Earlier this month, the justice secretary Chris Grayling announced that a future Conservative government would repeal the Human Rights Act 1998 and replace it with a British Bill of Rights. According to Grayling, if his plans aren’t sanctioned by the Council of Europe, Britain will go a step further, and withdraw completely from the European Convention on Human Rights.
The UK was instrumental in drafting the European Convention on Human Rights - which was introduced in the aftermath of the Second World War - and became the first nation to ratify the treaty in 1951. The European Convention was incorporated into UK law in 1998 in the Human Rights Act, enabling British citizens to enforce the rights contained within it.
Let’s break down what Grayling’s words actually mean: withdrawing from the protections for humans, that we were a part of creating, to avoid a repeat of the horrors of the Second World War. This will diminish the rights of everyone in Britain but in particular those who are vulnerable - and that means children.
Below are a couple of areas where we think the proposals could really impact vulnerable young people.
Right to a fair trial?
Article 6 of the European Convention guarantees the right to a fair trial. In 2000, the European Court of Human Rights found that trying 11 year olds in the Crown Court with lawyers in wigs and gowns, where the children had no access to their lawyer and no adaptations to their special needs - such as plain English or regular breaks - breached their right to a fair trial. The European Court said that the UK had a duty to enable children to effectively participate in their cases and to reduce feelings of intimidation and inhibition to a minimum.
Similarly, in a later case in 2005 the European Court of Human Rights warned the UK against the practice of trying children in adult courts. The European Court said another 11 year old boy did not have a fair trial because he did not understand what was going on in Court.
It has always seemed to me that pitting children against some of the best trained and skilled QCs in the country, when giving evidence, is the modern day equivalent to being in the lion’s den. Surely this will never result in a child being able to explain their version of events, fairly, to a jury.
The decisions of the European Court of Human Rights led to the introduction of rules in our criminal justice system, which outline practical measures that can be taken to reduce a child defendant’s feelings of intimidation and inhibition in adult courts. Such measures can include the removal of wigs and gowns; sitting the defendant out of the dock – next to his family, social worker or lawyer, for example; having regular breaks; clearing the public gallery; and using concise and simple language throughout the trial.
None of these measures will fully alleviate the trauma of being tried in an adult court for a child, but they go some way towards ensuring that they are able to effectively participate in the court process, and therefore are able“not only to be present but also to hear and follow the proceedings” – which is what the European Court recommended.
Almost ten years ago former law lord, Lord Steyn said that “ignoring the special position of children in the criminal justice system is not acceptable in the modern civil society”. But withdrawal from the European Convention would demolish the fundamental right to a fair trial and put vulnerable children back into adult Crown Courts, ignoring that special position in the criminal justice system.
Best interests of the child?
The UK’s withdrawal from the European Convention would also have a substantial impact on the specific protections for children enshrined in the UN Convention on the Rights of the Child (UNCRC).
The UN Convention on the Rights of the Child is the most widely ratified convention in the world. It was ratified in the UK in December 1991.
Article 3(1) states that the best interests of the child shall be a primary consideration in any proceedings before the Court. Recently the Courts have been arguing about whether they only have to apply the ‘best interests principle’ if a European Convention right is involved.
An example is the recent case of JC and RT v Central Criminal Court, in which Just for Kids Law intervened. This case relates to anonymity protection of children in court.
JC and RT are two former child defendants, who were given community sentences for offences committed when they were 16 and 17. The judge ruled that their identity would be protected during the proceedings. When their case concluded and they were no longer in the criminal justice system, the BBC and a raft of news groups the media said that they should be able to publish their names once they turned 18. This was despite the fact that the aims of the youth justice system, unlike the adult justice system, are to rehabilitate and reintegrate.
Under Article 8 of the European Convention, lawyers for the boys are able to argue their right to privacy and ask at the same time for their best interests to be a primary consideration under the UN Convention on the Rights of the Child. It is argued that publishing the names of those who were children during court proceedings allows the press to give an additional punishment to that imposed by the criminal courts. A cursory internet search, for example, would provide any future employer with information that would make it less likely for them to employ these boys or, as has happened with other families, once identified they are persecuted and have to move from their homes and schools.
Withdrawal from the European Convention would mean that the boys might not have a right to privacy.
If the Conservatives’ plans to withdraw from the European Convention are implemented, the duty to act in the best interests of the child may well be eroded. In our line of work, this could be devastating for children, especially when coupled with the cuts to legal aid - which are making it more difficult for children to gain access to justice.
According to Nelson Mandela, “There can be no keener revelation of a society's soul than the way in which it treats its children.” A withdrawal from the European Convention of Human Rights would, I believe, reveal a dark side of our soul.