to ascertain and cause to be recorded everything which a person has with him when he is arrested at a police station, or brought to a police station after being arrested elsewhere. On the face of it, this would remove a protection for the arrested person's right to the peaceful enjoyment of possessions, under Article 1 of Protocol No. 1 to the ECHR (hereafter 'P1/1'). The letter from the Minister suggested that the Bill does not engage P1/1, because it would not change the circumstances under which property may be removed from a person in police detention.[3] The Department also argues (and we entirely accept) that section 54 of PACE as amended would be compatible with P1/1.[4]

7. The question which continues to concern us is whether the lack of a record of everything in a detainee's possession removes an important safeguard for rights under P1/1. It is worth putting the provisions in their historical and legislative context. The Royal Commission on Criminal Procedure, whose report provided the basis for PACE, noted a "current practice of searching a person, listing and placing in safe keeping all his possessions on his reception under arrest at the station, and taking anything from him which he might use to harm himself or others. There is no statutory authority for this procedure". The procedure was undertaken for administrative reasons related to the responsibility of the police for the detainee and his possessions: the steps were desirable for "safe-keeping of the property, prevention of subsequent allegations of misappropriation by police officers and for the protection of themselves and the suspect while he is in custody". The Commission concluded, subject to certain qualifications, that the practice was justified, and recommended that it should be placed on a statutory footing.[5]

8. Section 54 of PACE was the result. The requirement to make a record was intended as a means of ensuring that the police carried out their responsibility to safeguard the property of a suspect while held in detention, and of protecting the police (and, one should add, other people detained with the suspect) against allegations that they had misappropriated property, as well as protecting the suspect, the police and others against the risk of harm from items which could be used to injure people. It also helps to safeguard the detainee against having evidence "planted" on him or her, and to protect the police against accusations of having planted evidence. The value of the record as a safeguard is enhanced by the requirement in the associated Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers (Code C, made under section 66 of PACE) that either the detainee must sign the custody record to show (among other things) that he agreed the list of property, or a record must be made of the fact that he or she had refused to sign.[6] As well as rights under P1/1, the record helps to safeguard the right of detainees and the police to a fair hearing in any criminal or civil proceedings arising out of the incident (ECHR Article 6). Under ECHR Article 1, the state has a duty to secure these rights for people within its jurisdiction, not merely to refrain from interfering with them. The requirement to make a record is one of the ways in which the United Kingdom meets its obligations under ECHR Article 1.

9. If section 54 is amended as proposed in clause 6, there would be no requirement in the PACE for any record of any property (including property seized from the detainee by the police) to be recorded. It would be necessary to amend Code C. It is not clear what requirements for record-keeping would be contained in the amended Code, as distinct from section 54 of PACE. It would be important to require, at least, a record to be kept of all items taken from the person arrested, and of the reasons for taking them. But the less information is recorded about the property in the possession of an arrested person, the more difficult it will be for the police to perform their responsibility to safeguard that property, and the more likely they (and other detainees) are to be laid open to charges of misappropriation of property. The first of these consequences would impact on the duties of the police as a public authority under P1/1 and section 6 of the Human Rights Act 1998. The second consequence, while not strictly a human rights matter, would be likely to lead to disquiet on the part of the police.

10. In the light of these considerations, we cannot accept the view of the Home Office that the amendment to section 54 of PACE would not engage Article 1 of Protocol 1 to the ECHR, or that no adverse consequences for human rights would flow from the repeal of the duty to record property. If section 54 of PACE is amended as proposed in the Bill, we recommend that, as a minimum safeguard for the rights of detainees and the police under Article 1 of Protocol 1 and ECHR Article 6, the amended version of Code C should require that a record be kept of any property taken from a detainee by the police, that it should form part of the custody record, and that the record should be signed by the detainee or, if he or she refuses to sign, that that fact should itself be recorded in the custody record.

EVIDENCE OF BAD CHARACTER

11. The Bill would allow evidence of bad character to be admitted under different conditions, depending on whether it relates to the bad character of the defendant or of another person. Evidence of the defendant's bad character is admissible if and only if—

    (b)  the evidence is adduced by the defendant or given in answer to a question put by him in cross-examination of a witness and intended to elicit it; or

    (c)  it is important explanatory evidence; or

    (d)  it is evidence of the defendant's conviction for an offence of the same description, or of the same category, as the one with which he is charged; or

    (e)  it is relevant to an important matter in issue between the defendant and the prosecution; or

    (f)  it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant; or

    (g)  it is evidence to correct a false impression given by the defendant; or

12. Under the current law, such evidence would be admissible only under (b), (g) if the false impression relates to the defendant having a good character, and (h) if the person is a prosecution witness. The widening of the law would thus be very substantial.

Definition of 'bad character' and the right to a fair hearing

13. The effect of the new rules becomes even clearer when the definition of "bad character" is taken into account: it covers not only previous convictions, but also other evidence "which shows or tends to show that—(a) he has committed an offence, or (b) he has behaved, or is disposed to behave, in a way that, in the opinion of the court, might be viewed with disapproval by a reasonable person".[8] This might include matters of questionable relevance, for example, evidence tending to show that a person has committed adultery, or cheated at cards, or engaged in excessive gambling, or that a man has got a woman (other than his wife) pregnant, or that a person has driven recklessly, or told lies to his or her girlfriend or boyfriend, or shown disrespect to a figure of authority. There appears to be a potential here for vague and impressionistic evidence to be given as to matters on which moral opinions may differ. In addition, it might tend to undermine the presumption of innocence. Unlike a previous conviction, such evidence will not be the result of an admission by the person concerned, or of evidence having been properly evaluated in previous criminal proceedings.

14. The impact is slightly alleviated by the requirement that the court must not admit the evidence if the defendant objects and it seems to the court that admitting it would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it, having particular regard to the length of time between the matters to which the evidence relates and the offence charged.[9] But the trial judge would bear a heavy responsibility for ensuring that the evidence could be introduced without interfering with a person's right to a fair hearing.

15. In view of the breadth of the categories of evidence that the Bill envisages being admitted, we entertain serious doubts as to whether judges would be able to discharge that responsibility in a reliable and consistent manner. As a result, the very wide definition of evidence of bad character seems to us to be intrinsically likely to represent a threat to the right to a fair hearing. We recognise that the Law Commission considered a similar definition to be acceptable, but after careful consideration we disagree, on human rights grounds. We recommend that admissible evidence of bad character should be limited to previous convictions, and we draw the matter to the attention of each House.

Irrelevant evidence and the right to a fair hearing

16. On first examining the Bill, we were concerned that these provisions might lead to a violation of the right to a fair hearing under ECHR Article 6.1. Of the grounds for admitting evidence of a defendant's bad character noted above, only (e) and (f) would require it to be relevant to an important issue in the case, while (c) would require his character to be either evidence without which other evidence would be difficult or impossible to understand properly, or to have substantial value for understanding the case as a whole.[10] This seemed to us to indicate that evidence of the defendant's bad character could be admitted under (a), (b), (d), (g) and (h) even if it has no direct relevance to any issue in the case. Admitting the evidence under (a), (b) or (h) might be justifiable in human rights terms: under (a) and (b), the agreement or voluntary act of the defendant would tend to prevent the admission of the evidence being unfair;[11] and under (h) the admission of the evidence might sometimes (though by no means always) tend to uphold fairness, in the sense of the equality of arms, between defence and prosecution. But under (d), (g) and sometimes (h), the Bill appears to contemplate allowing evidence of bad character, very widely defined, to be admitted even if it has no direct relevance to any issue in the case.

17. In his helpful reply, the Minister indicated, in relation to evidence to be admitted under paragraphs (d) and (h), that in his view bad character would need to be relevant to the case, having regard to the court's duty under clause 84(3) not to admit evidence if admitting it would make the trial unfair, and the court's discretion at common law (reinforced by the statutory discretion under section 78 of PACE) to exclude evidence where its prejudicial weight was greater than its probative value. "The clause is drafted in this way to avoid complicated debates where unnecessary".[12] In relation to (d) particularly, he suggested that if evidence of previous convictions had no relevance "it would almost inevitably be excluded". Indeed, the Minister considered that the Bill sends a "clear signal that whilst this evidence is to be approached on the basis that it is admissible, it is entirely legitimate for it to be excluded where its prejudicial effect outweighs its probative value".[13]

18. It is possible that the courts might take the Minister's words into account when interpreting these provisions.[14] However, it is by no means clear that a court would make use of the power to exclude such evidence, given that the statute expressly provides for such evidence to be admissible. The criteria for admissibility under paragraphs (e) and (f) refer respectively to evidence being "relevant to" and having "substantial probative value in relation to" an important matter in issue in the case. This might lead a court to the conclusion that evidence might properly be admitted under (a) to (d), (g) and (h) even if it is not relevant to any issue. In our view, clause 84 as originally drafted sends at best a mixed message about the admissibility of irrelevant evidence, not a clear signal. It appears to us that these provisions leave a high degree of discretion to the courts, and allow a high degree of subjectivity on the part of judges in an area where the case-law will inevitably be undeveloped. We are concerned that there is, as a result, a serious danger of unfairness and of miscarriage of justice. The Minister writes that the Government is "perfectly willing to make...clear that irrelevant evidence should almost inevitably be excluded".[15] We do not consider that irrelevant evidence should ever be admissible, and we consider that the matter can be reliably clarified only by amending clause 84 to ensure that the message is clear on the face of the Bill.

Equality of arms

19. We now consider two other points raised in relation to evidence of bad character. Both are concerned with the principle of the equality of arms between the defendant and the prosecution. For the purpose of our assessment, we accept that the provisions are not intended to permit prejudicial but irrelevant evidence to be admitted.

20. First, we consider the right to a fair hearing, and the difference between the ability of the prosecution to adduce evidence of a defendant's bad character and the ability of a defendant to adduce evidence of a co-defendant's bad character. A defendant could only produce evidence of a co-defendant's bad character on grounds (f) and (h) above (substantial probative value in relation to an important matter in issue between the defendant and a co-defendant, or co-defendant having attacked defendant's character).[16] These grounds are narrower than those on which the prosecution could assert the defendant's bad character. In his response, the Minister argues that the defendant is not at a disadvantage compared with the prosecution in the ability to adduce evidence of bad character. The purpose of the provisions is to allow relevant evidence to be admitted. Evidence of bad character adduced by a defendant against a co-defendant under (f) is not subject to the requirement that it must be excluded if admitting it would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. Overall, the Minister says, "a co-defendant is likely to be able to adduce a wider range of evidence about a defendant's bad character than the prosecution". The prosecution is therefore not "in a favourable position, in terms of their ability to adduce evidence, compared to a co-defendant".[17]

21. If that is the Government's intention, it is hard to understand why the various grounds for admitting evidence of bad character should have been drafted so differently. Only grounds (e) and (f) expressly, and ground (c) impliedly, contains any real requirement of relevance to a matter in issue in the case. Of these, (c) makes no distinction between evidence adduced by the prosecution and that adduced by the defence. But it is not clear why the Government proposes that evidence should be admitted in relation to an important matter in issue between the prosecution and a defendant if it is "relevant" to it, but should not be admitted in relation to an important matter in issue between co-defendants unless it has "substantial probative value". If that is not meant to disadvantage defendants in disputes with each other compared to the position of the prosecution in disputes with defendants, there seems to be no reason for the standard for admissibility to be expressed in different ways. We consider that there is a lack of clarity in the drafting of clause 84. It seems have implications for the principle of the equality of arms as between prosecution and defence which is part of the right to a fair hearing under ECHR Article 6. We draw to the attention of each House our view that clause 84 requires to be amended in order to make clear its effect on the right to a fair hearing in conditions of equality of arms under ECHR Article 6.

22. Second, we consider the difference between the prosecution's ability to adduce evidence of a defendant's bad character and a defendant's ability to adduce evidence of the bad character of a non-defendant. Clause 83(1) would allow a defendant to produce evidence of a non-defendant's bad character only if—

    (a)  it is important explanatory evidence; or

    (b)  it has substantial probative value in relation to a matter which is both in issue in the proceedings and of substantial importance in the context of the case as a whole; or

    (c)  all parties to the proceedings agree to the evidence being admissible.[18]

This is a narrower range of grounds than the list of grounds (set out in paragraph 11, above) for admitting evidence of the defendant's bad character under clause 84(1). In the letter to the Home Office, our Chair suggested that the list of grounds is further narrowed by—

  • detailed provisions in the Bill as to factors to be considered when deciding whether evidence has substantial probative value under (b), which do not apply to the equivalent assessment of probative value when the defendant's character is being traduced;[19] and

  • the requirement for the leave of the court before a non-defendant's character, but not that of a defendant, can be attacked.[20]

It seemed to us possible that this disadvantaged defendants so as to infringe the principle of equality of arms.

23. The Minister in his response concentrates on whether a defendant would be able to adduce all relevant evidence in his or her defence, and whether any restrictions or imbalance with the prosecution are justified. He points out that defendants, unlike non-defendants, would be able to apply to have evidence of bad character excluded, and argues that this justifies a more demanding test of relevance for admissibility of evidence of bad character of non-defendants.[21] He does not accept that the provisions in the Bill as to factors to be considered when deciding whether evidence has substantial probative value would narrow the basis on which evidence could be admitted. They are, he says, a non-exhaustive list of factors "designed to assist the court when considering whether evidence has substantial relevance to a matter in issue ... and are not intended to set out the basis on which this evidence is to be admitted or refused". The requirement for leave to adduce evidence of a non-defendant's bad character is said to reflect the different positions of non-defendants and defendants: a defendant will have had advance notice of the prosecution's case, and will have had an opportunity to apply for evidence to be excluded, unlike a non-defendant.[22] We accept this explanation, and do not consider, on reflection, that this aspect of the provisions would violate human rights.

HEARSAY EVIDENCE

24. Part 11, Chapter 2 of the Bill would extend the circumstances in which hearsay evidence could be admitted. It would make it possible to convict a person on the basis of hearsay evidence alone, without supporting evidence. The letter from our Chair to the Home Office raised the question whether this would be consistent with the rights of a defendant to a fair hearing under ECHR Article 6.1 and to examine or have examined the witnesses against him or her under Article 6.3(d), bearing in mind the case-law of the European Court of Human Rights and of courts in the United Kingdom. One can summarise this case-law as follows.

25. The European Court of Human Rights has accepted that hearsay evidence may be admitted in criminal proceedings in certain circumstances, but only if appropriate safeguards for the rights of the defence and the fairness of the proceedings are in place. The circumstances in which it might be appropriate to excuse a person from giving oral testimony of facts within his or her own knowledge include cases where evidence is provided by police informers[23] or witnesses who are abroad,[24] and those where oral evidence already given in foreign proceedings is used.[25] The essential point is that courts must be able to ensure that the trial is fair, taking account of the effect of evidence in the context of the case as a whole, and particularly that equality of arms and the rights of the defence are protected.

26. The European Commission on Human Rights, and courts in the United Kingdom, have decided, under the ECHR, the Human Rights Act 1998 and the Scotland Act 1998, that it is permissible under Article 6 to use as evidence statements previously made by people who do not give oral evidence at the trial,[26] as long as the court is able to ensure that fairness to the accused is maintained.[27] It appears to be permissible to rely entirely on hearsay evidence to establish a particular element of an offence (such as an intention to cause serious bodily harm on a charge of murder), without independent direct evidence to support the hearsay.[28] However, it might violate Article 6 if there were to be a conviction in a case where all elements of the offence were established entirely by hearsay evidence: the need for some supporting evidence to ground a conviction is one of the safeguards on which the European Court of Human Rights has insisted in other cases where there is an interference with the defendant's ability to examine witnesses against him.[29]

27. In his response to the letter from our Chair, the Minister observes that the Law Commission has concluded[30] that it would be unduly cautious to say that the Convention prevents a conviction being based on hearsay evidence alone, and was satisfied that safeguards such as those found in the present Bill (particularly the requirement for the court to direct an acquittal if a case depends wholly or partly on unconvincing hearsay) would provide adequate protection for the accused. Sometimes (as in the case of reliable business documents) there could be no better evidence than the hearsay evidence; everything depends on the facts of the individual case, but where hearsay evidence "is sufficiently convincing, it may safely and fairly found a conviction".[31]

28. In making our assessment of this argument, we begin by noting that the Strasbourg court has never yet decided a case in which a conviction based entirely on hearsay evidence has been held to be compatible with ECHR Article 6. At the same time, the Strasbourg case-law approaches the text of the ECHR as a living document, and interprets it in a dynamic way in response to new circumstances and arguments. One can accept, as the Minister argues, that it is possible to imagine cases in which hearsay evidence is so reliable and so compelling that it might, in some exceptional circumstances, be safe and fair to base a conviction entirely on it alone. We therefore accept that the Government might in certain rare and unusual circumstances be able to argue legitimately before the courts in the United Kingdom and Strasbourg that it would not violate ECHR Article 6 to base a conviction wholly on hearsay evidence, although we express no view as to the likelihood of the argument being successful.

29. If the courts were to accept such an argument, the outcome would probably depend on their assessment of the adequacy of safeguards to prevent a conviction being based on unsafe or unfair use of hearsay evidence. The Bill contains a number of significant and worthwhile safeguards against unfairness: hearsay evidence could be admitted only if authorised by statute or a rule of law preserved by the Bill, or all parties agree to its being admissible, or 'the court is satisfied that, despite the difficulties there may be in challenging the statement, it would not be contrary to the interests of justice for it to be admissible.'[32] In cases of this last type, the court would have to consider, among other relevant factors—

  • the probative value of the evidence;

  • the other evidence which has been or could be given on the matter;

  • the importance of the evidence to the case as a whole (although it is not clear whether this should tell against or in favour of admitting it);

  • the circumstances in which the statement was made;

  • the reliability of the alleged maker of it and of the evidence that it was made; the difficulty in challenging the statement; and

  • the extent to which that difficulty would prejudice a party.[33]

In addition, the general discretion to exclude evidence, if admitting it would make the trial unfair, would be preserved,[34] and the evidence could be excluded if the case for excluding it on other grounds substantially outweighs the case for admitting it.[35] In a jury trial, the judge would have to stop the trial if it turned out that the case against the accused was based wholly or partly on a statement not made in oral evidence which was so unconvincing that, considering its importance to the case against the accused, it would be unsafe to convict.[36]

30. Taking all the above factors into account, we accept that there might be rare cases in which it would not inevitably violate ECHR Article 6 to base convictions on substantially unsupported hearsay evidence. We think that, in these rare cases, trial judges would be able to operate the provisions in such a way as to respect Article 6 rights, and we are confident that, in exercising their discretion, they would give due weight to the fact that there is as yet no case in which the European Court of Human Rights has held a trial to be fair in which a conviction was based wholly on oral hearsay testimony which the defendant had no adequate opportunity to test. Nevertheless, we consider that there is potential for a violation of rights under Article 6, and we consider that the matter deserves to be drawn to the attention of each House.

DISCLOSURE TO CHILD DEFENDANTS OF PRE-SENTENCE REPORTS

31. Clauses 143 and 144 of the Bill deal with the circumstances in which pre-sentence reports, probation reports, and reports from youth offending teams are disclosed to defendants. The normal duty to give a copy to the offender would be subject to an exception under clause 143(3) where the offender is under 17 and is not represented by counsel or a solicitor. In this case, the copy would not have to be provided to the offender, but would have to be given to the offender's parent or guardian if present in court. Clause 144 would similar provision in relation to reports to the court by probation officers or members of youth offending teams. The Committee raised with the Home Office the possibility that this might violate three rights—

  • the right of the offender as a child to express his views freely in all matters affecting him or her, to have those views given due weight in accordance with the child's age and maturity, and in particular to have the opportunity to be heard in any judicial and administrative proceedings affecting him or her, either directly or through a representative or an appropriate body, under Article 12.1 and 12.2 of the UN Convention on the Rights of the Child ('CRC'); and

  • the right of the offender as a person to respect for his private life, under ECHR Article 8 and the Human Rights Act 1998, in circumstances where he or she is no longer in the care of a parent or guardian and/or does not want the parent or guardian to see the reports or to make representations to the court (although the Bill would not expressly give the parent or guardian a right to address the court in relation to the reports).

32. The Minister's letter accepts that the provisions are out of line with other provisions which set the age at which juveniles can make their own decisions at 14. The Department undertakes to amend the Bill so as to reduce the age in clauses 143(3) and 144(3) from 17 to 14.[37] We welcome the proposed amendment of clauses 143 and 144. Those amendments will substantially alleviate the concerns expressed in relation to Article 8 of the ECHR. In the light of it, we accept the Government's view that the provisions, in respect of unrepresented children under the age of 14, adequately balance the rights of the children with the responsibilities of parents for their children's welfare.[38]

33. In relation to the right under Article 12 of the CRC, the Minister argues that it can adequately be respected by allowing the child to appoint a legal representative, who would always have access to the reports under clauses 143 and 144.[39] We accept this, as long as arrangements are in place to ensure that independent legal representation would always be readily available to a child, whether or not the child's parent wants the child to have it. We draw to the attention of each House the importance of ensuring that such representation would be available.

34. We have more concerns in relation to the right of unrepresented child defendants aged under 14 to a fair hearing under ECHR Article 6 where reports are withheld from them. The Department accepts that the European Court of Human Rights has held, in respect of adult defendants, that an unrepresented defendant must have access to court documents.[40] However, the Department argues that it is sufficient to give a copy of the reports to a parent. The rationale for the relevant Strasbourg case-law[41] is said to be "that a person responsible for the conduct of the case must have access to the documents". The Department continues, "The argument above on Article 8 shows that the parent is responsible for taking some decisions about the case, by virtue of the exercise of his parental rights. Under section 34A Children and Young Persons Act 1933, the court is obliged to require a parent or guardian to attend court, where a person under the age of 16 is charged with an offence. Therefore, the effect of clauses 143 and 144 is that someone responsible for the conduct of the case will always have access to the reports".[42]

35. We disagree. While we accept that parents are responsible for taking some decisions, and are obliged to be present, it does not follow that they "are responsible for the conduct of the case". They have no duty to conduct the case on behalf of an unrepresented child defendant, and nothing in the Bill would impose that duty. Indeed, many parents would not be well suited to such a duty. We therefore do not accept that giving a copy of reports to the parents would satisfy the requirements of ECHR Article 6. The Minister's letter suggests that, in practice, children will usually be provided with the reports, unless the court directs that it would be impracticable to do so given his age and understanding, or undesirable to do so as he might suffer serious harm.[43] However, this impliedly acknowledges that there will remain circumstances in which children will be unrepresented and their parents will be unable or unwilling to represent them effectively in the proceedings. In such circumstances, we consider that there would be a substantial danger of violating of ECHR Article 6.1 unless the court is required to appoint a legal representative for the child. We draw to the attention of each House our view that it would be desirable on human rights grounds to amend clauses 143 and 144 to impose such a requirement.


1   Bill 8-EN Back

2   Joint Committee on Human Rights, First Report for 2002-03, Scrutiny of Bills: Progress Report, HL Paper 191, Appendices 1 and 2, pp. Ev 1-Ev 8 Back

3   Letter from Lord Falconer, paras. 6-7 Back

4   ibid., paras. 8-12 Back

5   Royal Commission on Criminal Procedure, Report, Cmnd. 8092 (London: HMSO, 1981), p. 61, para. 3.116 Back

6   Code C, paras. 4.4, 4.5 Back

7   Clause 84(1) Back

8   Clause 81(1); see also clause 90(2) Back

9   Clause 84(3), (4) Back

10   See clause 85 Back

11   In our letter to the Home Secretary, we suggested that (b) might be problematic because a question put to the defendant might open the way to admitting evidence of bad character. As the Minister pointed out in his reply (letter from Lord Falconer, para. 16), this was a misconception: ground (b) would apply only where the question is put by the defendant to another witness. Back

12   Letter from Lord Falconer, para. 18 Back

13   ibid., para. 20 Back

14   Pepper v. Hart [1993] AC 593, HL Back

15   Letter from Lord Falconer, para. 18 Back

16   Clause 84(1) Back

17   Letter from Lord Falconer, para. 21 Back

18   Clause 83(1) Back

19   Clause 83(3); cp. clause 84 Back

20   Clause 83(4) Back

21   Letter from Lord Falconer, para. 22 Back

22   ibid., paras. 23-24 Back

23   Kostovski v. Netherlands (1989) 12 EHRR 434, Eur. Ct. H.R. Back

24   X. v. Germany (1987) 10 EHRR 521, Eur. Commn. H.R. Back

25   S. v. Germany (1983) 39 DR 43, Eur. Commn. H.R. See Richard Clayton and Hugh Tomlinson, The Law of Human Rights (Oxford: Oxford University Press, 2000, with First Annual Updating Supplement 2001), para. 11.253, p. 669 Back

26   Criminal Justice Act 1988, ss. 23-26 Back

27   Trivedi v. United Kingdom (1997) 89 DR 136, Eur. Commn. H.R.; Quinn v. United Kingdom, App. No. 23496/94 (Merits), 11 Dec. 1997, at para. 80 et seq.; R. v. Gokal [1997] 2 Cr. App. R. 266, C.A.; R. v. Thomas [1998] Crim. L.R. 887, C.A.; McKenna v. Her Majesty's Advocate 2000 SCCR 159, High Ct. of Justiciary. Back

28   See Trivedi, above; Quinn, above; McKenna, above; Law Commission, Report on Evidence in Criminal Proceedings: Hearsay and Related Topics, Law Com. No. 245 (London: The Stationery Office, 1997) Back

29   E.g. Kostovski v. Netherlands (1990) 12 EHRR 434; Unterpertinger v. Austria (1991) 13 EHRR 175, Eur. Ct. H.R.; Delta v. France (1993) 16 EHRR 574, Eur. Ct. H.R.; Saidi v. France (1993) 17 EHRR 251, Eur. Ct. H.R.; Doorsen v. Netherlands (1996) 22 EHRR 330, Eur. Ct. H.R.; Van Mechelen v. Netherlands (1998) 25 EHRR 647 Back

30   Law Commission, Evidence in Criminal Proceedings: Hearsay and Related Topics, Law Com. No. 245 (London: The Stationery Office, 1997), Part V Back

31   Letter from Lord Falconer, para. 25 Back

32   Clause 98(1) Back

33   Clause 98(2) Back

34   Clause 98(3) Back

35   Clause 110 Back

36   Clause 109 Back

37   Letter from Lord Falconer, paras. 3 and 27 Back

38   See letter from Lord Falconer, paras. 31 and 32 Back

39   ibid., para. 38 Back

40   ibid., para. 34 Back

41   The Department refers to Kamasinski v. Austria (1989) 13 EHRR 36, Eur. Ct. H.R., and Kremzow v. Austria (1993) 17 EHRR 322, Eur. Ct. H.R. Back

42   Letter from Lord Falconer, para. 35 Back

43   ibid., para. 36, citing Magistrates' Courts (Children and Young Persons) Rules 1992 (S.I. 1992, No. 20171 as amended), r. 10(3) Back


 
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