The Human Rights Act: A Charter For Criminals?

Article by Mavelyn Vidal1

The Human Rights Act 1998:

"An Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights; to make provision with respect to holders of certain judicial offices who become judges of the European Court of Human Rights; and for connected purposes."

So reads the preamble to the Act of 1998. Pretty innocuous stuff really. So why has this Act provoked so many negative headlines? For examples: "Home Secretary Theresa May wants Human Rights Act axed"2, "Europe's War on British Justice."3

Very briefly, the European Convention on Human Rights and Fundamental Freedoms ("ECHR") is an international treaty, signed in 1950 by the then members of the Council of Europe4. It comprises a body of basic human rights ("Convention rights", see section 1 of Human Rights Act5 ). It may surprise the present Home Secretary to know that the United Kingdom was an original signatory to the treaty and ratified it in 1951.

Foreign criminals and the Human Rights Act

The UK Borders Act 2007 provides for the automatic deportation of foreign criminals, in the circumstances listed in section 32 (when they have committed a "serious offence", defined as a crime for which the sentence imposed is "a period of imprisonment of at least 12 months.") The exceptions to this provision are contained in section 33. A person seeking to resist deportation from the UK may succeed, in an appeal, if s/he can bring himself within an exception in section 33. Section 33 provides " (2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach—

(a) a person's Convention rights".

Particularly relevant, and controversial, in a deportation context, is the Convention right contained in article 8 of the ECHR. This provides that:

"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

However, in order to succeed, in resisting removal/deportation, an appellant will have had to prove, to the standard of the balance of probabilities...

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