Analysis of the Human Rights Act, 1998
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Published: Tue, 02 Jan 2018
Human Rights Law
‘Despite the Human Rights Act 1998, the courts have failed appropriately to limit the scope for the exercise of breach of the peace powers.’
The Human Rights Act 1998 received royal assent on November 9, 1998 and came into force on October 2, 2000. The objective of said Act was to harmonize the domestic law of the United Kingdom with the European Convention on Human Rights. To reaffirm the commitment of the UK to human rights and civil liberties, it is now possible under the said Act to file a claim for violation of the ECHR without going to the European Court of Human Rights in Strasbourg. Says Weinstein:
This ability to transcend national law, and to compel revision of such law to comport with rights guaranteed by the European Convention in a broad range of areas, most often within the exclusive purview of national and local courts, is of historic note. Generally, nation states have been the final arbiters of most issues affecting their citizenry and within their borders. By treaty, the signatory nations of Europe have granted the ECHR binding authority to decide cases affecting their citizenry and other persons subject to their authority.
In instances where state law is found inconsistent with an ECHR judgment, the nation at issue is obliged to amend its national law to comport with the ECHR decision. These cases illustrate the concept of what is increasingly being referred to as an evolving European supranational identity. The ECHR grants jurisdiction to any individual, non-governmental organization, or group claiming be a victim of a violation of the European Convention by a ECHR signatory nation, and to bring cases before it, as does, in applicable cases, the European Court of Justice (the “ECJ”), the court of the European Union, based in Luxembourg.
Equally important, it prohibits any public body from behaving in a manner that is incompatible with any of the rights guaranteed under the ECHR.
The Human Rights Act has gone a long way in limiting arbitrary actions from public bodies, in particular, police officers. It cannot be denied, however, that the laws on “breach of the peace” grant have historically been so vast in scope that in some occasions, human rights violations arise. The definition of “breach of the peace” (also known as breach of the Queen’s peace) has been discussed in the Court of Appeal decision of Howell, where it was stated as follows:
We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.
It used to be that the prospect of violence alone would not be enough to be considered a “breach of the peace”, as in the comment of Farqhuarson LJ that “The act which puts someone in fear of violence taking place entitles a police officer…to detain the actor but it is not a breach of the peace, for the violence has not yet occurred.” There has been scant support for this view, such that in the present time, “breach of the peace” also embraces “behaviour likely to cause a violent reaction”, even if such behaviour is not of itself violent.
The policy of the law has been recently discussed in the case of Humberside Police v. McQuade, where it was held that: “the policy of the law relating to arrest for breach of the peace is plain enough. Its purpose is to deal with emergencies. The power of arrest may be exercised without a warrant and belongs to the ordinary citizen as much as to the constable.”
In a handful of cases, the European Court of Human Rights has found that there is no contradiction between the concept and the Human Rights act of 1998. The most cited case is the case of McLeod v. United Kingdom , where the Court held as follows:
“The concept of breach of the peace has been clarified by the English courts over the last two decades, to the extent that it is now sufficiently established that a breach of the peace is committed only when an individual causes harm, or appears likely to cause harm, to persons or property, or acts in a manner the natural consequence of which would be to provoke violence in others.”
There are several powers that underlie a “breach of the peace”. The first power is the power of arrest. In Howell the conditions for making an arrest on this basis were laid down, to wit –
“Where: (1) a breach of the peace is committed in the presence of a person making the arrest or (2) the arrestor believes that such a breach will be committed in the immediate future by the person arrested although he has not yet committed any breach or (3) where a breach has been committed and it is reasonably believed that a renewal of it is threatened.”
Another power is the power to enter premises. The leading case for this is the case of Thomas v. Sawkins which involved a meeting to protest the Inciting to Disaffection Bill. Wary that seditious and inflammatory statements would be made, the policemen stormed in and attended the meeting, even though they were aware that they were unwelcome. In a unanimous decision, the Court ruled that the presence of the police officers was lawful. Stone explains why this is an alarming prospect:
A point of uncertainty, however, arose from the fact that the meeting took place on private premises. Did the power of entry recognised in the case only apply to meetings to which the public were invited, or are the police entitled to enter any premises on which a breach of the peace is occurring or is likely to occur? The judges in Thomas v Sawkins appeared to attach importance to the fact that they were dealing with a public meeting, but the general law of trespass makes no distinction of this kind. If those attending a public meeting on private premises do so on the basis of a licence from the occupier, then that licence may be withdrawn, from the police as much as anyone else. If the police have the power to override the withdrawal of a licence, then there seems no reason why that power should not exist on all occasions. The result is that Thomas v Sawkins had the effect of giving the police a power to enter any premises to prevent or deal with a breach of the peace.
Another power police officers have is the power to control/restrict/compel an individual’s movement. The seminal case for this is the case of Moss v McLachlan , which involved militant striking miners prevented by policemen from joining the ranks of more “moderate” miners. The Court upheld the actions of the law enforcement agents, saying as follows:
“If the police feared that a convoy of cars travelling towards a working coal field bearing banners and broadcasting, by sight or sound, hostility or threats towards working miners might cause a violent episode, they would be justified in halting the convoy to enquire into its destination and purpose. If, on stopping the vehicles, the police were satisfied that there was a real possibility of the occupants causing a breach of the peace one-and-a-half miles away, a journey of less than five minutes by car, then in our judgment it would be their duty to prevent the convoy from proceeding further and they have the power to do so.”
There are many human rights issues that are affected by an overly-broad interpretation of “breach of the peace.” The first principle that they may invoke is the principle regarding Freedom of Thought, Conscience and Religion which is enshrined in Article 9. There is no dearth of cases that they may cite in order to support their position. For example, in the case of Arrowsmith v. United Kingdom, it was stated this right refers to acts that are an expression of a religion or belief. This right was raised before the ECHR for a variety of reasons, such as employment and prisoners’ rights. While certainly, the courts have taken quite a restrictive approach in applying the provision and granting relief under it, it has been restrictive when the acts sought to be justified are acts that are patently illegal and morally wrong, such as assisted suicide or the distribution of cannabis. These acts cannot be compared to the simple act of dancing or organizing. The dangers of cannabis and euthanasia simply cannot compare to the conjectured danger in the case at hand, and thus, the latter should fall under the ambit of freedom of religion.
There is also the freedom of assembly and association argument (Article 11) that may be raised. Aside from imposing a negative obligation on law enforcement agents not trample on protected rights, they must secure the effective enjoyment of these rights. In the case of Plattform ‘Arzte fur das Leben v. Austria the ECHR held that “Genuine effective freedom of peaceful assembly cannot be reduced to a mere duty on the part of the state not to interfere… Article 11 sometimes requires positive measures to be taken, even in the sphere of relations between individuals, if need be.”
Freedom of Expression which may be found in Article 10, can likewise be cited. There can be no doubt that freedom of expression is of paramount importance. While the right to free speech is a crystallized principle that has been place almost since the beginning of time, enjoying a cherished position in the bill of rights of virtually all civilized legal systems, the interpretation of what constitutes free and protected speech still has yet to be perfectly refined. This provision has been invoked many times over in the course of history, whether within the European Union or outside, successfully and unsuccessfully; and Courts have had many opportunities to set standards and devise guidelines to determine if the speech in question should be protected or not. It is important to note that Article 10 protects not merely the substance of the idea but also the form that they are conveyed. This was the ruling in the case of Oberschlick v. Austria and it could be applied here. The form of the expression should also be considered protected speech. This is bolstered by the fact that in the case of Stevens v. United Kingdom, the concept of expression covers even “actions”.
It becomes more difficult when the right to free speech competes with another right, in this case, the right of the public to order, or to put it more classically, the right of the Queen to her peace. In “easy” cases, all that should be done is look through jurisprudence until one finds the applicable case with similar facts. In “hard” cases with novel facts, the role of the judge becomes infinitely more difficult. The boundaries are ever-shifting; and internally, the judge will be trying not only to apply the law, but to subject the text or speech in question to her own subjective inquiry in order to determine the intent of the message-bearer and what the material was trying to say. Social and political values inevitably come to the fore. To quote legal writer Thomas Streeter, “It is in the character of language, in other words, that a judge will never be able to look at the text of the Bill of Rights and legal precedents to decide whether or not flag burning is protected by the First Amendment; he will always in one way or another be forced to make a choice about whether or not he thinks it should be protected, and will always be faced with the possibility that a reasonable person could plausibly disagree.”
What distinguishes the area on free speech from other “legally-indeterminate” areas is that it is inextricably intertwined with and largely dependent on language which, as many eminent linguists have said, is arbitrary in the sense that meanings cannot be derived from anything logically-inherent in the words. These meanings are merely “assigned meanings” born of the collective experiences of people in a community and this system of interpretation is never static. As stated by Streeter, “Aside from language in general and perhaps some very deep-level aspects of syntax, there is very little that is universal, neutral, or mechanical about human languages.”
Another issue is the right to due process. Legal systems in the civilized world – whether in civil or common law jurisdictions — have, at least in theory, given primacy to the rights of the accused, understanding that ambiguity should be resolved in his or her favor. This, however, does not mean that one must let down his or her vigilance and stop guarding against possible infringement of constitutional guarantees by overzealous judges, particularly at a time when human rights advocacy for the accused has been made unpopular by the rising rate of crime.
It used to be that the primacy of the State is the core principle of the international legal regime as it is traditionally known. This, however, has been challenged by the alarming rise of state-sponsored human rights violations that has prodded the community of nations to recognize that its more pressing duty is to protect the individual from systemic and institutional atrocity, even at the expense of its legal fictions. To quote from Hersch Lauterpacht, in his article International Law and Human Rights,
An international legal system which aims at effectively safeguarding human freedom in all its aspects is no longer an abstraction. It is as real as man’s interest in the guarantee and the preservation of his inalienable rights as a rational and moral being. International law, which has excelled in punctilious insistence on the respect owed by one sovereign State to another, henceforth acknowledges the sovereignty of man. For fundamental human rights are superior to the law of the sovereign State.
This is the raison d’etre behind the International Convention on Civil and Political Rights which entered into force in 1966 and the Human Rights Act of 1998. State parties were cognizant of the need to protect civil and political rights of citizens from possible encroachment by the state. The ICCPR explicitly declares: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” It is undeniable that this includes protection of citizens from agents of the state such as members of the police force.
And yet, we see how police officers routinely violate the human rights of those they apprehend. The implicit message is that these are criminals anyway – thugs, petty thieves, gangsters, punks, drug addicts, alcoholics – and they are doing society a favor by treating them brusquely. An oft-heard justification is that you cannot treat hardened criminals with kid gloves or you will be perpetrating crime even further. However, it cannot be gainsaid that the legal restrictions on evidence make police brutality inimical to law enforcement, rather than the opposite. Given the propensity of law enforcement agents to manhandle an accused or use unnecessary force to restrain and subdue him, they should be taught that such behavior only bolsters crime instead of eliminating it. First: it emboldens criminals to seek revenge and go on “vendetta killings” and perpetuates a vicious cycle of crime that exacerbates the situation even further. Second: evidence procured by virtue of such rough manhandling will not be admissible in evidence and the criminal they seek to put behind bars will be allowed to go back to the streets.
Most importantly, however, even hardened criminals are covered by the human rights guarantees in the Constitution and in human rights conventions. Human rights are inalienable and imprescriptible, and they apply to everyone.
But perhaps the most recent caselaw on breach of the peace with respect to the concept of human rights is the recently concluded Fairford Coach Action where the police detained 120 protesters on their way to an anti-war demonstration in Gloucestershire. The Public Order and Criminal Justice Act was used by the policemen. The Law Lords eventually ruled in favour of the protesters. In 2004, it made this crucial point:
The rights to freedom of expression, and assembly and association, which are protected by Articles 10 and 11 of the ECHR respectively, are of the greatest importance to the proper functioning of any democracy. Any intrusion upon the rights, either by the developing common law or by the intervention of statute law, has to be jealously scrutinised.
In conclusion, while certainly there are significant inroads brought about by the Human Rights Act of 1998, these still must be reckoned with the laws on breach of the peace. It is the duty of the courts and of every citizen to be vigilant against encroachments by police officers. The law is there to provide refuge, but education and awareness are primary.
Hoffman, D. & Rowe, J. (2003). Human Rights in the UK: An Introduction to the Human Rights Act 1998. London: Pearson Longman.
Lauterpacht, Hersch. 1950. International Law and Human Rights. Connecticut: Archon Books.
Stone, R. (2001) Breach of the Peace: The Case for Abolition. 2 Web. JCLI.
Streeter, T. (1995) Some Thoughts on Free Speech, Language and the Rule of Law. In Jensen, R. and Allen, D. (Eds.) Freeing the First Amendment: Critical Perspectives on Freedom of Expression.31-53. New York University Press.
Weinstein, B. “Recent Decisions from the European Court of Human Rights.” American Society of International Law. May 2000. visited 21 January 2007. http://www.asil.org/insights/insigh45.htm
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