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The right to a fair trial: part two

This post explores the issue of human rights in the UK and the right to a fair trial. The first part of this article was posted 3 November 2015.

Human rights law has had a long and tortuous history in the UK, defined by some of the most fascinating cases in legal memory.

The case of John Wilkes was a milestone in establishing the right of free speech. Today a statue of him watches over the Rolls Building of the Royal Courts of Justice in Fetter Lane. There he is described as “A champion of English Freedom,” although he was in fact something of a popular rascal.

In 1763, Wilkes wrote a scathing attack on a speech delivered by King George III when he opened Parliament. It was published in a weekly paper which Wilkes himself had founded, called The North Briton. First the printers of the paper were arrested on the orders of the King, and then Wilkes himself. A writ of habeas corpus was immediately issued by the Chief Justice of the Common Pleas, Sir Charles Pratt, to have Wilkes brought before the court.

The judge ordered Wilkes to be released. He said that it could not be right that anyone should be arrested on a general warrant issued by the King, which did not specify the crime he was said to have committed, and that the publication of a critical article about George’s speech was not a crime. This was by no means Wilkes’ only appearance before the courts, but matters were settled by another Chief Justice, Lord Mansfield, who confirmed the importance of the right to free speech.

James Somerset was an African who was transported as a slave to Virginia in America. There he was sold to a man called Charles Stewart. In 1769 Stewart brought his slave with him on a journey to England. Once in England Somerset looked after his master for two years, but when Stewart decided to return to Virginia, he escaped his master’s control. Stewart employed men to recapture him, and he was taken to a ship called the Ann and Mary, which was bound for Jamaica. There, Somerset was kept in irons. Word of Somerset’s plight leaked out before the ship set sail, and a writ of habeas corpus was issued to bring him before a court.

The case was heard by Lord Mansfield. It was argued that there were over 10,000 slaves in England at this time, and if he let Somerset free the result would be to abolish slavery altogether. This would cause great economic loss to many people. Lord Mansfield ended slavery in England with these words: “The state of slavery is so odious that nothing can be suffered to support it, but positive law [meaning an Act of Parliament]. […] The air of England is too pure for any slave to breathe. Let the black go free.”

William Murray, 1st Earl of Mansfield
Image credit: William Murray, 1st Earl of Mansfield by Jean Baptiste van Loo. Public Domain via Wikimedia Commons.

Human beings have unfortunately proved to be at their most imaginative and inventive when it has come to inflicting punishment upon their fellow men and women. Our own history of punishments has been as savage and inhumane as that of many other nations. Although the last executions in the UK took place in 1964, the death penalty is still in place in a number of Commonwealth countries, including Barbados.

Our Supreme Court Judges, sitting as members of a Committee of the Privy Council, are the final court of appeal from a number of other countries. In the case of Bradshaw v Attorney-General of Barbados (1995) two men who had been convicted of murder in Barbados had been sentenced to death. They each lost a number of appeals, and in 1993 the Court of Appeal in Barbados dismissed their final appeals. By this time they had been ‘on death row’ awaiting execution for over seven years.

Section 15 of the Constitution of Barbados adopts the same words as the European Convention on Human Rights, and provides that ‘No person shall be subjected to torture or to inhuman or degrading punishment. It was argued before the Privy Council that to execute men who had been under sentence of death for so long would amount to ‘inhuman or degrading punishment’ in violation of this constitution. The Privy Council agreed with this argument, and held that where it was proposed to execute a defendant five years or more after sentence the delay would be so great as to make the punishment inhuman or degrading. Accordingly, sentences of life imprisonment were substituted for the death sentences.

This judgment had a profound impact upon the fate of other prisoners in Barbados who had also been awaiting execution for many years. It has also been used to save the lives of prisoners in other Commonwealth countries.

There are many who are dissatisfied with the Human Rights Act, and the judgments of the European Court of Human Rights, based in Strasbourg, France. Their main criticisms are that laws are often interpreted by the courts in a manner unduly favourable to those who arrive or stay in this country illegally, commit crime, or in some other way work against the interests of British citizens. In 2011 the Home Secretary, Teresa May, announced that a Commission would be established to investigate the creation of a British Bill of Rights. She said that it was time to assert that our Parliament makes the laws, rather than the courts, and that “the rights of the public come before the rights of criminals.” This announcement followed a ruling by the Supreme Court, which she described as “appalling,” that not granting sex offenders the opportunity to seek a review of their sentences amounts to a breach of their human rights.

On the other hand, Kenneth Clarke, (then Lord Chancellor and Secretary of State for Justice), did not agree with this analysis, and does not share this view of the Human Rights Act. In October 2011 he used strong language in criticising the arguments of a fellow cabinet member, accusing the Home Secretary of using ‘laughable, child-like examples’ to denigrate the Human Rights Act and making a ‘parody’ of court judgments. Here he was referring to her inaccurate complaint that a court had agreed to permit an illegal immigrant to remain in the UK because he had become attached to his cat! Lord Woolf, who has served as Lord Chief Justice, added to this a view of the wider picture. He suggests that if an influential and respected Member State such as the UK pulls out of the European Convention, then other countries whose standards of treatment of their citizens already fall a long way below ours will take this as a signal that they need not comply either.

Feature image credit: John Wilkes Esq. before the Court of King’s Bench engraving from The Gentleman’s Magazine. Public Domain via Wikimedia Commons.

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