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Human rights law and the rights of accused persons (1)

One of the main aims of criminal law is the enforcement of laws relating to offending behaviour.

Persons who break the law are arrested, prosecuted and if found guilty, sentenced to a term of imprisonment or fine as the case may be.

The states or governments around the world are able through the criminal justice system to maintain law and order in their respective jurisdictions.

However, international human rights law has over the years developed certain principles and guidelines for the fair prosecution of accused persons so that their rights are not abused when they enter the realm of the criminal justice system.

There is always a tension between the state’s power and function in maintaining law and order and that of accused persons charged with a crime.

In maintaining a reasonable balance between these opposing ends, there have come to be established general principles of what a fair trial entails.

The right to a fair trial is pivotal in human rights protection as without these fundamental rights, all other rights available to the individual are at risk.

There are a plethora of rights that emanate from the right to a fair trial; presumption of innocence; the right to an independent and impartial court for trials; the right to counsel; the right to be adequately informed of the reasons of arrest and the provision of all materials on which charges are framed (disclosure) in order to mount a robust defence; right to a trial within a reasonable period; right to silence during police interrogations etc.

Thus the bundle of rights that come under fair trial principles are many and, as confirmed in the interpretation of Article 14 of the International Covenant on Civil and Political Rights (ICCPR) which is the source of the fair trial principles, the list is not exhaustive but new principles are developed on an incremental basis.

The gateway to a criminal prosecution undoubtedly begins on arrest so an examination of the rights available to arrested persons is a good starting point. In order for an arrest to take place the arresting officer must have a reasonable suspicion of the person having committed an offence.

The term ‘reasonable suspicion’ has not been extensively explored in our jurisprudence but, as was decided in Fox, Campbell and Hartley v United Kingdom by the European Court of Human Rights, the words ‘reasonable suspicion’ mean the existence of facts or information which would satisfy an objective observer that the person concerned had committed the offence.

The fact that the police officer held an honest suspicion is not enough and the test is an objective one as opposed to a subjective one.

Thus a police officer cannot ‘out of the blue’ arrest a person who is ordinarily going about his/her business.

The reasonable suspicion test is a formidable arsenal available to arrested persons, especially in the context of the practice where some ‘big men’ use the police to settle personal grudges they might have with other members of society.

We all have heard stories where people have been taken in custody and held at police stations over the weekend for debt recovery.

Reasonableness of an arrest will depend on all the circumstances and is strictly applied even in offences with national security implications.

So in Fox, Campbell and Hartley v the United Kingdom, where the defendants were arrested under Section 11 of the Northern Ireland (Emergency Provisions) Act, the European Court of Human Rights ruled that Section 11, which provides that a constable may arrest “any persons whom he suspects of being a terrorist”, violated Article 5(i)(c) of the European Convention on Human Rights.

Given that this provision in the Northern Ireland (Emergency Provisions) Act was not an objective one (it could be used if the constable had an honest suspicion of a person to be a terrorist) the Court demanded the reasons/facts upon which the arrest was made, in order to ascertain whether the test of reasonableness was met.

When the United Kingdom failed or was unwilling to provide that information on national security grounds, the Court went on to find a violation of the reasonable suspicion test stating that “the exigencies of dealing with terrorist crime cannot justify stretching the notion of “reasonableness” to the point where the essence of the safeguard in Article 5(i) (c) is impaired “.

The Northern Ireland (Emergency Provisions) Act was therefore deemed unlawful.

Hopefully our jurisprudence will develop to the extent that our courts will declare arrests which fail the reasonable test to be unlawful.

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