Recent debate in the media, largely fuelled by concern over illegal immigration and a desire to “stop the boats”, has put the spotlight on the impact of the ECHR on legal processes in the UK. Calls for the UK to leave the ECHR have gathered a head of steam as adherence to its precepts have been blamed for preventing the deportation of persons who have entered the UK by illegal means. But what would be the potential consequence of leaving the ECHR on the UK’s criminal justice system?
In considering this issue it is important to reflect briefly on the historical context for the introduction of the ECHR. At the conclusion of World War II, the United Nations was formed primarily to prevent another supra-national conflict. One of its founding conventions was the Universal Declaration of Human Rights 1948 (UDHR). This document enshrined the basic rights and freedoms of all citizens of the world. In 1950, the Council of Europe adopted the European Convention of Human Rights (ECHR) which incorporated many of the principles set out in the UDHR. The UK was one of the principal authors of the ECHR. Subsequently all 46 members of the Council of Europe adopted the ECHR. In 2000, the UK incorporated it into its domestic law by passing the Human Rights Act.
Subsequently, the decisions of the European Court of Justice (ECJ) have been accepted by the member states as binding on their domestic courts. Amongst the rights to be protected under the ECHR are the right to life, the prohibition of torture, freedom of expression and the right to a fair trial. Arguably nowhere has this impact been more pronounced than in the criminal justice system.
Examples of the Impact of the ECHR on the UK Criminal Process
1. Compulsory Interviews
In the case of Saunders v United Kingdom (1996), the ECJ was asked to rule on the compatibility of the power of Inspectors from the Department of Trade to compel a suspect to answer questions with Article 6 of the ECHR (Right to a Fair Trial). Successive domestic courts had ruled that the statutory powers to compel suspects to answer questions were compatible with Article 6 and consequently, the answers given were admissible in a criminal trial. However, the ECJ did not agree and ruled that the use of evidence obtained by such means was incompatible.
Concerned about the impact that this would have on investigations into complex fraud by the Serious Fraud Office (SFO), the Government amended the Criminal Justice Act 1987 (CJA) making specific provision for the exclusion of any answers given in a “section 2” interview in any consequent criminal trial. This facilitated the continued use of an invaluable investigative tool without offending Article 6. The practical consequence is that suspects are compelled to assist investigations into serious and complex fraud under the threat of prosecution for non-compliance. However, answers that they give in a compulsory interview cannot be relied upon in court.
What would be the impact of leaving the ECHR on this legislation? Arguably, there would be nothing to stop the Government from repealing the CJA and re-instating the position whereby answers given under compulsion would be admissible in any subsequent trial. In theory, the provisions of ss 76 and 78 of the Police and Criminal Evidence Act (PACE) would still be available to test the admissibility of such evidence. However, previous case law would suggest that the statutory provisions will hold sway. Suspects in serious fraud investigations would therefore be compelled to answer questions and if they failed to do so, they could presumably be prosecuted for their non-compliance. Currently failure to comply with a s2 notice carries up to 6 months imprisonment. Those representing suspects in such circumstances would be presented with an invidious choice of advising clients to answer questions and thereafter taking one’s chances of excluding such evidence at trial, or alternatively refusing to answer questions at the risk of facing a prison sentence. Ironically “strengthening” of the SFO’s powers in such a fashion could result in less co-operation from suspects than is currently the case. Common sense would dictate that preserving the status quo would be the more prudent course.
2. Use of Covert Surveillance
In the case of Khan v United Kingdom (2000), the ECJ found that the absence of a statutory code governing the obtaining and use of evidence gained by covert surveillance was a breach of Article 8 (the Right to Privacy) because it had not been obtained “in accordance with the law” notwithstanding the existence of Home Office Guidelines. It is of note that the Police Act 1997, which did create a statutory framework for the use of covert surveillance, was partially inspired by the Khan case. The consequent Code of Practice for Regulation of Investigatory Powers (RIPA) explicitly references compatibility with Articles 1, 6 and 8 of the ECHR.
3. Disclosure of Unused Material
In the notable case of Rowe & Davis v United Kingdom (2000), the ECJ ruled that a failure by the Prosecution to provide the trial judge with potentially relevant documentary material to enable him to rule on its disclosure to the defence amounted to a breach of Article 6. It is again of note that this case was a trigger for the introduction of the Criminal Investigations and Procedure Act (1996) (CIPA) which codified the obligation of the Prosecution to provide primary disclosure of any material that might undermine their case or assist the defence. This is another example where the application of the ECHR to UK domestic law resulted in reform of the criminal process. Subsequent case law demonstrates that appellate courts have been prepared to uphold appeals against conviction in the most egregious cases of material non-disclosure. Most recently in the Post Office prosecution appeals where the original trials and/or convictions were deemed to have been procedurally flawed because of the failure of the prosecution to disclose defects in the Horizon software.
4. Reasonable Time Requirement
Article 6-1 imposes a reasonable time requirement for the conclusion of criminal proceedings. In written evidence to Parliament in 2023 the SFO estimated that the average length of time that it took to investigate a case to the point of charge or taking no further action was 4 years[1]. In 2022 the Criminal Bar Association analysis of fraud trials concluded that for defendants on bail trials concluded on average 632 days from the date of charge. It is thus perfectly normal for a defendant on bail for a serious fraud offence to wait an average of 5-6 years from the date of arrest to the conclusion of a trial.
The ECHR 6-1 makes it clear that all legal proceedings (both civil and criminal) should be concluded within a reasonable time frame. In assessing what constitutes “reasonable” in this context the court takes into account the complexity of the case, the behavior of the defendant and the conduct of the prosecuting authority. In the UK courts have not been shy of finding a breach of Article 6-1 in appropriate cases (see Dyer v Watson (2004) 1 AC 379). But the bar has been set necessarily high before the court will go to the extreme of dismissing a case.
This has become an acute issue following the increased delays provoked by a combination of an underfunded criminal justice system and the Covid epidemic. Consequently, there has been a tendency in the UK for judges to rule that, save in the most egregious cases, any prejudice caused by delays can be reflected in reduction of sentence on conviction. However, this pre-supposes that defendants will be convicted. In many instances they are acquitted. Should the UK leave the ECHR it could potentially act as a green light for future delays to escape any form of effective sanction.
5. Conduct of Search and Seizure
ECHR case law has evolved over the years to create a spectrum of safeguards surrounding the conduct of searches by law enforcement authorities. There has been particular emphasis on protecting the right to privacy (Article 8) and to peaceful enjoyment of possessions (Article 1). These safeguards and protections have found statutory life in the UK in the provisions of PACE and its associated codes of practice. Leaving the ECHR could compromise these protections and encourage law enforcement authorities to adopt more heavy-handed tactics without fear of any effective sanctions.
Legal Consequences of Leaving the ECHR
Should the UK decide to leave the ECHR, it would require the repeal of the Human Rights Act which enshrines and gives effect to those rights domestically. Thus, parliament would have to approve both courses of action. Another legal consequence of leaving the ECHR would be breaching the Good Friday Agreement which required the convention to be part of the law in Northern Ireland. Further, the EU has stated in terms that if the UK leaves the ECHR it will terminate the section of the post-Brexit UK-EU Trade and Co-operation Agreement that guarantees security and judicial co-operation. This could result in the termination of the extradition of suspects from the EU to stand trial in the UK.
The UK has an impressive record of compliance with the ECHR. The average number of violations found against the UK has consistently declined since the introduction of the Human Rights Act in 2000. In 2023, only one violation was found against the UK. This has been ascribed to the more robust adherence to the principles of the ECHR by authorities in the UK combined with rigorous application of the principles by the courts. This, in turn, has resulted in far fewer domestic decisions being over-turned by the ECJ.
Before the UK advocates leaving the ECHR to facilitate the implementation of more effective immigration control, it needs to ask the question whether those short-term gains (which are in themselves questionable), merit jettisoning its exemplary record for upholding Human Rights. The highly evolved combination of case law and statutory provisions that have been under-pinned by the ECHR could unravel and the consequences for our already hard-pressed criminal justice system could be severe.
[1] FRA0019 – Written evidence submitted by the SFO (October 2023)