Human rights and access to justice

Our second guest blog is by Open University law student and Open University Law Society Officer for Scotland, Lidia Dancu.

If you would be interesting in contributing a guest blog, please contact us at open-justice@open.ac.uk

Human Rights Day is celebrated each year on 10 December. It marks the day on which, in 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR) and it is observed in diverse ways around the world.

This year, JUSTICE, the all-party law reform and human rights organisation working to strengthen the justice system in the United Kingdom, celebrated with a lecture on fundamental rights and the prosecution of crime, held at the Faculty of Advocates in Edinburgh, Scotland. The Lord Advocate, James Wolffe QC, gave a lecture focusing on placing the prosecution of crime in the context of a commitment to fundamental rights.

The Human Rights lecture was introduced and chaired by the Honourable Lady Scott, Judge of the Supreme Court and founder member of JUSTICE Scotland. The evening began in a jovial manner, with Lady Scott commenting on the impressive numbers making up the audience in the rather impressive quarters of the Advocates Library as being somewhat larger than the Lord Advocate’s audience of eleven at the Supreme Court the previous day, and with a reminder of Scotland’s legislators’ understanding and commitment to Human Rights issues in respect of both the rights of victims, as well as those of the accused.

The Lord Advocate embarked on his discourse by citing the vision at the heart of JUSTICE, that of a ‘fair, accessible and efficient legal processes, in which the individual’s rights are protected, and which reflects the country’s international reputation for upholding and promoting the rule of law. He went on to speak of the significance of an independent and objective justiciary delivering fair, efficient and accessible services through appropriate mechanisms and the importance in such a pursuit of implementing strong safeguards against miscarriages of justice. He referred to the influential cases of Holland (1) and Sinclair (2) in relation to defendant’s right to a fair trial, as set out in Article 6 of the European Convention on Human Rights (ECHR) and went on to consider the seminal case of Cadder (3), which ended detention without access to a lawyer in Scotland, bringing the jurisdiction in line with the rest of the UK. A somewhat ironic state of affairs, given that rights to representation by counsel existed in Scotland some 200 years before they did in England and the rest of the UK.

Indeed, the very office of Her Majesty’s Advocate as public prosecutor, the Lord Advocate reminded the audience, was formalised by an Act of Parliament in 1587 and his responsibility remains that of prosecuting crime in the public interest, not as an agent of the victim, and as such, the imperative is to act as an independent and fair actor in the legal process. Prosecutors, he suggested, are agents of change in an overall legal machinery which must be robust, forensic, objective and independent and which respects the dignity of both the victims of crime and that of the accused.

In keeping with the current focus on rights, the Lord Advocate went on to outline the importance of respecting and promoting rights and States’ responsibilities to carry out the positive obligations imposed by treaties and conventions, most pertinently those established by the ECHR. If the ECHR leaves it to the States to implement these rights, the obligation does not terminate there, but extends to a duty of putting in place appropriate law enforcement provisions under Articles 2 and 3 and where serious breaches have taken place, under Article 8. To illustrate the point, given that the evening also marked the end of 60 days of activism against gender-based violence, the cases of M.C. v Bulgaria (4), V.K. v Bulgaria (5) and Opuz v. Turkey (6) were ample illustration of the findings of the Strasbourg Court that the state has positive obligations to protect victims from any form of violence against women, by redefining the meaning of ‘private matters’, whether these centred on issues of non-consent or domestic violence.

Speaking on domestic violence prosecution in Scotland, the Lord Advocate mentioned the relatively high rate of 80% of domestic abuse cases resulting in a conviction following trial. Attainment of high conviction rates, he stressed, is through victims coming forward and giving proper evidence, but it was the public prosecution’s duty to engage with victims, support and enable them. In a legal order suffering from systemic problems (complex diaries and convoluted diets), managing vulnerable victims is a particular complex challenge.

The preamble to the UDHR acknowledges the imperative to recognise the inherent dignity and the equal and inalienable rights of all members of the human family, as the foundation of freedom, justice and peace in the world. In a society where guilt has to be proven in order to gain punishment, the accused, too has fundamental rights and prosecutions must be carried out by the state with rigour, fairness and independence (7). A vigorous and independent legal process is essential to the rule of law and it is at this significant moment of reform of the legal justice system in Scotland that debate on reconciliation of rights between victim and the accused must not be abandoned.

The evening was brought to a close with a few short but passionate remarks provided by David Ogg QC, Advocate and Chair of JUSTICE Scotland, who reminded the gathering of the importance of access to justice, where those in most need of rights often have the least capacity to obtain them. The uptake of Cadder rights, he informed us, remains at an outrageous 25% low and more research is desperately needed in order to ascertain the various reasons why suspects waive their right to legal advice. Lord Eassie (8) has been appointed by JUSTICE to chair its first working party in Scotland which will examine the legal advice given to suspects in police custody. This is matter that Justice has been at the heart of already, intervening in the Cadder case, giving evidence to Parliament, which affected the changes in the Criminal Justice (Scotland) Act 2016. The significant chasm between rights in law and rights taken up in practice and a lack of understanding of its causal reasons has led to the need to review current practice and establish the necessary procedural changes to move proper access to justice beyond theory and ensure it is also effective in practice.

Having conventions on human rights is not enough, David Ogg reminded the audience, the current need is to remember our empathy towards our fellow human beings. This allows us to understand the meaning of pain and discrimination and only by doing so will we be able to re-mould the legal order into one which is autonomous and universally respects the human family.

1. Holland v HM Advocate [2005] UKPC D1, 2005 1 SC (PC) 3
2. Sinclair v HM Advocate [2005] UKPC D2, 2005 1 SC (PC) 28
3. Cadder v HM Advocate [2010] UKSC 43
4. M.C. v Bulgaria (Case 39272/98) [2003] ECHR 646
5. V.K. v Bulgaria. Committee on the Elimination of Discrimination against Women (CEDAW/C/49/D/20/2008) 2011
6. Opuz v. Turkey (Case 33401/02) [2009] ECHR 870
7. Art. 6 ECHR.
8. Ronald David Mackay, Lord Eassie is judge of the UK’s Supreme Courts, sitting in the Inner House of the Court of Sessions.