Human Rights Lexicon: Human Rights in Criminal Justice

In this first contribution to our St. Patrick’s Day blog event, the Human Rights Lexicon, Dr Liz Campbell–a regular contributor to HRinI–considers Human Rights in Criminal Justice

The prevailing attitude in the political sphere is that the influence of human rights in the Irish justice process is a negative one, resulting in a system which is focused unjustifiably on due process rights, and pays scant regard to the imperatives of crime control. The criminal process is seen as excessively concerned with the rights and liberties of the suspect or accused, while disregarding the harm caused to the community and the victim by criminal acts. This is believed to result in a justice system which is biased disproportionately towards the individual accused, and which stymies effective crime control, by circumscribing the powers of the State, and which denigrates the victim and wider society.

Political discourse indicates a desire to move the focus from the individual accused to incorporate the interests of the community into the system. Indeed, the community is often referred to as an entity with rights of its own. Willie O’Dea, when Minister of State at the Department of Justice, stated that “the very purpose of police powers is to vindicate the human rights of victims or potential victims of crime and the wider rights of society” and spoke of the balance which must be achieved between these rights (Department of Justice, Equality and Law Reform, “A Human Rights Approach to Policing”, Irish Council for Civil Liberties Seminar, 4 March 2003). In addition, Michael McDowell, as Minister for Justice, emphasised the “legitimate concern” that “the rights of society to be protected take second place in the quest to ensure fairness to the suspect”, and said that the imbalance in favour of the accused must be addressed (Dáil Debates, 15 February 2005, Vol.597, Col.127). In addition to such rhetoric, trends in criminal justice policy indicate that the rights of the community are seen as having parity, or as being superior, to the rights of the individual. The restriction of the right to bail as a result of a constitutional amendment in 1996 was based on the perceived need for increased public protection. Moreover, the introduction of behaviour orders under Parts 11 and 13 of the Criminal Justice Act 2006 was legitimated by the need to protect the public from anti-social actions. Equating the demands of the community with a nebulous notion of group rights is dangerous as it may conflate societal whims with justiciable and enforceable privileges or duties. Moreover, any trade-off between the “rights” of the community and those of the individual holds the risk of subsuming the latter by majoritarian imperatives. Furthermore, the attitude articulated by government ministers is problematic as it sees the interests of the community and those of the criminal suspect as fundamentally at odds. There exists a pervasive assumption that the community’s interests are advanced by reducing the rights of defendants and suspects and by intensifying the repressiveness of the criminal process. This notion presumes that civil liberties, such as the freedom from arbitrary searches and detention, the right to fair treatment in custody, and the right to bail, are of little significance to Irish citizens. However, the right to live in a society with circumscribed police powers is a core feature of any liberal democratic society, and must not be overshadowed by the desire to restrict crime.

A further criticism of the human rights paradigm in the criminal justice system concerns the sidelining of the victim. Under the traditional modernist conception of criminal justice, the individual victim was of little significance other than as a witness to a crime and as the party whose complaint triggered state action. Recognition of the rights of the victim has heralded both positive and negative developments.  The Victim Support agency was established in 1985, followed by the Commission for the Support of Victims of Crime (2005) and the separate Victims of Crime Office (2008), as outlined by Yvonne previously. Victim impact statements (VIS) are statutorily entrenched in section 5 of the Criminal Justice Act 1993, and this will be replaced by Part 2 of the Criminal Procedure Bill 2009 which will extend the right of allocution to the family members of homicide victims. The presentation of a VIS is may be cathartic, and it facilitates the expression of the harm or loss caused by the crime. It further allows the victim or his family to play an active role in the criminal process rather than feeling like a mere passive witness. However, a worrisome aspect is the possibility for emotivism to encroach on the sentencing decision. Moreover, the victim in public policy discourse is presented as a representative character, which may contribute to increased fear of crime. No longer does the public interest encapsulate the fate of the accused or offender, but rather is equated to that of the victim, given the portrayal of the victim as an emblematic being whose experience could one day be our own. Thus, any concern for the rights of the accused is regarded as detracting from the appropriate measure of respect for victims; in this zero-sum game, the offender’s gain is the victim’s loss. Finally, the victim’s interests may be invoked to support punitive measures or for lobbying purposes.

While there is certainly potential to improve the treatment of the victim in the criminal process and to recognise the community’s interests, this cannot be at the expense of due process rights which were introduced to offset the imbalance of power between the might of the state and the individual defendant. Populist discourse should not justify the sidelining of human rights in criminal justice.