Not Saussure

January 5, 2007

Wanted posters and human rights — a myth in the making?

Filed under: civil liberties, Law, Spin — notsaussure @ 8:58 pm

The Daily Telegraph reports

The “human rights” of foreign ex-prisoners on the run from police are being put before public safety. Detectives across the country are refusing to issue “wanted” posters for the missing criminals because they do not want to breach human rights laws. Forces said that the offenders had a right to privacy and might sue for defamation if their names and photographs were released.

These, it transpires when you read further down the article, are the chaps Charles Clarke mislaid;

In his final Commons appearance before he was sacked, Mr Clarke said that police and immigration officers were engaged in “very intensive work” to find and deport 38 serious offenders who were released from jail without being considered for deportation.

That is, they were released on licence in the normal way and the Home Office neglected to implement the trial judges’ recommendations that they be deported. The report goes on to tell us that

Police forces pointed to human rights legislation as the reason why names and photographs cannot be issued. They also said the on-the-run former prisoners were not sought as criminals, but instead as the perpetrators of immigration offences.

This is all very odd. Quite how one of these chaps would be able to seek damages for libel is beyond me, since the police would, presumably, have the perfect defence that whatever they’d said on the posters was completely true — that so-and-so had been convicted of whatever it was, sentenced to so many years, later released on licence and was now subject to administrative recall because he’d broken the terms of his licence. How does that defame anyone if it’s true?

Furthermore, as the ACPO Guidelines (pdf) make clear,

Article 8 of the Human Rights Act gives everyone the right to respect for his or her private and family life, home and correspondence, and publication of photographs could constitute a breach of this. The article does however allow the publication in accordance with law and as 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 public health or morals or for the protection of the rights and freedoms of others. (p 4)

Actually, to be strictly accurate, the HRA does no such thing; it just makes it easier to enforce rights that we’ve enjoyed under the European Convention on Human Rights for the last 50 years and which we would continue to enjoy were the HRA repealed, unless we also withdrew from the ECHR.

What’s happened, I think, is that the police forces have rather misread the ACPO Guidelines; these, of course, are written with suspected criminals in mind; that is, people who haven’t yet been convicted of anything. As the Guidelines say in their discussion of Releasing a ‘Wanted’ photograph,

The major consideration is whether the need to warn the public about a dangerous person outweighs the possibility of jeopardising any subsequent court hearing. Particular consideration should be given to the potential importance of identification evidence in the prosecution of the offender and the potential to undermine this, and consultation with legal staff and the CPS should be sought before any decision is made. (p 33)

They go on to say,

Practice is emerging among forces to publish photographs of wanted persons beyond those who pose a serious risk to the public, and may be considered where it is necessary to protect the life and physical well-being of the subject or of those with whom he or she may come into contact or to detect or prevent serious crime or disorder. In these cases it is necessary under the Human Rights Act to determine that publication is proportionate to the risk and/or that other more conventional methods have been exhausted.

Quite right, too. The last thing anyone wants is a prosecution to collapse because the accused can’t get a fair trial since his photo’s been plastered all over the place on wanted posters or because important eye-witness identification evidence gets ruled out because the witness can’t be sure (or the jury can’t be) that he’s identifying the defendant as the chap he saw fleeing the scene of the crime or if he only thinks that’s him because he’s seen all the wanted posters.

Under those circumstances, if the trial’s collapsed and the defendant it acquitted, then people probably would have to worry about defamation, but that can’t apply here. These warnings and qualifications apply, as I say, to people who’re completely innocent until a court says otherwise. That’s not the case with these former prisoners. And you can’t sue someone, as far as I know, for ‘infringing your human rights’; you’ve got to establish, first, that they’ve actually acted unlawfully in so doing, and that you’ve suffered some form of damage or loss as a result. That, I think, would be very difficult to establish in this case.

It’s either they’ve misunderstood or they’re trying to irritate John Reid (an entirely understandable motivation) by saying, perfectly reasonably, that these chaps are no more a threat than anyone else released on licence in the normal way and the police have got more important calls on their resources than trying to do the Immigration Service’s job for them.

Could be, of course, that this misunderstanding suits Dr Reid rather well. It’s not his fault that Charles Clarke let these chaps vanish on his watch; Dr Reid is doing all he can to find them and, as so often, finds himself frustrated in his efforts to protect us by both the the HRA, and judges who seek to uphold it when he’d rather they didn’t, thus demonstrating they ‘just don’t get it.

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  1. I don’t know if you saw the report of the Joint Committee on Human Rights last November that said, amongst other waspish things: “We very much welcome the Lord Chancellor’s assurance that there is now an unequivocal commitment to the Human Rights Act right across the Government but, in our view, public misunderstandings of the effect of the Act will continue so long as very senior ministers fail to retract unfortunate comments already made and continue to make unfounded assertions about the Act and to use it as a scapegoat for administrative failings in their departments.”

    The full report is at:

    Comment by archrights — January 5, 2007 @ 9:31 pm

  2. No, I’d not seen that. Thanks. I’ve just taken a quick look at it, and found this:

    107. The Home Office’s Review [of the Human Rights Act’s effects on their activities], unlike the DCA’s, remains unpublished. Baroness Scotland told us that the Review was an internal review and that there are no plans to publish any more than the Rebalancing the Criminal Justice System paper which seeks to implement the conclusions of the review, but that she was willing to think again about publishing the full Review. In her letter dated 6 November 2006, however, Baroness Scotland said that after careful consideration she had decided that only the summary should be made publicly available as part of the evidence to our inquiry.

    108. In our view there are strong reasons for publishing the Review itself: first, to put into the public domain the evidential basis for its conclusion that there is a culture of risk aversion throughout the criminal justice, immigration and asylum systems, to allow that claim to be tested; and second, to rebut the BBC reports in July suggesting that the Home Office’s internal review of decision-making had identified some twenty-five examples of the HRA impeding decision-making. We regard this as a good example of just the sort of rebuttal envisaged by the Review itself.

    Comment by notsaussure — January 5, 2007 @ 10:38 pm

  3. I hate to say this, but the police have been using the HRA as an excuse every time they get into difficulties for the past eight years.

    Do you remember the guy who refused to come off the roof, and the cops gave him Kentucky Fried Chicken?

    They did that because they thought it’d be the easiest way to get him down, but when the police spokeswoman was asked she cited his human rights.

    There’s no right to food, let alone KFC, for God’s sake.

    It’s a catch-all excuse for policies that the public might perceive as being “soft”.

    Rant over, continue…

    Comment by Flying Rodent — January 5, 2007 @ 11:27 pm

  4. Indeed. You know that there’s no human right to KFC, and I know that, and anyone who’s read the DCA’s Review of the Implementation of the Human Rights Act knows that, just as they know there’s no human right to receive hard-core porn in your prison cell.

    However, there is a human right for politicians and journalists to repeat demonstrable tosh as often as it suits them.

    Comment by notsaussure — January 5, 2007 @ 11:45 pm

  5. Sorry but I have to disagree with you on this one.

    One explanation as to why the police couldn’t publish the photos along with a description of the on-the-run-guys possibly would be covered by the Rehabilitation of Offenders Act/Human Rights Act. Given that they had served their sentence they are entitled to keep that information private unless asked by a body exempt from the RoO Act. EG certain employers.

    I would agree on one point though. I don’t see that the HR act would apply if the police were pursuing them during enquiries into offences it’s claimed they have commited but not served sentence for. Providing they didn’t cite the previous offences/sentences.

    This is often done in the case of serious offences and on programmes like Crime Watch.

    However a good defence team perhaps would then be able to argue that any adverse publicity before the case went to trial would be detrimental to the prosecution’s case.

    Comment by puddlejumper — January 6, 2007 @ 6:49 am

  6. In the case reported in yesterday’s Mail (and the BBC) they were abscondees rather than suspects, in other words they were guilty, so no prejudice would be possible. The HRA/DPA thing is thus a smokescreen to stop people asking awkward questions (like ‘why haven’t you caught them?’), but it doesn’t seem to have worked, since the BBC’s lead story is on open prison absconding.

    Comment by Tom — January 6, 2007 @ 10:19 am

  7. Puddlejumper, in the case of Dr Reid’s mislaid foreign prisoners, — the chaps who were supposed to have been deported but weren’t — the Rehabiltation of Offenders Act would only have applied if their sentences had been less than two-and-a-half years (longer than that and they’re never spent), and even then if they’d been released over 10 years ago, which I don’t think is the case.

    And as Tom says, it certainly couldn’t apply to a serving prisoner who’s absconded.

    In any case, the main objection to publishing images of people on the run who face trial is, as you say, that it potentially prejudices their right to a fair trial or, more probably, wouldn’t stop the trial but would make eye-witness evidence very difficult to rely upon.

    Courts, at least in my observation, are usually reasonably willing to trust juries to discount anything they may have read about a case but are also extremely aware that human observation and memory aren’t particularly reliable when it comes to identifying someone you don’t know and only saw briefly. If you’ve seen pictures of the defendant on wanted posters, it’s very difficult for anyone to be sure that your subsequent identification of the man in the dock hasn’t been affected to some extent by your memory of the pictures of him you’ve seen.

    Comment by notsaussure — January 6, 2007 @ 11:22 am

  8. True…I must admit it has been a while since I’ve worked in any areas regarding the RoO. I concede that point.

    But glad you agree on my other point.

    It is far more worrying that they were able to abscond in the first place. I think shows the level of resources not been met within the Criminal Justice system.

    Comment by puddlejumper — January 6, 2007 @ 8:05 pm

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