| Login | Become a Member | Add a Quote | | Sunday, September 7, 2008 |
| ||
|
| ||
| Home | My Profile | Browse |Search | Submit | Links | Contact |
| Words of Wisdom: | "Never be bullied into silence. Never allow yourself to be made a victim. Accept no one's definition of your life; define yourself." - Mayumi Yamazaki |
|
| ||
Human Rights and the Criminal Justice System In our society today the term ‘Human Rights’ is widely acknowledge and most people believe they know what they are. But do most people really understand its concept? Constantly the media brings up issues relating to it, for example, just recently human rights activists accused the U.S.A. of mistreating their prisoners and even torturing them, this being a breach of their Human Rights. (BBC News 2005) When asked what Human Rights are most people will come up with general rights such as the freedom of speech, the right to live or the right not to be tortured. In 2004 the European Court of Human Rights received over 20.000 applications and but only delivered 718 judgments after declaring the rest inadmissible. (Council of Europe, 2005) This leads to the question what exactly are Human Rights and what role should they play in contemporary society especially in the criminal justice system. The twentieth century and especially the horrors of the Holocaust brought about a movement of Human Rights on the global level. (Macions & Plummer 2002) ‘With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: …higher standards of living, …universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.’(United Nations 2005a) Although the idea of Human Rights became prevalent after the Second World War as is stated in the UN Charter, the idea is not new. In the 17th century the idea that each individual was born with certain rights irregardless of social, legal or political institutions became popular in the western World. These Rights where known as ‘natural rights.’ John Stewart Mill for example believed that each individual should have certain rights in private. Theses rights included the freedom to think and feel as one wished, the freedom to public opinion which today is know as freedom of speech and the freedom to pursue ones tastes even if they are deemed ‘immoral’ but only as long as they do not harm others. He felt that without all of these freedoms, one could not be considered to be truly free. (Gray, 1998) In the ‘Rights of Man’ Thomas Paine states that all men are born free and with equal rights. He goes on to say that all men have natural and imprescriptible rights, these being liberty, property, security, and resistance of oppression. (Philip, 1998) Some of his points were later adopted in the United States Declaration of Independence in 1776 by men such as Thomas Jefferson. (The White House, 2005) The declaration states: ‘We hold these Truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.’(University of Indiana, n.d.) In the same year following the French Revolution its assembly also adopted ‘The declaration of the Rights of Man’. Much like the American declaration it gave the French people ‘natural and unalienable’ rights. (Yale Law School, n.d.) After the Second World War the UN Charter was drafted and in consequence (Goodin & Pettit, 1998) the Universal Declaration of Human Rights (UDHR) was drawn up and put in force in 1948. It has been acknowledge on the global level and today most nations have signed this declaration. This declaration established the basis for contemporary society’s outlook on Human Rights. (Human Rights, 2005) The UDHR is a document aimed to give every individual on this planet certain rights. In its each of its 30 Articles the rights are explained. These rights range from the right to life in Article three to the right to education. (UN, 2005 b) In 1950 the European Union also established a convention which protects the rights of each individual. It is called the European Convention on Human Rights and was signed in Rome on the 4th of November 1950. Since then there have been five more protocols. This convention is far more detailed then the UDHR and is enforced throughout all countries in the European Union. (Council of Europe, 2003) Any cases regarding Human Rights can be brought before the European Court of Human Rights whose ruling is binding. Many countries in the EU have the Human Rights incorporated in to their law. In Germany for example they form part of the Constitution. (Die Bundesregierung 2005) In 1998 parliament passed a bill establishing the Human Rights Act 1998. The rights are given in Schedule 1, Part 1. The rest of the act is concerning the implication of Human Rights. This act mentions two different rights. The first are ‘qualified rights’ or rights which public authorities may infringe upon if it is necessary to do so in order to prevent crime, to protect national security, to protect public safety and the economic well being of the country. The Second are absolute rights. These are the right to life, prohibition of torture, prohibition of Slavery and forced labour, the right to liberty and security and the right to a fair trial as states in Article 5 and 6. ‘Absolute rights are those which cannot be restricted or balanced with any general public interests. … Article 5 And 6 as well as being absolute rights, are sometimes referred to as…’limited rights’ because of the extensive limitations which are places within the Articles themselves. (Centrex, 2005 b) Before considering the role that Human Rights should play in the Criminal Justice system it is imperative to consider some of the duties that come along when implicating Human Rights. As state above most countries have accepted the Human Rights into its contemporary legislation. These usually include all of the above as well as others such as no punishment without the law, respect for private and family life, freedom of thought, conscience and religion, freedom of assembly, freedom to marry and prohibition of discrimination. (Centrex, 2003) Each right given to a person correlates to a duty of another. If one has the right of private and family life it is everyone else’s duty not to interfere with another’s right. If the duty that correlated with the right is taken away the right becomes meaningless. This duty that one has can range from non-interference to an active performance. (Benn &Peters, 1959 pp. 89) A duty that is associated with the right to freedom of speech is to tolerate the opinion of another when this is expressed. The right to a fair trial on the other hand imposes a number of duties on the certain people. Here a whole system needs to be put into action so achieve this. Barristers, court clerks and judges devote their entire professional life to achieving this. This shows that mere acceptance is not enough and an act of active performance is needed to make sure that a person receives the right to a fair trial. The same principle can be applied to each right that is given to men. It also needs to be pointed out that if the rights given to the people are inalienably connected to men as is stated in some of the declarations and conventions then there would be no need for a Criminal Justice System. This is because no one would be able to deprive them of the rights given such as the right to liberty and freedom. (Indiana University, n.d.) This would make it extremely difficult or even impossible to bring people to justice for offences that have been committed without breaching his or her inalienable rights. According to Thomas Hobbes we have a right to everything even the right to take another mans life. He states however that the second law is that we should be willing to give up our right to everything and be content with as much liberty as we are willing to grant every other person for the sake of peace and happiness. This he says should only be done if the others also agree to do so. (Gaskin, 1998) This means that a ‘relationship’ is or has been established. A breach of this relationship means that the trust that was placed in it has been broken. (Oxford English Dictionary, 2005 a) In contemporary society, we elected a government. With the power given to it the government and its agencies maintain law and order. In other words they ensure that this bond of trust is not broken. When this bond is broken society becomes a victim and the Criminal justice system has been given the power to deal with the offender if necessary, thus assuring that peace and happiness is maintained among the majority of the people. This shows that the agencies of Criminal Justice System need be granted a degree of autonomy from the Humans Rights Conventions and legislations passed. This however does not mean that the Criminal Justice System can do what ever it wants. Human Rights should still play an important part when dealing with offenders. (Human Rights Act 1998) If this power given is misused the Criminal Justice System is breaching the bond of trust just as much as any offender they deal with. Its mission is to ‘prevent and detect … crime, give victims and witnesses more support, punish and rehabilitate … offenders.’ (CJS, 2005) Although autonomy is granted in regards of the right to liberty and freedom and the right to a private family life, these rights should only be infringed upon if necessary. Other rights prohibit torture, slavery and discrimination (Human Rights Act 1998, Schedule 1, Article 3, 4 and 14) and should never be breached. The Human Rights Act gives the suspected offender the right to a fair trial. It should be the main focus of the agencies to ensure this. The main agencies of the Criminal Justice System are the Police Service, the Crown Prosecution Service (CPS), the courts, the Prison Service and the Probation service. Each of these agencies plays a different but vital role. There should be a general guideline that governs how each of these agencies should act. Here in Europe the protection of Human Rights are of primary importance which allows the Convention text to be interpreted widely. (Golder v United Kingdom) The courts interpretation has led to the development of three principles which are legality, necessity and proportionality and issues regarding the accountability of public authorities. (Centrex, 2005 b) Before any of the agencies can breach the rights of a person is essential that the actions that are taken fall within the domestic law. As mentioned above any breach of a person rights should only occur if it is absolutely necessary. Any action taken should not only be legal and necessary but also proportionate. This means that, for example, a little child who has been caught shoplifting should not be imprisoned for life, were in a murderer’s case this is mandatory. (Centrex, 2005 c) Most offenders first come in contact with the Criminal Justice System through the Police Service. It should be the task of the police to gather all of the evidence, disclose it and then assisted by the CPS present the case to the courts. It is not up to the police or the CPS to decide if the suspected offender is innocent or not. Both of these agencies should work on the principle that ‘anyone charged with an offence is presumed innocent until proved guilty according to law.’ (Geneva Convention Act 1957) The matter of guilt is up to the court and the jury to decide. (University of Portsmouth, 2004) It does need to be remembered that the police may take someone into custody if necessary. All of the procedures including the trial can have life changing effects on any person involved. (Centrex, 2005 b) Depending on the charge he or she may lose their liberty for live. It is very important that the agencies involved act professional as they may violate certain rights of anyone involved. It is the courts duty to deliver ‘justice effectively and efficiently to the public. We are responsible for the administration of the … criminal courts in England and Wales.’ (HMCS, 2005) The CPS prosecutes all suspected offenders. They need to make sure that they do this in accordance with the Human Rights Act especially Article 6. (CPS, 2005) This is crucial and helps to ensure that an innocent person or persons are not deprived of their liberty. In 1993 the conviction of murder against the Taylor sisters a year earlier was squashed. The conviction was held as unsafe. (R v Taylor and Taylor) In another case in 2003 Sally Clark’s conviction of murdering her two infant babies was also squashed by the Criminal Division of the Court of Appeal. (R v Clark) In both cases the police withheld evidence from the defence that had been crucial to the case. There are many more cases here in the UK where the miscarriage of justice is evident. (Innocent, 2005) This is in direct breach of the European Conventions and the Human Rights Act. It is essential that the Criminal Justice System need to make sure that innocent people are not deprived of their right until after a fair trial, unless they are held in custody by the police because they pose a threat. At the same time they also need to ensure that the guilty are convicted. Each of the agencies plays their part in making sure that a suspect receives a fair trial. As Benn and Peters said this right becomes meaningless if the duty correlating with it is not performed properly. (1959 pp. 89) There is legislation in place to govern this process, such as the Police and Criminal Evidence Act 1984, the Criminal Justice and Public Order Act 1994 and the Criminal Justice, Court Service Act 2000 and the Criminal Justice Act 2003. The rules governing the Disclosure of evidence in regards to the Defence have however not been repealed yet. This to some degree needs to be done before a fair trial can be conducted. In conclusion it can be said that the idea of Human Rights is good. They are after all in place to protect all men and especially the vulnerable of behaviour that may be degrading, cruel and inhuman. The oath proscribed by the Police Reform Act 2002 describes quite well the role that each employee of the Criminal Justice System should play in regards with the proscribed Humans Rights. ‘… I will well and truly serve, … with fairness, integrity, diligence and impartiality, upholding fundamental human rights and according equal respect to all people; and that I will, to the best of my power, cause the peace to be kept and preserved and prevent all offences against people and property; and that while I continue to hold the said office I will, to the best of my skill and knowledge, discharge all the duties thereof faithfully according to law.' The Criminal Justice System is not there to deprive people of their rights, but to maintain law and order by upholding the fundamental rights that each person has. This is done ‘to build a safe, just and tolerant society, in which the rights and responsibilities of individuals, families and communities are properly balanced, and the protection and security of the public are maintained.’ (Metropolitan Police, 2005) It can be said that Criminal Justice System is there to act as an utilitarian force to enforce the law so that the greatest possible welfare can be achieved across most parts of the population. (Oxford English dictionary, 2005 b) 2477 words Bibliography BBC News. (2005). US defends prisoners' transfers. Retrieved 13/12/2005 from http://news.bbc.co.uk/1/hi/world/americas/4515950.stm Benn, S. & Peters, R. (1959). Social Principles and the democratic State. London: George Allen & Unwin Ltd. Centrex (2003). Definitions and References. Ashford, UK: Centrex Centrex (2005 a). Probationer Training Study Notes: General Police Issues, Stage 2. Centrex: Ashford, UK Centrex (2005 b). Human Rights Act and the Police Service: Workbook. Centrex: Ashford, UK Centrex (2005 c). Probationer Training Study Notes: Crime, Stage 2. Centrex: Ashford, UK CJS (2005). Working together for justice. Retrieved on 16/12/2005 from http://www.cjsonline.gov.uk/the_cjs/index.html Council of Europe (2003). Convention for the protection of Human Rights and Fundamental Freedoms as amended by Protocol 11. [Electronic version] Retrieved on 19/12/2005 from http://www.echr.coe.int/NR/rdonlyres/D5CC24A7-DC13-4318-B457-5C9014916D7A/0/EnglishAnglais.pdf Council of Europe (2005). European Court of Human Rights: Survey of Statistic 2004. [Electronic version] retrieved on 19/12/2005 from http://www.echr.coe.int/NR/rdonlyres/461D3893-D3B7-4ED9-AC59-8BD9CA328E14/0/SurveyofActivities2004.pdf CPS (2005). About the CPS. retrieved 16/12/2005 from http://www.cps.gov.uk/about/index.html Criminal Justice Act 2003. (C 44) London: HMSO Criminal Justice and Court Service Act 2000. (C 43) London: HMSO Criminal Justice and Public Order Act 1994. (C 33) London: HMSO Die Bundesregierung (2005) Grundgesetze. Retrieved 13/12/2005 from http://www.bundesregierung.de/pureHtml-,413.429735/Grundgesetz-fuer-die-Bundesrep.htm Gaskin, C. (Ed.). (1998). Leviathan, Oxford, UK: Oxford University Press. Geneva Convention Act 1957 (C 52) HMSO: London Goodin, R & Pettit, P (1998). Contemporary Political Philosophy. Oxford, UK: Blackwell Publishers. Golder v United Kingdom (1975) 1 EHRR 524 Gray, J. (1998). On liberty and other essays. Oxford, UK: Oxford University Press. HMSC (2005). Her Majesties Court Service.Retrieved on 16/12/2005 from http://www.hmcourts-service.gov.uk/ Human Rights (2005). Drafting and Adoption. Retrieved on 19/12/2005 from http://www.udhr.org/history/default.htm Human Rights Act 1998 (C 42). London: HMSO Indiana University (n.d.). Declaration of Independence. Retrieved on 16/12/2005 from http://www.law.indiana.edu/uslawdocs/declaration.html Innocent (2005). Fighting miscarriages of Justice. Retrieved 16/12/2005 from http://www.innocent.org.uk/index.html Macions, J. & Plummer, K. (2002). Sociology: A global introduction. Harlow, UK: Pearson Education Limited Metropolitan Police (2005). The Richard Dimbleby Lecture 2005 by Sir Ian Blair QPM. Retrieved on 20/12/2005 from http://cms.met.police.uk/news/policy_organisational_news_and_general_information/commissioner/the_richard_dimbleby_lecture_2005_by_sir_ian_blair_qpm Oxford English Dictionary (2005 a). Trust. [Electronic version] Oxford, UK: Oxford University Press. Retrieved on 16/12/2005 from http://dictionary.oed.com/cgi/entry/50026973/50026973se8?query_type=word&queryword=trust&first=1&max_to_show=10&sort_type=alpha&result_place=1&search_id=zrjq-aAq2mA-4905&hilite=50026973se8 Oxford English Dictionary (2005 b). Utilitarianism. [Electronic version] Oxford, UK: Oxford University Press. Retrieved on 20/12/2005 from http://dictionary.oed.com/cgi/entry/50274046?query_type=word&queryword=Utilitarianism&first=1&max_to_show=10&single=1&sort_type=alpha R v Clark - [2003] 2 FCR 447 R v Taylor and Taylor (1993) 98 Cr App Rep 361 CA United Nations (2005a). Charter of the United Nations. Retrieved 13/12/2005, from http://www.un.org/aboutun/charter/ United Nations (2005b). Universal Declaration of Human Rights. Retrieved 13/12/2005 from http://www.un.org/Overview/rights.html University of Portsmouth (2004). Introduction to Criminal Justice: Level 1. Portsmouth, UK: Institute of Criminal Justice Philip, M. (Ed.). (1998). Rights of Man, Common Sense, and other political writings. Oxford, UK: Oxford University Press Police and Criminal Evidence Act 1984, (C 60) London: HMSO Police Reform Act 2002 (C 30). HMSO: London The White House (2005). Thomas Jefferson. Retrieve on 16/12/2005 from http://www.whitehouse.gov/history/presidents/tj3.html Yale Law School (n.d.). Declaration of the rights of man. Retrieved on 16/12/2005 from http://www.yale.edu/lawweb/avalon/rightsof.htm This essay is only for research purposes. If used, be sure to cite it properly! |
|
All images, coding, essays, and pages cannot be used without the prior
written consent of this web site. Copyright © 1996-2008. The Essay Depot. All rights reserved. Privacy Policy. |