Riot prosecutions raise questions over due process and human rights

Ben Scicluna on Flickr Creative Commons BY-NC-ND

The handling of legal cases from the UK riots that took place last week has caused a great deal of controversy. Lawyers in the UK have posed some serious questions about the way that judges and the Crown Prosecution Service (CPS) have dealt with defendants, with major concerns around due process.

The vast majority of the defendants will be on legal aid, given that the Legal Services Commission has been underfunded for the last decade this massive influx of cases will put even more pressure on a system already on the brink of collapse. With such large numbers of defendants, the duty solicitor system has been overrun. Many defendants have received only a phonecall from a duty solicitor. Lawyers have expressed concern over the waiting time to see a duty solicitor potentially leading to detainees opting not to be represented in order to go home sooner.

Another area of concern is around the pressure on the CPS to deal with these defendants as quickly as possible leading to rushed decisions to charge, rather than bail pending investigation. This leads on to questions around evidence gathering and disclosure. Given that these cases are being dealt with so quickly, and the thousands of hours of CCTV footage, hundreds of witness reports and other evidence sources the police need to go through the reliability of the evidence has come into question. Much of the evidence will have come from police who were on the scene, however given the situation the police will not have been able to make proper detailed notes of the incidents until much later. As has been seen in the past with the Ian Tomlinson case, this can lead to discrepancies in police accounts. With courts operating around the clock to process defendants and the pressure on the CPS to charge as quickly as possible, the ability of solicitors to properly advise defendants could be hampered. Due to the speed at which cases are being sent to court, evidential disclosure from the CPS prior to court appearance may not have been sufficient in some cases to allow defence solicitors to properly advise their clients.

The disregarding of sentencing guidelines by magistrates, as reported by The Guardian, raises concern that solicitors will bring cases to appeal, further prolonging these cases and potentially leading to cases being overturned or sentences reduced. This also raises questions of human rights. Courts are charged with delivering justice, proportionate sentences for crimes. If they are allowed to throw this out of the window based on public perception of a crime this is dangerously close to “mob justice”. That councils are evicting entire families because of the acts of a single member amounts to collective punishment, historically the preserve of an occupying army. During armed conflict, collective punishment is considered a war crime and is a direct breech of the Fourth Geneva Convention governing the protection of civilians in times of war.

“No protected person may be punished for an offense he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.”

– Article 33, Fourth Geneva Convention.

Whilst we aren’t living in a military occupation in the UK one would hope that the same applies to citizens in times of peace. Precedent argues that it could also amount to a breach of the European Convention on Human Rights.

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.

– Article 8, ECHR

I have never really bought the “we’re living in a police-state” line touted by many radical leftists but with international conventions and domestic law so readily thrown aside to placate Daily Mail readers and new and potentially more dangerous powers for police on the horizon, I find myself wondering what lies ahead for the UK.

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