Wednesday, 8 June 2011

Don't blame the game, blame the players

In 1998 the ECHR (European Convention on Human Rights) implemented the Human Rights Act (officially assented in the UK in 2000) which outlaws any action by a group or individuals which would breach the basic rights of a human being.

HRA has come under fire in the UK in recent times, with the current Conservative-led coalition Government threatening to replace the act in the UK with a British Bill of Rights during the previous election campaign. The reality is however, as we are part of the European Union, we have to abide by their laws over and above our own, which makes this pledge impossible to implement without renegotiating the terms of the Union.

When I was a kid, in the early nineties, my mother's friend's boyfriend was murdered. His ex and her new boyfriend, went to his house one night with an axe, chopped down the door and cut him to pieces. Apparently, if she couldn't have him, no-one could - a little mental, but that part of it at least rationalises her actions so that the average Joe could understand.

They were both convicted under Scots criminal law, serving a few years each under the charge of 'Culpable Homicide'. Culpable Homicide is essentially, "Yes I did it, but I didn't mean it" in Scots law and is essentially the lowest possible conviction for actively taking the life of another. Lower than manslaughter, so a kind of third-degree murder.

Friends and family were appalled at the sentencing. It's only as I have grown older, did I realise why they were treated so leniently (this was before HRA, just in case you're following). They claimed they were off their heads, they didn't intend to kill and they wouldn't normally do such a thing. From a defence perspective, these are easy things to prove. They can prove they were drugged up, and they can prove (through lack of criminal activity) that this was out of character. Whether they went their intentionally to kill is where the skill of the defence team comes in. From the prosecution's perspective, they can't prove that if they had been of sound mind, they would have done this, and so so bargaining takes place and they settle for what can definitely be proven and the prosecution then accept to go for this charge. Thus the outcome was culpable homicide. They did it after all, so not-guilty was going to be nigh on impossible for the defence to prove.

You see, in the UK we have such a powerful and advanced legal structure. We don't deal with emotions and maybees. We deal with fact. We also have one of the best education systems in the world, where the most intelligent people can easily afford to be educated to the highest level in law, and subsequently learn from the best. We're not the only country in the world where this is the case, but then these laws aren't just for our benefit.

The HRA set about, giving a certain duty of care to subjects within the Union. That in itself was commendable, and we saw across the Union working conditions and the general treatment of others improve greatly during the last 13 years.

Unfortunately, the advanced legal system and HRA mixed together has led to situations where people who have criminally broken into a property and hurt themselves, successfully sue the robbed party. Recently, there was a case where a man was allowed to father a child from behind bars, as fathering a child was deemed a basic human right. Is it the HRA's fault that this was allowed to occur in Britain? I don't think it is necessarily. The HRA has done many good things, and as a principle is something we should be proud of. Unfortunately, the legal system is so good in this system it's easy, in the case of the father-prisoner to point to some basic right which is normally afforded to people, and suggest that HRA protects this right.

But remember, these rights are now afforded to countries like Serbia and Romania. Countries, that without this legal protection, might just find their citizens taken advantage of by working 80 hours a day or being discriminated against in some fashion. For that, the HRA is an admirable piece of law, but it is also inconsistent with an advanced legal system like the UK. When rules are written, our lawyers will interpret both sides of those rules and what they mean, and then argue their case that HRA reflects what they want. Ripping it up and replacing it with a British Bill of Rights won't get round that, but it would give us the ability to fine tune these laws to our requirements. Do you trust our government not to take away our rights when writing these up? Well, that's a different topic entirely, but it's probably the lesser of two evils.

Leaving the EU would, as the opposition say, be the only way to achieve this. I don't reckon so - If there were rumblings of this, countries with similar advanced legal systems like France or Germany might just fancy a change too, but it would take a strong UK Government to call the bluff of Europe on this matter first.

No comments: