Human Rights - Criminal Law

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  • Article 5, (The right to liberty and security of person) 
  • Article 8, (The right to privacy)
These Articles are the most applicable to the question of the exercise of police powers.
 
The police are under a duty not to breach Convention rights and to protect individuals from the actions of others. However, the prevention of crime and the protection of the rights of others would be legitimate grounds for interfering with certain rights. For example, police surveillance, fingerprinting, retaining personal data, stop & search would normally breach Article 8 rights, but they are not prohibited by the Human Rights Act as long as the action is in accordance with the law and is necessary and proportionate.
 
Other relevant articles are:
 
  • Article 6, (right to fair trial)
  • Article 7, (prohibition of retrospective criminal penalties, this is an absolute right)
  • Article 10, (freedom of expression)
  • Article 11, (freedom of assembly and association)
 
Possible challenges may be made in the area of bail where a person previously convicted of a serious offence is only granted bail in exceptional circumstances or where bail is excluded where the defendant committed a serious offence or where the defendant arrested for breach of bail is again denied bail. Also the disclosure provisions of the Criminal Procedure & Investigation Act 1996 may be subject to scrutiny as it can often be difficult to obtain relevant information from the prosecution and it is also arguable that the timing of disclosure by the prosecution, (after committal and after the defendant has set out his case) leads to unfairness.
 
Entrapment methods of the police have already been found by the European Court of Human Rights to breach Article 6, if there was no pre-disposition on the part of the defendant to commit the crime.
 
A person is denied a fair trial if they are denied access to legal advice at crucial moments following their arrest, such as during a police interview. Article 6 also includes a right to a trial within a reasonable period of time, especially where a person is denied bail, (Article 5(3)) and therefore any delays may present a problem. This is especially so if complex fraud cases. 
 

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