
Emily Thornberry

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The Human Rights Act: A Charter for Victims, Not Villains

Posted: 09/12/2013 17:39


With all the hullabaloo coming from the Tories about human rights, it's too easy to forget that the 1998 Act recognised rights of the victims of crime long denied under English law. If we were to allow the Chris Grayling and his cronies to tear up the Human Rights Act and withdraw from the European Convention on Human Rights from which it is derived, we would set back the cause of victims' rights by decades.

Victims of crime have traditionally been bystanders in the criminal justice system. Whether or not a crime was investigated or prosecuted was at the discretion of the police and prosecutors. Their decisions were unchallengeable and often irreversible. For centuries, the courts took the view that preserving the discretion of the authorities trumped the rights of victims to hold them to account.

It was because of the Human Rights Act that this began to change. This brought into English law European Convention rights such as the right to life and the right to live free of torture, inhuman and degrading treatment. It also imposes an obligation on the State to investigate suspected breaches of these rights and to provide a remedy. That way, we can be sure Convention rights exist in practice not just on paper.

Serious violent and sexual crime, as well as crimes of economic exploitation, will almost always constitute a breach of a human right as well as a breach of the criminal law. That means, as the courts now have had to recognise, the police and the Crown Prosecution Service are under a positive duty to investigate and prosecute them. It also means that it must be possible to challenge them when they fail to discharge that duty.

In 2011, four victims of slavery and human trafficking successfully sued the Metropolitan Police for failing to investigate their case and won. The result did not undo any of their ordeal, but it did establish a precedent and in doing so, will make the police aware that there will be consequences for failing to act.

A couple of years earlier, a young man sued the CPS for deciding to take no further action against the man suspected of biting part of his ear off. The CPS assumed without further investigation that the victim's history of mental illness would discredit him in the eyes of the jury. The High Court ruled that the CPS had failed to carry out its duty under the Human Rights Act to protect the victim from ill-treatment. This case helped bring about a shift in CPS prosecution policy away from its narrow pre-occupation with second-guessing a jury's prejudices about their characteristics, which had the effect of leaving whole categories of vulnerable victims beyond the protection of the law.

Once a prosecution is underway, human rights law has also been invoked to reduce the ordeal that a victim goes through during the trial process. Julia Mason was a rape victim who waived her right to anonymity to publicise the ordeal she underwent when she was cross-examined for six days by the man who was then convicted of raping her. She lodged an application at the European Court of Human Rights arguing that the law that allowed this failed to protect her from inhuman and degrading treatment and from violations of her private life. She withdrew the application after the government agreed to end the practice.

The Human Rights Act has not just given a voice to victims, but to the families who have to fight for the victim where the victim has died. One such family is that of Zahid Mubarek, a teenager who was murdered in Feltham Young Offenders' Institution by his racist cellmate. They used the Human Rights Act to secure a landmark public inquiry into the institutional and individual failings that led up to the murder.

If it had not been for the Human Rights Act, Zahid's family would have had to accept the internal whitewashed reports, which failed to identify staff for disciplinary action. For decades, that was the lot of families of people who had died in state custody: whitewashes, cover-ups and the closing of ranks. It is our human rights laws, first the Convention, then the HRA, that have cleared a path for victims and their families to the independent and impartial justice that is their right.

This has been the case beyond the criminal justice system too. Patients who have suffered appalling medical negligence, abused children ignored by social services, mistreated residents of care homes - they have all been given a voice by the Human Rights Act. This is why I compiled a dossier for the Shadow Cabinet that I'm sending out today, of as many cases as I could find of how human rights have helped ordinary people and their families, not the rogue's gallery of Theresa May and Chris Grayling's imagination.

The Conservatives claim to be on the side of victims, but they want to take away the most powerful weapon they have. Remote and out-of-touch, they would like nothing better than to turn the clock back to the days when a patrician, bowler-hatted Establishment could do as it pleased without challenge. On this as in everything else, they do not have your best interests at heart.


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