Monthly Archives: May 2011

Human Rights: stuffed by legalese?

Human Rights Defence

Image via Wikipedia

Thanks to a friend’s news article link on Facebook (see below); today is another one of those days where the first thing you read makes you want to explode with a torrent of explicatives.  The subject of my incredulous angst was yet again, the Human Rights Act. To be fair, it’s not the actual legislation that is really at fault per se, as usual it’s down to its interpretation and application. However; isn’t that so true of many of our laws?

Many would argue that predominantly career and salary orientated lawyers are the ones responsible for making a mockery of our Judicial process and I have to admit, I’ve also been known to subscribe to that train of thought from time to time. However many would also argue, this element of our legal system alone makes it special. Doesn’t the fact that legal argument, interpretation and challenge can be applied to legislation, make it fairer and more safe in its application?

Burglar is freed to care for his children after judge rules prison breached his human rights: In a staggering judgment, the Appeal Court ruled that the rights of Wayne Bishop’s five children were more important than those of his victims or the interests of justice… (dailymail.co.uk)

Article 8 of The Human Rights Act, the right to a family life, also repeatedly used by foreign criminals to avoid deportation from the UK was (arguably) never intended to be used in this way. This particular case is also believed to be the first time it has been used to let a prisoner walk free from jail. That said, the Human Rights Act is only one piece of (statutory) legislation which (often), produces vastly different outcomes to the ones that were originally intended. Much of this results from the working practises of our legal system. A process that is based upon a combination of both Statutory Law and Common Law, and one where the judicial process is (quiet rightly) open to challenge.

More than 200 foreign prisoners, including killers, cheated deportation last year by claiming they have a human right to a ‘family life’ in Britain… (dailymail.co.uk)

Basic legal standards such as; Corpus delicti (proof a crime has actually been committed) and Ei incumbit probatio qui dicit, non qui negat (everyone is innocent until proven guilty) are fundamental elements within our legal system and ones we expect as a human right. In addition we have semper necessitas probandi incumbit ei qui agit (the burden of proof) which often requires evidence of mens rea (mental intention) and Actus reus (a guilty act) has actually taken place. In short, the ultimate effectiveness of our legislation will always be subject to the application of such legalese and definitions. Like many, I could challenge the actual ethics behind much of the application and interpretation, Ad infinitum.

Many Lawyers will however accept instruction simply to enhance their personal career and credibility, although I feel sure most would (understandably) offer argument to the contrary, and dress up their mitigation with excuses of a legal, logical and ethical nature. Ian Wise QC, the Barrister representing the appellant in this case, will undoubtedly have a contented and warm feeling about the resulting outcome of a ‘job well done’. He will be proud of yet another success resulting from his expertly executed delivery on behalf a client. He has gained another notch for his CV, along with a further unique selling point for the abilities and expertise of Doughty Street Chambers, an extensive legal team “at the heart of human rights”.

As an aside: it is interesting that, in non of the reports I’ve read, is there any mention of how this appeal and its undoubted considerable costs were funded? Given the apparent social/financial status of the appellant, Legal Aid via the taxpayer would be my expectation. Another factor that tends to create intense heat under the collars of many but one I won’t even attempt to address here!

After spending thirty years of my life involved in the application of the laws of this land, it strikes me that irrespective of any ideological (or legal) arguments, there are individuals within the legal profession who play the system. The ultimate fallout from their courtroom games and posturing only results in public disgust, that and an over all mistrust of our legal process. A system that constantly and consistently appears to be putting the offender first and failing the victim(s).

Unfortunately and irrespective of the legal team’s raison d’être in this case, it appears that once again, limited consideration has been given to the resulting impacts upon our society. However; is it realistically possible to make those types of consideration, without them having a negative impact upon the individual?

Without wishing to cast aspersions about Mr Ian Wise QC and his personal integrity, many Lawyers, Queen’s Counsel and members of the Judiciary should remember; their ‘professionalism’ can also undermine the credibility of our legal system, just as much as it enhances it. The unwanted consequence is a greater public mistrust of a system by those it is designed to serve and protect.

So please M’Lud, question how personal ethics and drivers fit into our legal system, before counting you’re not inconsiderable salary and always remember that like offenders, victims also have human rights!

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