Mike Kennedy's address

Mike Kennedy Chief of Operations Director of Public Prosecutions address to SIHRG

“Human Rights and the Prosecution of Crime”,

Solicitors International Human Rights Group

23^rd September 2009

Introduction

• Thank you for inviting Keir Starmer QC, the DPP to speak at this evening’s event. I offer you his sincere apologies. He is unable to be here this evening as he has been very heavily engaged all day with the launch of the DDP Guidelines on Assisted Suicide. I am very pleased to deliver this speech on his behalf. I hope you will find this address on: ‘Human Rights and the Prosecution of Crime’ both interesting and informative.

• In order to understand the relationship between human rights and the prosecution of crime in a modern prosecution service, there are three main themes I want to explore this evening.

• First, I will briefly touch upon the introduction of the Human Rights Act 1998 into UK law.

• Secondly, I will describe how human rights principles apply to victims and witnesses at various stages of the criminal justice process.

• And finally, I want to highlight the importance of these principles to a modern prosecution service such as the CPS.

The Introduction of the Human Rights Act into UK Law

• Our criminal law framework is underpinned by the European Convention on Human Rights and Fundamental Freedoms drafted shortly after the Second World War by the Council of Europe. It is interesting to note that all the major European countries from the Russian Federation in the east to Ireland and Portugal in the west are now members of the Council of Europe - save one. Which one? The United Kingdom had a major role in the design and drafting of the Convention which was ratified in 1951 and came into force in September 1953.

• The principles underlying ECHR rights began to have an increasing influence on how British courts viewed issues of individual rights and freedoms. However, for the first four decades of its existence, those who wished to challenge alleged breaches of their ECHR rights had to bring an action at the European Court of Human Rights sitting in Strasbourg, not in our domestic courts. This was a costly and extremely time consuming process.

• Eventually, Government decided to rectify this by making the most important ECHR rights directly enforceable in British courts. It passed the Human Rights Act in 1998. The Human Rights Act gives further effect in domestic law to the rights and freedoms guaranteed under the ECHR. It incorporates the most important of the rights and freedoms guaranteed by the Convention into domestic law, and allows individuals to enforce their Convention rights in British courts rather than having to go to the European Court in Strasbourg.

• Most importantly the Human Rights Act also requires all existing and future legislation, so far as possible, to be read and to be given effect to in a way that is compatible with Convention rights.

• Many of these rights have a direct bearing on our criminal justice system. Most significant, perhaps, is Article 6 which guarantees the right to a fair trial by setting out a set of minimum standards for the prosecution process. Article 5 guarantees a right to liberty, subject to law, while Article 2 safeguards the right to life and Article 3 prohibits torture and degrading treatment. These and the other fundamental rights enshrined in the Human Rights Act apply throughout the criminal justice process – from the investigation of crime, through to the trial process and ultimately to sentencing and beyond. Importantly, these principles apply to all the key players in the criminal justice system, including victims and witnesses and it is to them that I want to turn now.

The Application of Human Rights Principles to Victims and Witnesses throughout the Criminal Justice Process

• First, the Human Rights Act recognises a positive obligation on the State to have effective mechanisms in place to protect the lives of those within its jurisdiction from the criminal acts of others. Cases such as Osman v United Kingdom (1998) have demonstrated this. In Osman an obsessive teacher injured a 15 year-old pupil and killed his father. The applicants complained that there had been a failure to protect the lives of both individuals and to protect the family from harassment, in breach of,inter alia, Article 2 of the European Convention on Human Rights (ECHR). It was held that the police have a positive duty to take reasonable steps to protect potential victims from a real and immediate risk to their lives from criminal activity. If they do not, they may well be liable to claims founded on article 2 of the ECHR for the resultant harm caused.
• Chief Constable of The Hertfordshire Police (Original Appellant and Cross-Respondent) v Van Colle; Smith v Chief Constable of Sussex Police [2008] UKHL 50

• Facts: Both cases in these conjoined appeals involved two victims (G and S). G had been murdered just days before he was due to give evidence for the prosecution at the trial of a defendant on charges of theft. The defendant was convicted of G’s murder. G’s parents alleged that G's murder had occurred after a number of threats and incidents of witness intimidation against G and others of which the investigating police officer should have been aware and which should have led him to take steps to protect G against the risk of serious harm.

• In other case of S he had been seriously injured by his former partner when the latter attacked him with a claw hammer. According to S, he had repeatedly informed the police of his former partner’s threats to kill him and the police had ample evidence and information to make an arrest. In bringing proceedings against the respective chief constables, G's parents relied on Article 2 of the ECHR, while S's claim was brought under the common law.

• Decision: The House of Lords reaffirmed and applied the test set out by the European Court of Human Rights in Osman, namely that there will be a breach of the positive obligation under Article 2 of ECHR if the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. However, in Smith, the House held (Lord Bingham dissenting) that the police do not owe a common law duty of care to protect individuals against harm caused by criminals. The Court reaffirmed the “core principle” laid down in Hill v Chief Constable of West Yorkshire[1989] AC 53 that such a duty of care would cause “defensive policing” and would divert police resources away from combating crime in order to deal with litigation.

• Article 2 rights also extend to those in custody. For example, in the 2002 case of Edwards v UK, a young man, Christopher Edwards, was arrested following incidents in the street where he had been approaching women and making inappropriate suggestions. The police and the prosecutor, having received representations from Edwards’ family, believed he was suffering from mental health problems.

• However, due to what appeared to be a failure in communications compounded by a series of poor judgements, Edwards was remanded to a local prison rather than being sent for assessment to a mental hospital which, it appears, had been the intention of the magistrates’ court that dealt with his initial remand. While in custody, Christopher Edwards was beaten and kicked to death by his cell-mate who was suffering from paranoid schizophrenia. Christopher Edward’s parents used Article 2 of the European Convention to sue the Government. Eventually, the European Court found a violation of article 2 on the basis of inadequate screening procedures and the failure of the relevant authorities to pass on information about the prisoner who had murdered their son.

• Two years later, in 2004, in R (Amin) v Secretary of State for the Home Department, the House of Lords followed the reasoning in the Edwards case when considering the failure of the authorities to prevent the racist murder of Zahid Murbarek, a 19 year old prisoner serving a sentence in Feltham Young Offenders Institution. Lord Bingham referred to the obligations in article 2 and said that the State owed a particular duty to those involuntarily in its custody. “Such persons” he said, “must be protected against abuse at the hands of State agents. They must be protected from self-harm…Reasonable care must be taken to safeguard their lives and persons against the risk of avoidable harm.”

• The Human Rights Act has also established the rights of victims and witnesses during the trial process, particularly the right not to have their lives and those of their families put at risk by their participation in the prosecution process.

• The English courts have now followed this lead in holding that where the issue is raised, a court, as a public authority for the purposes of the Human Rights Act, is under an obligation to enquire into the risk facing a witness, and to consider what steps are available to protect them: R (A) v Lord Saville of Newdigate(2002). The issue in that case was whether soldiers or former soldiers should be called to give evidence to the “Bloody Sunday” Inquiry in Londonderry, where their lives were at risk from terrorist violence. The appellants argued that doing so would be in breach of, inter alia, Article 2 of the ECHR.

• Decision: The Court of Appeal held that the applicants’ evidence should not be taken in Londonderry. In the particular circumstances of that case, the Court adopted broader principles of “common sense and common humanity” in considering the threshold of risk that had to be passed. The subjective fears of the soldiers, the extent to which they were objectively justified and the extent to which they could be alleviated if they gave their evidence elsewhere was to be balanced against the adverse consequences to the Inquiry of the change of venue, applying common sense and common humanity. The answers to such questions, as was recognised, would always turn on “matters of fact and degree”.

• Where criminal proceedings could cause a risk to the life of a witness or a defendant, for example, by disclosing their status as an informant, the prosecution is under an obligation to carry out a thorough examination of the risk before continuing with the case: R (D) v. Central Criminal Court. (2004). In that case a HM Customs Prosecution of an informer for drugs dealing was ordered to disclose his defence statement – which said he was acting as an informer - to co-defendants and so would put his life in danger. The prosecutor’s position was that he was willingly involved in drugs deal and was trying to use his informer status to escape prosecution. The court held that the prosecutor had turned his mind to the risk and had been satisfied that the NCIS and the Prison Service could take steps to avoid it. And the Divisional court dismissed the request for a judicial review of the decision to prosecute.

• And finally, in Re Officer L (Respondent) (Northern Ireland) (2007), the House of Lords, in recognising that these considerations apply to police officer witnesses too, laid down guidelines in relation to the test to be applied when considering whether to grant anonymity to potential witnesses where their right to life is at stake.
• Facts: The issue in this case was whether police officers giving evidence to the Robert Hamill Inquiry in Northern Ireland were entitled to anonymity in order to protect them from an increased risk of paramilitary attack. Before their Lordships, the Inquiry appealed against the decision of the Court of Appeal that the officers were entitled to anonymity. The respondent Police Officers submitted that (1) to compel them to give evidence without anonymity would constitute a breach of Article 2 of the ECHR and (2) it would be a breach of the common law duty of fairness to the witnesses.

• Decision: The House of Lords allowed the Inquiry’s appeal. It had not been necessary to grant the officers anonymity. The Court held that the correct test, for both common law and Article 2 purposes, was whether the risk of injury or death to the officers would be materially increased if evidence was to be given without anonymity. Article 2 imposed on contracting States a positive obligation to take steps towards the prevention of loss of life at the hands of others other than the State. That positive obligation arose when the risk to life was “real and immediate”. For Article 2 purposes, this depended solely on the material existence of the risk. For common law purposes, the question might first be assessed subjectively, in terms of the risk felt by the officers themselves, and then objectively.

• Of course, Parliament has taken up the challenge now and passed the Criminal Evidence [Witness Anonymity] Act 2008 which gives statutory backing to the concept of witness anonymity. The pre-conditions are tight – as you would expect – but they are based on the emerging case law of the European Court to ensure that their application remains at all times compatible with the Human Rights Act.

• Further proof of the way in which the Human Rights of victims and witnesses are being protected can be found in the draft legislation currently before Parliament which will introduce – if passed – the concept of anonymity to potential witnesses during the investigative stage of a case. Designed to encourage reluctant and fearful witnesses to come forward in the first place, such an approach is a stark reminder of the potential danger that witnesses face in coming forward to support the police in investigating serious and violent crime.

• Challenges based on alleged breaches of Article 3, both before the European court and the domestic courts, have led directly to changes in the law to protect victims. No-one, I am sure, can condone the intimidatory and humiliating way in which rape victims used to be cross-examined by defendants in person as happened in the 1998 case of Milton Anthony Brown.

• B applied for leave to appeal against his conviction on two counts of rape, two counts of indecent assault and one count of false imprisonment involving two complainants, and against a sentence totalling 16 years’ imprisonment. The trial judge had expressed concern about the way in which Brown, who had chosen to represent himself, conducted his cross examination of the two complainants by asking them repetitious and irrelevant questions which were intended to intimidate and humiliate them.

• Decision: Dismissing the applications, the Court of Appeal held that defendants in criminal proceedings were permitted by law to represent themselves and to cross examine witnesses, other than children, and had to be treated as innocent until proved guilty. While it was vital that the judge did his utmost to ensure that such a defendant received a fair trial and was seen by the jury to have done so, the judge was also under a duty to protect the interests of other parties to the proceedings, particularly witnesses who were required to describe a traumatic incident which was alleged to have occurred. In those circumstances, it was preferable for the judge to meet with the defendant in the jury's absence to discuss the nature of the evidence the defendant wished to elicit from the complainant and from any defence witnesses. While the defendant should generally be permitted to cross examine the complainant, where the defendant refused to comply with the judge's instructions on moving on to the next point the judge could take over the questioning himself. If the defendant sought by any means to intimidate, dominate or humiliate the witness, a screen could be erected. In this case, the judge had been fair to B while doing everything he could to protect the complainants.

• As a result, sitting below the extreme of witness anonymity is a range of Special Measures designed to help witnesses give their best possible evidence. As practitioners in the courtroom, it is easy for us to forget how intimidating the process can be: we are used to it; very often, witnesses are not. It can be their first – and because of how we treat them, sometimes their last – experience of the criminal justice system. We need to make sure that, in appropriate cases, the system itself supports them giving evidence.

• The courts can now allow

1. video recorded evidence in chief
2. the use of screens in the court room so the witness cannot see, or be seen by, the defendant,
3. or witnesses can give evidence via TV live link,
4. evidence can be given in private,
5. wigs and gowns removed
6. More recently, the use of intermediaries in court proceedings ensures that witnesses who may experience communication difficulties understand the questions they are being asked and can clearly give their responses, without changing the substance of their evidence.
7. Aids to communication e.g. through a communicator or interpreter to enable vulnerable witnesses to give their best evidence.

• It is interesting to note that 28,000 special measures applications were granted in 2008. We can only guess what would have happened and how successful those cases might have been if considered for prosecution in 1998?

• Even after a case is finished, the Human Rights Act can protect the rights of victims. As an offender is released, victims and their families are entitled to ask for conditions to be placed on them even though this may interfere with their right to a private and family life. This principle was recognised in the 2001 case of R (on the application of Craven) v. Secretary of State for the Home Department and The Parole Board, where the family of a murder victim asked for the offender’s release on licence to be made subject to an exclusion zone designed to prevent the offender coming into accidental contact with them. The offender challenged the terms of the exclusion order on the basis that the restriction it placed on them represented a breach of their right to family and private life under article 8. The High Court held that this interference with article 8 was justified, having regard to the reasonable concerns and anxieties of the victim’s family. Delivering the judgment of the court, Mr Justice Stanley Burnton said:

“..in my judgment, it is right that the Secretary of State should give weight to the concerns and anxieties of the [deceased’s] family. Clearly, the family are themselves victims of [the defendant’s] crime. The Victim Liaison Report…shows that their concerns and anxieties are substantial. In dealing with human emotions, quantification is impossible. It is necessary to make a broad assessment of the competing interests involved and their respective values. In my judgment, the Secretary of State has not given the victim’s family’s understandable concerns and anxieties undue weight.”

• I think you will agree that these examples clearly illustrate the crucial role that human rights have throughout the criminal justice process and how comprehensive human rights protections have become. More importantly, they show that human rights principles apply to everyone involved in the criminal justice system. Far from being a ‘charter for criminals’, the Human Rights Act provides for robust and fair guarantees not only to defendants but also crucially to victims and witnesses.

• Critics of the Human Rights Act would do well to remember the fact that the rights of defendants, victims and witnesses are not derived from the common law, but from the ECHR . They have become part of our law largely thanks to the Human Rights Act without which the task of prosecutors would be more, not less, difficult.

• I now wan to turn to the modern public prosecution service that I now want to turn.

The Importance of these Principles to a Modern Prosecution Service

• The Code for Crown Prosecutors sets out how we reach our decisions regarding whether or not to prosecute. It requires prosecutors to act in accordance with the Human Rights Act. Later this year, the Director intends to support the Code with a revised Statement of Ethical Principles, which will bind all prosecutors.

• This Statement of Ethical Principles recognises the central role that prosecutors play in the criminal justice process. It places a duty to act at all times in accordance with the highest ethical standards and in the best interests of justice. In particular, it requires prosecutors to – and I quote – “decline to use evidence you reasonably believe to have been obtained through unlawful methods which constitute torture, inhuman or degrading treatment”. So human rights principles are now an inherent part of the way the CPS conducts its business.

It is essential that members of the public are prepared to come forward and to give evidence in court. The CPS recognises the importance of attending to the individual needs of victims and witnesses, particularly those who are most vulnerable in society. The CPS takes this very seriously and ensures it takes place by providing information, re-assurance and protection where appropriate.

• The CPS has done much in recent years to improve the treatment of victims and witnesses. We have undergone a huge cultural change and now assume a much greater role in supporting Victims and witnesses in the court process. We have established a network of over 150 Witness Care Units to help to guide witnesses through the process of giving evidence and, just as importantly, to give them information. We have learned, sometimes painfully, that often victims and witnesses are quite capable of accepting our decisions and the verdicts of the courts provided they are simply given information. Too often, they remain in the dark about what is going on and we recognise immediately that there is work still to be done here.

• One of the most sensitive decisions that prosecutors take is the decision not to prosecute. Our Direct Communication with Victims policy means that the CPS has to inform the victim of any decision to drop or alter the charge. This brings the prosecutor much closer to the victim, who in turn feels more closely engaged.

The Prosecutors’ Pledge & the Victim’s Code

• The Attorney General launched the Prosecutors’ Pledge on 21 October 2005. In the foreword to the Guidelines the Attorney General reminded all prosecution advocates that they are ‘required to adhere to the standards set out in the Code of Practice for Victims of Crime and the Prosecutors’’ Pledge, which places the needs of the victim at the heart of the criminal justice process’.

• The Pledge is the first document in the public domain that clearly outlines the level of service that victims can expect to receive from prosecutors. The commitments apply to all prosecuting authorities.

• The Code of Practice for Victims of Crime came into effect on 3 April 2006 and provides victims with a right to minimum standards of service for the first time from Criminal Justice Agencies. The Code of Practice provides a fast track service for the most vulnerable and intimidated victims and agencies have a commitment to communicate decisions in these cases within one working day.

• The Prosecutors’ Pledge complements the Victim’s Code. There is a direct correlation between five of the Pledge commitments and undertakings and responsibilities articulated in the Code for Prosecuting Authorities. However, the Pledge goes further. Whereas the Victim’s Code is only applicable to the CPS the Pledge is applicable to all prosecutors over which the Attorney exercises superintendence. The Pledge also stretches into areas such as charging and the acceptance of pleas which will be outside the remit of the Victim’s Code but are clearly important to victims.

• Two new public policy statements on how CPS deals with victims & witnesses with mental health issues and learning disabilities were launched 3 August 2009.Their purpose is to
  1. explain the role of the CPS;
  2. to give an overview of the CJS;
  3. to set out what victims and witnesses can expect from the CPS;
  4. to give information about particular issues which may affect victims and witnesses who have mental health issues and/or a learning disability.

• These important initiatives are very healthy developments. They reflect the increasing importance attached to the role of the victim in the criminal justice system. And importantly, they show that human rights principles are in no way a hindrance to the fight against crime. Quite the contrary. It is essential that we have a criminal justice system which treats all individuals fairly. That includes those suspected or convicted of crimes. But fair treatment for those accused of crimes must not limit our capacity to protect the public from harm and provide victims of crime with the support they need. That means striking the right balance between individual rights and those of the law-abiding majority and, in particular, of victims.

• If victims of crime feel they cannot secure justice through the courts, the damage to social cohesion will be immense. Strict adherence to the rule of law, fairness and due process are key to bringing offenders to justice. But securing fairness for both sides so that all witnesses, whether prosecution or defence, are empowered to give their best evidence is also an essential component of a criminal justice system which is fair and effective – and which works. The contrary view still held by some, that only defendants’ rights matter, is an absolute position from which we, as a society, must move on. Justice is not done by ignoring the interests of victims and witnesses, any more than it is served by riding roughshod over defendants’ rights.

Conclusions

• In conclusion, therefore, I believe that prosecutors play a crucial role in bringing offenders to justice and upholding the rights we know to be so important. It is in all our interests that we do so in a way that protects the rights of all those involved.

• Prosecutors have a great opportunity to develop a more effective response to serious crime and we can lead the way by promoting transparent, consistent and fair decision-making with human rights at its heart. I do not have any doubt that the Human Rights Act should continue to guide all those in the criminal justice system in their decision making: the police; the prosecutor; the courts; the prison service.

• I know that you are committed to Human Rights and I look forward to your continued support in building a modern criminal justice system in which they play a central role.