Human Rights and Criminal Prosecutions: General Principles
- General Principles of Interpretation in Relation to Convention Rights
- Effect of Relevant ECHR Articles on the Prosecution Case
- Civil Liability under the HRA
- Classification of Convention Rights
- Convention Challenges in the Magistrates' Courts
- Convention Challenges in the Crown Court
- Application to the Review Process
- Recording Reasons
- Useful Links to further Information
The CPS is committed to upholding and protecting the human rights and fundamental freedoms of everyone who comes into contact with the criminal justice system, whether as victim, witness or defendant.
The CPS is a public authority for the purposes of the Human Rights Act 1998 (“the HRA”).
The Code for Crown Prosecutors provides:
"Prosecutors must apply the principles of the European Convention on Human Rights, in accordance with the Human Rights Act 1998, at each stage of a case."
It is unlawful, under section 6 of the HRA for the CPS to act in a way which is incompatible with any of the Convention rights incorporated into domestic law by the HRA. It is the responsibility of everyone who works for the CPS to ensure that the prosecution service complies with its obligations under the HRA. The CPS’ obligations extend to those who are the victims of crime or witnesses in the criminal process, as well as to those accused of committing crimes.
Strasbourg jurisprudence must be taken into account
European Convention ("Strasbourg") jurisprudence consists of the decisions of the European Court of Human Rights (ECtHR), the European Commission of Human Rights and the Committee of Ministers of the Council of Europe. These are not directly binding on courts in England and Wales.
However, section 2(1)(a) of the HRA requires domestic courts to take Strasbourg jurisprudence into account and give practical recognition to the principles it lays down when considering the meaning and effect of the articles under the Convention that are incorporated into domestic law.
This requirement to "take into account" the Strasbourg jurisprudence will normally result in courts applying principles that are clearly established by the Strasbourg Court Courts. Where there is a conflict between domestic and European jurisprudence, courts below the Supreme Court, save in extreme cases, are bound by domestic precedents even when they consider the precedent is inconsistent with the Strasbourg case law. In such circumstances the court might express its view on the possible inconsistency and give leave to appeal, for the issue potentially to be determined by the High Court or the Supreme Court, see: Lambeth LBC v Kay  UKHL 10, approved in Doherty v Birmingham City Council  UKHL 57. The Supreme Court has indicated that it will generally follow Strasbourg but that on rare occasions it too will decline to follow a decision of the Strasbourg court, giving reasons for adopting this course (R v Horncastle and Others  UKSC 14).
European case law has established that the Convention is a living instrument which must be interpreted in the light of changing, present day conditions. This is particularly relevant to fair trial rights, as the requirements of fairness have evolved over time, and the importance of the appearance of fairness as well as substantive fairness has grown. Older decisions may be of less relevance in understanding the current application of fair trial rights than more recent decisions. European case law also requires that Convention rights should be interpreted using a purposive rather than a purely literal approach: the general purpose of the Convention is taken to be the protection of individual rights, the maintenance of the rule of law, and the upholding of the ideas and values of a democratic society.
Interpreting Legislation under the Convention
Section 3(1) of the HRA imposes an obligation on the domestic courts to read and give effect to primary legislation in a manner which is compatible with the Convention rights whenever it is "possible" to do so.
Where it is impossible to interpret primary legislation in a way which is compatible with Convention rights, the High Court, the Court of Appeal and the Supreme Court (but not the Magistrates' or Crown Courts) have power under section 4 of the HRA to make a declaration of incompatibility. If such a declaration is made, it is for Parliament to decide whether to change the law. Until Parliament acts, primary legislation remains in force and enforceable.
The Convention seeks to achieve a fair balance between the sometimes conflicting rights of the community and those fundamental rights of the individual guaranteed by the various articles of the Convention. Central to achieving this balance is the doctrine of proportionality. This requires that any restriction of a Convention right (where this is permissible) must be proportionate to the legitimate aim being pursued. In order to satisfy this requirement, the public body interfering with a Convention right must show to the court that:
- what is being done is not arbitrary or unfair;
- the restriction is strictly limited to what is required to achieve a legitimate public policy; and
- the severity of the effect of the restriction does not outweigh the benefit to the community that is being sought by the restriction.
Interference which is unacceptably broad or which has imposed an excessive or unreasonable burden on individuals is likely to be found to be in breach of the Convention right in question. In cases involving a really serious breach, an application to stay the proceedings as an abuse of process could be successful.
The CPS seeks positively to uphold and protect the human rights of victims, witnesses and defendants in the criminal prosecution process. Prosecutors and those who support them in the casework function need to be aware of Convention rights, and vigilant in spotting potential breaches, so that the impact on the future conduct of the case can be considered at as early a stage as possible.
Failure to comply with the provisions of the HRA can have serious consequences for a prosecution. A breach of any of the rights guaranteed under the Convention, for example, the right to private life, or the freedom from inhuman or degrading treatment, could lead to the exclusion of significant evidence under section 78 of PACE if it results in unfairness in the proceedings.
All aspects of operational policing will, to some extent engage, article 8(1) and the right to respect for private life; The question for the court (and hence the reviewing prosecutor) will often be whether the interference is justified under article 8(2).
Interference can in principle be justified in the interests of national security or for the prevention of crime, provided that it is necessary and proportionate and that it is "in accordance with law". For the meaning of "in accordance with law" in this context, see Malone v UK, 7 E.H.R.R 14.
- Section 6 of the HRA makes it unlawful for any public authority (which includes the CPS) to act in a way which is incompatible with a Convention right. This means that a civil action might be brought against the CPS for any decision made by a prosecutor if it is claimed that it breaches somebody’s Convention rights.
In the rare event that an action taken in a case is incompatible with a Convention right, section 6(2) will provide some protection from liability if:
- Either they could not have acted differently because of the provisions of primary legislation; or
- They were acting to give effect to or enforce provisions in primary legislation which could not be read in a way that was compatible with Convention rights.
Section 7 of the HRA provides that only a person who is "a victim" can bring proceedings against a public authority under the HRA, or rely on a Convention right in any legal proceedings. A victim is someone who is directly affected by the act or omission in question. This may also include a person who is at risk of being directly affected by a measure, even if they have not, as yet, been so affected. A victim can include a company as well as an individual and may also include a relative of the victim where a complaint is made concerning their death.
The burden of proof to show that Convention rights have been infringed lies on the complainant but once established, the burden is then on the public authority to justify such infringement (Jersild v Demark (1995) 19 EHRR 1).
Claims under the HRA can be used to challenge the decisions of prosecutors or to seek compensatory awards for breaches of rights guaranteed under the Convention. A claim based on the HRA may be brought in conjunction with an action arising from an existing tort such as negligence; but where no pre-existing wrong has been committed an individual can claim a breach of section 6 alone. Remedies available where a breach of section 6 is found can include the award of damages if the court determines that non-pecuniary remedies would not afford "just satisfaction".
Civil proceedings against the CPS must be referred to CPS Proceeds of Crime.
A defendant (or civil claimant) who is dissatisfied with the decision of the domestic court may still petition the Strasbourg Court claiming a violation of their Convention rights. However, before that can be done a defendant must show that all domestic remedies have been exhausted.
Not all Convention rights have the same status. Broadly speaking Convention rights can be grouped into three categories. These are:
- absolute rights,
- limited rights and
- qualified rights.
Public authorities cannot depart from their obligations under an absolute right even in times of war or other national emergency. Nor can an absolute right be "balanced" against the needs of other individuals or the public interest, except in rare circumstances where two absolute rights are to be balanced against each other. Under this heading are rights guaranteed by Articles 2, 3, 4(1) and 7.
Limited rights (or "Special" rights)
These rights are similar to absolute rights in that they cannot be "balanced" against the rights of other individuals or the public interest. But governments are entitled under the Convention to derogate from their application in times of war or national emergency. The right to liberty (Article 5) and the right to a fair trial (Article 6) are examples of limited rights for these purposes. Under sections 14 and 16 of the HRA derogation can only be made by the Secretary of State for Justice. Derogations last for five years, unless renewed.
These are rights which can be restricted not only in times of war or emergency but also in order to protect the rights of another or the wider public interest. In general, qualified rights are structured so that the first part of the Article sets out the right, while the second part establishes the grounds on which a public authority can legitimately interfere with that right in order to protect the wider public interest. This category of rights includes those guaranteed by Articles 8, 9, 10 and 11.
Most Convention rights are negative in nature. They place a duty on the state and on public bodies to refrain from doing something which would interfere with the rights of individuals. However, some Articles in the Convention, primarily Article 2 (right to life) and Article 8 (right to respect for private and family life), place a positive duty on state authorities to take active steps to safeguard a person's Convention rights. In addition, the ECtHR has "read in" a series of positive obligations to other articles in order to ensure that fundamental rights in the Convention are respected.
Convention rights can be relied on in challenges to the admissibility of evidence in the Magistrates' Courts. Magistrates' Courts should follow binding domestic precedents, even when these appear to be inconsistent with subsequent European decisions, until the inconsistency is clarified by the High Court, the Court of Appeal or the Supreme Court: Lambeth LBC v Kay  UKHL 10 and Doherty v Birmingham City Council  UKHL 57.
Either party can challenge a Magistrates' Court ruling on an alleged Convention violation by an appeal to the Divisional Court by way of case stated or judicial review.
During trial, Convention issues can be raised using the voir dire procedure. Pre-trial hearings are also used for this purpose. Such hearings can provide an appropriate mechanism for issues arising out of the Convention to be canvassed in advance of the trial itself and for the judge to make a binding ruling (section 40 Criminal Procedure and Investigations Act 1996).
Although the CPIA contains no right of appeal against such a ruling, appeal may lie under section 58 of the Criminal Justice Act if the effect of the ruling is "terminating". For example, if the ruling is so detrimental to the prosecution case that in the absence of a right of appeal the prosecution would be forced to offer no further evidence. For further detail, see the chapter on Prosecution Rights of Appeal elsewhere in Legal Guidance.
The Crown Court is required to follow binding domestic precedence in the interpretation of Convention rights, as explained in Lambeth LBC v Kay  UKHL 10.
When reviewing a case the prosecutor must consider:
- whether the legislation is compatible with the Convention. (NB: Legislation passed since 1998 carries a declaration of compatibility by a relevant Minister, but this may not prevent challenges. Note that neither the Magistrates' Courts nor the Crown Court has any power to declare legislation incompatible with the Convention. Even when such a declaration is made by a Higher Court, the particular statute remains enforceable until Parliament changes it);
- which Convention rights might be engaged, including those of victims and witnesses as well as defendants. For example, whether requiring a witness to give evidence involves such risks to their safety as to breach their rights under Article 2 (see R (on the application of D) v Central Criminal Court  EWHC 1212 (Admin)); or whether a decision not to prosecute might, in exceptional circumstances, amount to a denial of a victim's rights not to be subjected to inhuman or degrading treatment: R (on the application of B) v DPP  EWHC 106 (Admin);
- whether the right is absolute, limited or qualified;
- if a qualified right is engaged, whether any interference with it falls within any of the specified exceptions and is prescribed by law and proportionate;
- whether there is domestic or Convention case law that may be relevant to the rights engaged;
The Code test must be applied in the light of the above considerations.
In Connolly v DPP  EWHC 237 (Admin),  2 Cr. App. R. 5, which involved a prosecution under the Malicious Communications Act 1988 for sending pictures of aborted foetuses to staff who worked in chemists shops, the High Court gave guidance on the questions the courts should ask when determining whether a prosecution had interfered with a Convention to the extent that it should be stayed:
- Is the defendant guilty of an offence without regard to the Convention?
- Does that offence interfere with the defendant's exercise of a Convention right e.g. freedom of expression?
- Is that interference prescribed by law (i.e. is there statutory authority for the prosecution)?
- Is that interference in furtherance of one of the legitimate aims of the Convention (see Article 10(2) or 11(2) as appropriate)?
- Is that interference necessary in a democratic society?
- Is it proportionate to the legitimate aim that is being furthered?
Prosecutors should use a similar approach should be adopted when reviewing any case which has the potential to raise issues of interference with qualified rights.
A flow diagram is attached at Annex B of this guidance to set out this process.
Prosecutors should record their consideration of Convention rights in any review of a case given that section 6 of the HRA makes it unlawful for the CPS to act in any way which is incompatible with a Convention right.
The full text of the Human Rights Act 1998 may be accessed at the following link: The Human Rights Act 1998
Information on the European Court of Human Rights European Court can be found at: http://www.echr.coe.int
Reports of leading European Court of Human Rights judgements are available at: http://www.bailii.org/eu/cases/ECHR/
The following short guide on human rights for those working in the public sector is available by following the hyperlinks:
You may also find it useful to consult the Ministry of Justice Human Rights web site more generally at: http://www.justice.gov.uk/guidance/humanrights.htm.
(Article 1 is introductory and is not incorporated into the Human Rights Act.)
Article 2: Right to life
A person has the right to have their life protected by law. There are only certain very limited circumstances where it is acceptable for the state to take away someone's life, e.g. if a police officer acts justifiably in self-defence.
Article 3: Prohibition of torture
A person has the absolute right not to be tortured or subjected to treatment or punishment which is inhuman or degrading.
Article 4: Prohibition of slavery and forced labour
A person has the absolute right not to be treated as a slave or to be required to perform forced or compulsory labour.
Article 5: Right to liberty and security
A person has the right not to be deprived of their liberty - 'arrested or detained' - except in limited cases specified in the article (e.g. where they are suspected or convicted of committing a crime) and provided there is a proper legal basis in UK law.
Article 6: Right to a fair trial
A person has the right to a fair and public hearing within a reasonable period of time. This applies both to criminal charges against them and to cases concerning their civil rights and obligations.
As well as criminal trials, Article 6 applies to prison disciplinary proceedings, proceedings that could lead to imprisonment for non-payment of the community charge, or for refusal to be bound over to keep the peace, certain tax evasion proceedings, and proceedings for imposition of a penalty under section 32 of the Immigration and Asylum Act 1999.
Article 6 does not apply to proceedings for (stand-alone) anti-social behaviour orders, sex offender orders, football banning orders, civil recovery orders, proceedings under Schedule 3 of the Customs and Excise Management Act 1979 for forfeiture of goods, and proceedings under section 6(1) of the Company Directors Disqualification Act 1986, amongst others. Proceedings under section 4 or 4A of the Criminal Procedure (Insanity) Act 1964, similarly, do not involve the determination of a criminal charge for the purposes of Article 6, R. v H.  1WLR 411.
Article 6 may (but does not necessarily) apply to preliminary hearings concerning trial arrangements and procedural matters: X v UK, 5 E.H.R.R 273.
The specific fair trial rights guaranteed under Article 6 are:
- The right to determination of the charge within a reasonable time by an independent and impartial tribunal established by law: Article 6(1);
- The right to a hearing in public is subject to the express restrictions set out in the second sentence of Article 6(1).
The House of Lords considered the issue of the accused's right to be present at their trial in the case of Jones  1 AC 1. It held that there was nothing in the ECtHR's case law to suggest that the trial of a criminal defendant held in absence, where they had been fully informed of the forthcoming trial and had chosen not to attend, was incompatible with Article 6. In that case, the House commended the principles outlined in the earlier decision of the Court of Appeal in Hayward  QB 862. Lord Bingham endorsed the Court of Appeal's guidelines with two reservations: (1) the seriousness of the offence should not be considered - the principles would be the same whether the offence was serious or minor; and (2) even if the accused absconded voluntarily, it would generally be desirable that they should be represented. The decision in Jones was affirmed by the ECtHR: Jones v UK (2003) 37 E.H.R.R. CD 269.
Section 11 Magistrates' Courts Act 1980, (as amended by section 54 Criminal Justice and Immigration Act 2008) makes provision for Magistrates to proceed to either trial or sentence in the absence of an accused, but introduces safeguards to ensure that the power is exercised in a way that would not be incompatible with Article 6.
- The right to be presumed innocent until proven guilty according to law: Article 6(2);
Article 6(2) guarantees the presumption of innocence in criminal proceedings. It applies only to a person who is subject to a charge, and does not apply at the investigation stage. Article 6(2) does not invariably prohibit rules which transfer an evidential burden to the accused, provided the overall burden of proving guilt remains with the prosecution. Neither does Article 6(2) necessarily prohibit the operation of presumptions of law or fact, provided that overall the trial is fair.
However, any rule which shifts the burden of proof, or which applies a presumption operating against the accused must be confined within reasonable limits. For instance, provisions under the Official Secrets Act 1989 were held to be incompatible with Article 6(2) if taken to reverse the burden of proof, so they had to be interpreted as imposing only an evidential burden on the defendant: R v Keogh  1 WLR 1500.
- The right to be informed promptly of the nature and cause of the accusation: Article 6(3)(a);
- The right to have adequate time and facilities to prepare a defence: Article 6(3)(b);
- The right to defend oneself, or to have legal representation of one's choice, and the right to have it provided free if you have insufficient means to pay: Article 6(3)(c);
- The right to cross examine prosecution witnesses; and the right to call witnesses for the defence: Article 6(3)(d);
- The right to have the free assistance of an interpreter if necessary; Article 6(3)(e).
Article 7: No punishment without law
A person normally has the right not to be found guilty of an offence arising out of actions which at the time they committed them were not criminal. They are also protected against later increases in the maximum possible sentence for an offence.
Apart from the right to hold particular beliefs, the rights in Articles 8 to 11 (below) may be limited where that is necessary to achieve an important objective. The precise objectives for which limitations are permitted are set out in each article, but they include things like protecting public health or safety, preventing crime and protecting the rights of others.
Article 8: Right to respect for private and family life
A person has the right to respect for their private and family life, their home and their correspondence. This right can be restricted only in specified circumstances.
Article 9: Freedom of thought, conscience and religion
A person is free to hold a broad range of views, beliefs and thoughts, and to follow a religious faith. The right to manifest those beliefs may be limited only in specified circumstances.
Article 10: Freedom of expression
A person has the right to hold opinions and express their views on their own or in a group. This applies even if those views are unpopular or disturbing. This right can be restricted only in specified circumstances.
Article 11: Freedom of assembly and association
A person has the right to assemble with other people in a peaceful way. They also have the right to associate with other people, which include the right to form a trade union. These rights may be restricted only in specified circumstances.
Article 12: Right to marry
Men and women have the right to marry and start a family. National law will still govern how and at what age this can take place.
(Article 13 is not included in the Human Rights Act.)
Article 14: Prohibition of discrimination
In the application of the Convention rights, a person has the right not to be treated differently because of their race, religion, sex, political views or any other personal status, unless this can be justified objectively. Everyone must have equal access to Convention rights, whatever their status.
Article 1 of Protocol 1: Protection of property
(A 'protocol' is a later addition to the Convention.)
A person has the right to the peaceful enjoyment of their possessions. Public authorities cannot usually interfere with things people own or the way they use them, except in specified limited circumstances.
Article 2 of Protocol 1: Right to education
A person has the right not to be denied access to the educational system.
Article 3 of Protocol 1: Right to free elections
Elections for members of the legislative body (e.g. Parliament) must be free and fair and take place by secret ballot. Some qualifications may be imposed on who is eligible to vote (e.g. a minimum age).
Article 1 of Protocol 13: Abolition of the death penalty
These provisions abolish the death penalty.
Download a PDF check list here: Reviewing a Case Involving a Human Rights Issue
Question 1. Does the evidence pass the Evidential Stage of the Code Test?
Answer - No. Then no prosecution.
Answer - Yes. Then go to question 2.
Question 2. Does the case pass the Public Interest stage of the Code Test?
Answer - No. Then no prosecution.
Answer - Yes. Then go to question 3.
Question 3. Will prosecution engage anyone's Convention Rights?
Answer - No. There is no need to continue with this check list.
Answer - Yes. Then go to question 4.
Question 4. Will prosecution result in the restriction of a Convention Right?
Answer - No. There is no need to continue with this check list.
Answer - Yes. Then go to question 5.
Question 5. Is the Right an absolute Right?
Answer - No. Then go to question 6.
Answer - Yes. The prosecution is NOT likely to be Human Rights compliant.
Question 6. Is the Right a qualified Right?
Answer - No. The prosecution is NOT likely to be Human Rights compliant.
Answer - Yes. Then go to question 7.
Question 7. If the prosecution goes ahead will the Right be limited or restricted only to extent set out in the relevant article of the ECHR? Ask:
- Is there a legal basis for the restriction? AND
- Does the restriction have a legitimate aim? AND
- Is the restriction necessary in a democratic society? AND
- Is the restriction proportionate to the legitimate aim to be achieved?
Answer - No. The prosecution is NOT likely to be Human Rights compliant.
Answer - Yes. The prosecution IS likely to be Human Rights compliant.