Human Rights and the European Court

Making the most of  European Convention of Human Rights and the Human Rights Act 1998 by Ingrid Kamark

I welcome the efforts of individuals in the UK who are trying to persuade the British Government to reconsider and accept the recommendations as set out in the Home Affairs Select Committee Report: ‘The Conduct of Investigations into Past Cases of Abuse in Children’s Homes’ 2001-02. The Report was at that time a ray of hope to all who suffered injustice, firstly by those who have made false allegations, and secondly, injustice caused by the State itself which assumes that the accuser(s) are always right and gives almost unfailing support to them based on that assumption. The willingness and practice of persons such as the police, the CPS lawyers, and the judiciary to ensure that the accused is brought to trial and convicted at any cost runs counter to the presumption of innocence which is a cornerstone of English law. It is also a principle enshrined in the European Convention on Human Rights.

Article 6(2): ‘Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.’

There are exceptions in English law which accept the reversal of burden of proof which has been set out by statute: strict liability is one such example. (These, are, broadly speaking, cases where an offence has been committed and a party is presumed to be negligent for causing the incident/accident). Statutory offences with reverse of this burden of the burden of proof generally have a lower standard test of culpability known as the ‘balance of probabilities’ which means that the jury is directed to ask itself to assess the likelihood that the defendant is to blame for the offence. In such cases the starting point is the fact that a wrong has occurred (the actus reus) and the jury has to decide whether blame can be imputed to the defendant. Prima facie the defendant is blamed by the complainant until such time as the defendant can disprove that s/he caused the wrong e.g. the defendant argues that the complainant that the wrong was in fact caused by the complainant or was caused by another party or unforeseeable circumstance. The trigger of such cases is damage to persons and/or property and in most cases is a tangible, assessable damage.

By contrast, allegations made by adults of sexual abuse by someone in their childhood are much more problematic. In these cases, there is no tangible offence, merely verbal allegation by an accuser. Any such allegation is taken by law enforcement and the legal system as being factual; otherwise there would be no basis for investigating and prosecuting the alleged offence. But on this premise the burden of proof has shifted onto the defendant to prove that the accuser is lying or mistaken. Juries are supposed to be told in such trials that they should only convict a defendant if they are sure that the defendant committed the offence (the ‘reasonable doubt’ test). But in practice they are applying the probability test (the likelihood of the accused to be culpable for an alleged offence).

This test is borne out by the many guilty verdicts in multiple accuser cases which have issued from police trawling operations. The multiple allegations which are not eyewitness accounts corroborating the allegations of the primary accuser are combined into a single trial. The evidence which has been gathered by the investigating team is fraught with dangers not only because the evidence may be fabricated by the accusers but also by the tainting of evidence collected by the police using opaque methods of questioning and drafting witness statements themselves. Judicial decisions have permitted and endorsed the practice of admitting ‘similar fact evidence’, (which is in reality, mere allegation, not fact) which enables the prosecution to combine all allegations of sexual offence whether similar or dissimilar onto the charge sheet. In the past judges had to assess whether similar fact evidence was admissible or inadmissible and would have made the latter decision if the information was likely to be prejudicial to the defence rather than probative in evaluating a relevant issue of the case.

The reality is that juries will generally be swayed by the similar fact evidence as proof that the offences occurred. The balance of probabilities test supplants the one of reasonable doubt: they will be persuaded by the numbers of accusers and take the view that the greater the number of accusers and allegations, the more likely it is that the offences occurred.

What the Court is not told is how the multiple allegations were generated. The Court assumes that the police have been honest and have properly conducted their investigations. It would be a brave, brazen, (efficient!) defending lawyer who cross-examines the investigating officer as to the exact details of how their team extracted their information from interviewees. There will be no recording of the interviewees by video or tape to see how the complainants were approached and what questions or inducements they had been given. Under the present described circumstances it is apparent that the similar fact evidence is unsafe to be presented to the jury in allegations of historic allegations of sexual abuse.

You may be asking yourself how these issues square with human rights principles. The UK signed the European Convention of Human Rights and instituted the Human Rights Act 1998. As UK citizens we may have redress to the institutions which honour the original Articles of the European Convention. The Human Rights Act was designed to give direct effect to decisions in cases which complaints raised human rights issues. My own experience of the courts, particularly the appeal courts in the UK is that they refuse to accept the significance of their obligations to remedy human rights violations unless they are compelled to do so. The Human Rights Act is not an optional extra which the courts may apply at their discretion: the UK courts should be, but are failing to make decisions which do not run counter to the tenets of the human rights Convention and the Act.

It is submitted that the current practices employed by the state for bringing to trial historic allegations of child abuse are so unsafe and flawed that until and unless safeguards such as those in  the ‘The Conduct of Investigations into Past Cases of Abuse in Children’s Homes’ 2001-02 (ibid above) are implemented the accused cannot receive a fair trial in the UK. This breaches the Convention Article 6(1): ‘anyone accused of a criminal trial is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’. The tribunal is ‘unfair’ because in allegations of child abuse there is the presumption that the allegations are true and therefore the accused is burdened with the presumption of guilt, which is amplified in multiple allegation cases. The evidence presented to the court in an historic allegation case may well be stale because of the gap of years, if not decades when an allegation may be made. The evidence may well be tainted by the police interviewing technique. Can it be said that it is ‘a fair hearing’ to present this type of evidence to a jury?

How can the UK tribunal be ‘impartial’ if it presumes from the outset that the accused is guilty? The issue of ‘reasonable time’ may be pertinent here as well: some lawyers may argue that this means that a person charged with an offence should be put on trial promptly. But might it also be construed as meaning that persons should make their allegations within a reasonable time of the alleged offence? If so, then this would validate the argument for a statute of limitations for prosecuting such allegations. Can it be successfully argued that the UK has been systemically prosecuting and incarcerating individuals accused of sexual abuse using methods and rules and case-law which circumvent the usual procedures for criminal cases? Case-law from the European Court of Human Rights suggests that, for example, presumptions of fact or of law operates in every legal system and that the Convention does not prohibit such presumptions in principle. The Court does not wish to be seen to be meddling in domestic court affairs. ‘It does, however, require the States to remain within certain limits which take into account the importance of what is at stake and maintain the rights of the defence.’ (p.126 Criminal Justice and the Human Rights Act 1998 , Professor Steve Uglow (2001 edition). The Court has hitherto been wary of encroaching upon the sovereignty of states in the individual state’s lawmaking, but this may now well have changed given the ruling from the European Court of Justice to the European Commission which ‘gives the Commission an unprecedented role in the administration of criminal justice’. (The Times, September 14th 2005).

In essence, the complete lack of safeguards in police investigations, the combining of multiple allegations issuing therefrom under the practice of corroboration by volume and the subversion of the rules of evidence in respect of historic allegations of sexual abuse flies in the face of justice and should not be entertained by any signatory member state which has undertaken to ensure that its laws are compatible with the Human Rights Convention. The more serious the allegation and the more severe the punishment, then greater is the requirement to ensure that the state institutions honour the presumption of innocence of the accused; that legal safeguards are in place which screen the quality of the evidence gathered; that the evidence is real as opposed to generated and fabricated by the processes of investigation.

How do we persuade the UK Government to accept the findings of the Home Affairs Report and act upon them? It is possible to do so with the assistance of the European Commission and the European Court of Human Rights. I would ask interested readers to write or email the European Commissioner: The Council of Europe, Avenue de l’Europe, 67075 Strasbourg Cedex France or email Commissioner HR. He explains his role on the Council of Europe website: The Office of the Commissioner for Human Rights was established in 1999 as an independent institution within the Council of Europe. In accordance with his mandate, and without excluding the possibility of complementary actions, the Commissioner focuses his activity on four main areas.

  1. These are the promotion of the education in and awareness of human rights,
  2. the encouragement for the establishment of national human rights structures where they do not exist and facilitate their activities where they do exist,
  3. the identification of short-comings in the law and practice with regards to human rights and, lastly,
  4. the promotion of their effective respect and full enjoyment in all the member States of the Council of Europe.

The Commissioner therefore has the remit to look at systemic state-sanctioned human rights abuse; this should therefore include the defects in the UK law enforcement and legal system which have given rise to numerous wrongful imprisonments. The Commissioner is empowered to look at allegations of human rights abuse and can write an Opinion which the offending member-state is obligated to consider and implement. Interested parties should set out in detail which part of the Convention has been violated how the state has caused the wrongful conviction and be prepared to supply documentary evidence if requested. They may also set out how they think the Commission could remedy the injustice, either with reference to the guidelines proposed by the Home Affairs Report above or with suggestions of their own. It may be better to write in some depth to him about the particular and general injustice, rather than complain in a standardised petition. For those who have exhausted all domestic remedies by appealing against wrongful conviction in the UK Court of Appeal, there is the possibility of taking their case to the European Court of Human Rights in Strasbourg.

The applicant or his/her representative will need to show that a Convention Article(s) has/have been breached and they must quote the relevant section and/or subsection under which they are complaining. Applicants will find helpful advice here. Prospective applicants to the European Court of Human Rights must do so within six months of the last appeal decision the UK or else they will lose this opportunity. The earlier the case is filed, the better. The Court’s address is: The Registrar, European Court of Human Rights, Council of Europe F-67075 Cedex France. Make sure that you can support your statements with documentary evidence wherever possible and obtain copies of all appeal decisions in the UK. Note 9 of the Guidelines states that it is not necessary to have tried to have the case reopened after going through normal appeal procedures in the Courts, nor do you have to use post-appeal non-contentious remedies such as petitioning, or writing to commissioners, MPs, heads of state etc before you can apply to the European Court of Human Rights. You may ask whether it costs to use the European Court of Human Rights. It is possible for the European Court of Human Rights to grant legal aid to engage a representative if it decides to proceed to a full hearing, but the initial Application is made by yourself or your representative and the Court usually decides the case on the basis of the documentary evidence you have submitted to it. You can make the application yourself, but be sure that what you submit is within the remit of the Court and that you are certain about which part of the Convention has been breached. There is nothing to prevent aggrieved individuals from writing to the Commissioner as well as making an application to the European Court of Human Rights. However if you are at the beginning of the appeal stage in the UK then the only present option for redress would be with the Commissioner.

I have made best endeavours to provide accurate and helpful information. The information I have discerned may change at any time and I cannot accept responsibility for giving legal advice. Please check websites for any changes and updates. I wish you the best of luck with your letter-writing/application. Collectively we might be able to change the system and redress the balance.

INGRID KAMARK  15th Setember 2005

We are grateful to Ingrid for permission to reproduce this article. If you would like further details about this process contact her.

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