Human Rights in Criminal Justice

There are a number of laws in place to ensure that suspects, defendants and witnesses have certain rights and protections.

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The Rights of Suspects

Suspects have rights, and police powers are restricted by those rights. Suspect rights are in place to prevent police from exercising their authority on a citizen without reasonable cause for suspicion.

However, these rights can become complex, particularly with the introduction of recent anti-terror laws. There are some circumstances under which police have more power to exercise against a potential suspect.

Striking a balance between police power and the rights of a suspect is an important, yet delicate matter – give the police too much power and the rights of the people will suffer, but give suspects too much leeway and you neuter the police’s ability to catch genuine criminals and keep everyone else safe.

Article 5 of the Convention of Human Rights gives potential suspects protection against victimisation, bestowing “the right to liberty and the security of person”. In addition, the Police and Criminal Evidence Act 1984 (PACE) governs much of what police can do, and what rights suspects have.

Powers of arrest

In many circumstances, police will need an arrest warrant to carry out an arrest – however, depending on the type of crime that the individual is suspected of committing, police may be able to circumvent this stage of the arresting process.

An arrest without a warrant is known in some quarters as a “summary arrest”. A summary arrest can generally be carried out for more serious crimes that can carry a fixed penalty or maximum penalty of more than five years in jail (such as joyriding, or shoplifting).

PACE defines a further category of more grievous crimes, such as rape, murder, or other crimes which could cause severe harm to an individual or the security of the state, or offences that lead to significant financial loss or gain to an individual or party.

For these crimes, police have greater detention powers than they would with suspects for less serious crimes, including the power to detain without charge for up to 96 hours and prevention of access to a solicitor.

Powers of detention

Under normal circumstances, police can only detain a suspect without charge for 24 hours. Holding a suspect without charge can only be done while the custody officer at the station determines whether or not there is enough evidence to charge them – if sufficient evidence cannot be found, or it is clear that sufficient evidence will not be found during the period of detention, the suspect must be released. The police must inform the suspect of the grounds on which they are being detained, as well as recording the grounds in writing on the custody record.

In certain circumstances, the police may be able to justify detaining a suspect beyond the initial 24 hour detention period. The normal detention period can be extended up to as much as 96 hours – by which point the police will have no choice but to release the suspect if they have no evidence. The only exception is if the police detain a suspect under the Terrorism Act 2000, which made it possible for the police to detain a suspect for up to 7 days without charge.

Police powers of entry give police the power to enter premises and search them under the Police and Criminal Evidence Act (PACE) 1984 as well as numerous other significant police statutes. They also have the power to seize whatever evidence or illegal material they conducted the search to find.

However, with many police powers there are limitations to prevent them from being abused and ensure that the privacy and freedom of those being searched is not compromised.

If these limitations are not observed, and police officers overstep their power, anything that is found or gained from searching those premises may by ruled inadmissible as evidence in court later on.

Powers of entry

A police officer is in their power to simply request that they search your premises – if you give your consent in writing they can do so. However, before you give your consent, it must be made clear what the officers are looking for, and that you are under no obligation to consent to the search.

Note that under the Police Criminal Evidence Act, the term “premises” is given a wider meaning than you might expect. A tent that you have erected in public could count as premises under PACE guidelines.

If you do not consent to a search of your property, the police can seek a magistrate’s warrant.

Magistrate’s search warrant

Obtaining a search warrant from a magistrate can be a complex business, but there are numerous acts of parliament under which they can obtained – for example, if police have reason to suspect that there are drugs being stored on the premises, they can apply for a search warrant under the Misuse of Drugs Act 1971.

A magistrate will not grant a search warrant lightly. They will not issue a warrant unless they are convinced that the material seized would be of significant value to an investigation or trial, and that the use of a search warrant is the best possible method left to obtain the material. For example, if the owner of the premises has refused entry, or it is not unreasonable to think that they will refuse entry, a search warrant could be justified.

A search warrant does give the police power to enter the premises by force if necessary – if the owner of the premises is away or refuses to let the police in, for example. However, a search warrant does not give the police absolute power to enter a property whenever they want.

The officer still has to attempt to inform the owner of the premises of the reason for their search, and what they are looking for. Also, the search should be carried out at a reasonable time of the day, unless doing so would reduce the effectiveness of the search.

Entering without a warrant

Sometimes situations will arise in which an officer needs to gain access to a property or premises quickly, and as such, there are circumstances under which an officer can gain entry without being in possession of a warrant.

Police can do this if they need to stop a crime in progress, or prevent a crime that they suspect is about to happen (such as a kidnapping or a breach of the peace). Entry without a warrant could also be justified if the police are attempting to enforce an arrest warrant, or apprehend an escaped criminal. Police can only exercise these powers if they have reasonable cause to believe that the individual they are interested in is on the premises, or that serious harm or damage is imminent. An officer cannot charge into a house that they are not sure houses the suspect, unless they believe that the consequences of not acting could be very grave.

Powers of seizure of property

Once police gain the authority to search premises, whether by warrant, permission from the owner or otherwise, they can lawfully seize what they were looking for, as well as anything else that they have reasonable cause to think needs seizing. There are three grounds under which they can make this call:

  • The item in question could be evidence for an offence – not necessarily the offence that the police were originally there to investigate. If police were searching a house for a murder weapon and they found class A drugs on the premises, they could seize them even though they pertain to different charges.
  • The item was obtained from the offence, or as the result of the offence – for example, a stolen item.
  • Police need the item to remain intact, and they feel that the item needs to be seized to prevent its alteration, destruction or disposal.

Once charges have been filed

Once the suspect has been charged, the police are legally obliged to release him or her, with the option of imposing bail conditions. However, there are a number of conditions that can enable the police to keep the suspect in their cells.

  • The suspect must be detained for their own protection – release could see them in harm’s way from another criminal element.
  • The name or address of the suspect is unknown to the police, or they have reason to believe that the name or address given is inaccurate.
  • The suspect is a juvenile (under the age of 18, or 16 in Scotland) and it is judged to be in their best interests to keep them in.
  • The police believe that the suspect will not attend court to answer bail, will commit another offence, or will interfere with justice and other investigations.
  • The police feel the necessity to carry out a drug test. This test can be administered if the police have reasons to suspect the usage of specific class A drugs by the suspect.

The Rights of Defendants

One of the most important ideals of our justice system is the idea that anyone is “innocent until proven guilty”. No one should be punished for a crime until it is proven in a court of law that they were responsible, regardless of the severity of the crime and the opinions of those following the case.

Article 6 of the European Convention of Human Rights (ECHR) gives the right to a fair trial to everyone prosecuted under UK law. The various rights provided under this article should ensure that any defendant faces a fair outcome during a prosecution case.

Right to a Fair Trial

Some of the minimum rights afforded to defendants during trial are more obvious than others. The presumption of innocence, for example, is to be expected. This means that the “Burden of Proof” is on the prosecution, who must prove that the defendant is guilty.

The defendant has the right to ensure that there is no manner of interference from the outside, by the public or by the media.

As in other human rights matters that rely on privacy, the rights afforded to a defendant must be balanced against the media’s right to freedom of speech.

If there is concern that media reporting could affect the outcome of the trial and render it unfair in some way, the media’s involvement in reporting the case can be limited by the court.

For example, a court order can be issued which prevents the media from mentioning certain aspects of the defendant’s life and history, if it is felt that widespread knowledge of these facts would colour the impartiality of the jurors.

Above all, the goal of Article 6 is to ensure that justice comes first.

Allowing a Defendant to Defend

There are a number of other rights given by Article 6 of the ECHR, mainly concerned with making sure that a defendant can adequately defend him or herself, or seek the legal counsel to ensure a competent defence.

For example, every defendant should be given sufficient time to prepare their defence, and is entitled to the guidance of legal counsel in the form of a solicitor. This means that even if the defendant cannot afford to pay for his or her own legal representation, they could be provided with representation by the court.

The defendant also has the right to fully understand the charges brought against him or her. This requires the defendant to be fully informed of the crime that he or she is accused of and why he or she has been charged for it, in a manner that he or she can easily understand.

The right to a fair trial also makes allowances for defendants who may not be fluent in English. If the defendant needs assistance to understand the language being used, an interpreter will be provided, at no cost to the defendant.

Sentencing

The defendant’s rights also extend to sentencing. If a defendant is found guilty on any counts, the sentence that he or she receives will take into account the defendant’s history and the circumstances of the crimes, not just the crime itself.

Depending on these other factors, this could work in the defendant’s favour – after all, a defendant’s law-abiding history will make the judge more likely to show mercy in sentencing. By the same token, a defendant convicted of grievous bodily harm is more likely to receive a short sentence if he or she was acting in self defence, compared to a deliberate aggressor.

The Right of Appeal

If the defendant feels that their sentence or conviction was unjust, they have the option of appealing at the magistrate’s court. The defendant has 21 days from the giving of the sentence to appeal against their sentence and conviction.

Do note, however, that a defendant can only appeal against conviction if they pleaded “not guilty”. A defendant that has already pleaded guilty can only appeal against their sentence.

The defendant is entitled to legal representation once again. The appeal will be similar to the original trial, as the defendant’s legal counsel will present their evidence again to the magistrates’ court. If the appeal is just against the sentence, the evidence doesn’t need to be re-presented.

Once the rehearing is completely, the court (comprised of a judge and two magistrates) will make their decision as to whether the conviction should be overturned, or if the sentence should be changed.

Be careful when deciding to appeal a sentence – if the appeal fails, you may find yourself responsible for paying any extra court costs, including the cost of the prosecution. If the magistrates’ court sees fit, they may even increase the sentence.

Rights of Prisoners

You can learn more about this in our Rights of Prisoners section.

Rights of Witnesses

Giving evidence for a crime that you have witnessed can put you in a very difficult and worrying position. You may fear reprisals from those connected to the perpetrator of the crime, and worry about the impact that your testimony will have on your own life, as well as the lives of your family.

However, witnesses are guaranteed a number of rights under human rights law, and these rights are in place to make sure that no witness should worry about coming forward.

Witness statement

When you first come forward as a witness, you may be asked by police to submit a witness statement, either in the form of a written statement or a video recording. If you give a video statement, you will most likely be required to sign a written account of what you said on video.

If police are still searching for the suspect, they may show you photographs of known criminals, to see if they already have records of the perpetrator.

If you are called to trial as a witness

If you are called to trial as a witness, you do have some freedom as to when and how it would be best for you to attend. You can’t actually avoid coming to the trial unless you have pre-existing mitigating factors to consider, but you can inform the police if there are particular days during the course of the trial that would make it difficult for you to attend.

If there are real mitigating factors that would prevent your attendance – for example, if you are not fit to leave the house – the defence or prosecution council can apply to have your written witness statement put before the court in lieu of your appearance.

If you wish to be kept separate from other people involved in the case, such as other witnesses, you can ask to wait in a different room before the trial begins. You are also entitled to request a seat in court for a friend or relative to accompany you.

Freedom from witness intimidation

Witness intimidation can have a significant effect on the course of a trial – however, any harm or intimidation visited upon a witness before, during or after trial is illegal. If you have been called as a witness and you do fear intimidation, the prosecution can apply to have your written statement serve as your testimony, preventing your need to appear in court before anyone who could intimidate you.

If it is found that intimidation was used by the defendant, or a party on behalf of the defendant, and the court accepts that this intimidation may have genuinely affected the outcome of the case, the court has the power to order a re-trial.

Intimidation isn’t always designed to affect the course of the trial – a defendant could attempt to intimidate a witness after a trial has ended, contacting them or following them once they leave prison, and sometimes even contacting them from inside.

The maximum penalty for witness intimidation is 5 years in jail, depending on the severity of the intimidation and the effect that it had on the outcome of a legal case.

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