The International Covenant on Civil and Political Rights and United Kingdom Law

By David Harris; Sarah Joseph | Go to book overview

accordingly, the Act sets a 'dangerous precedent'.364 Whether trials held by virtue of the Act can be 'fair' in the light of the delay is debatable and will depend on the circumstances.

Finally, it may be noted that the admittedly retrospective operation of a confiscation order under the Drug Trafficking Offences Act 1986 has been held by the European Court of Human Rights to violate Article 7(1), ECHR, on the ground that it amounted to the imposition of a penalty.'365


Article 15(2)

'Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at any time when it was committed, was criminal according to the general principles of law recognised by the community of nations.'

This appears to add nothing of substance to Article 15(1).


CONCLUSION

In the particular context of the mainstream administration of justice, to a considerable extent English law and practice complies with the requirements of the Covenant.

The main areas of concern are the apparently arbitrary nature of arrests under the Prevention of Terrorism (Temporary Provisions) Act 1989 and stop-searches; the conditions of prisoners in detention; extended detention under the 1989 Act (subject to derogation); reversal of the burden of proof in certain criminal cases; the inequality of resources between prosecution and defence; reliance on uncorroborated confession evidence; the erosion of the right to silence; and doubts over the effectiveness of remedies for breach of Covenant rights, given the lack of confidence in the police disciplinary process and the erosion of eligibility for civil legal aid. That many other aspects of criminal and civil justice processes give rise to controversy merely reinforces the point that international standards are of necessity minimum rather than optimum standards.

____________________
364
Poustie and Upton, n. 363 above.
365
Welch v. UK, Series A No 307-A ( 1995).

-241-

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