human rights myths

The best place to look for these is the Daily Telegraph. I don't know why I bother to look there, except it has a readership of nearly a million (nearly 2 million, if you look at the Sunday Telegraph). And because its readers mostly rule this land. And because lies are just annoying.

They are running a monster campaign against the Human Rights Act. It is European, bossy, foreign. It is weak on evil-doers, foreigners, and terrorists, and it ignores and penalises decent British citizens. We don't need it because we invented human rights. And we don't need it because we don't want human rights.

I shall add lies as I find them. Here is a spectacular example, contained within an article whose every other sentence bangs away to those enduring myths about British supremacy at which the Daily Telegraph excels.

neither of [habeas corpus, nor trial by jury] is guaranteed by the convention that underpins the Human Rights Act. While Article Five disallows imprisonment without charge and trial, only Britain and Ireland practice habeas corpus. It is possible, in many Continental countries that are signatories to the ECHR, to be locked away for months or years without charge by the simple expedient of handing the suspect over the judicial authorities. The fact that a juge d'instruction bangs you up for 15 months does not make it any more edifying than if it were done by executive diktat.

Philip Johnstone, It is time to draft another Bill of Rights

So, according to the author -

1. Habeas corpus is only practised in the UK and Ireland, and we have no problems, thank you very much, which anyone else needs to step in to solve
2. Habeas corpus is not covered by the European Convention (or the Human Rights Act) - so other uncivilised countries in Europe can lock up individuals for 15 months, willy nilly.
3. Trial by jury is an important legal right which we have and which the Human Rights Act (HRA) does not guarantee

Habeas Corpus

Points 1 and 2 are false. This is the text of Article 5.4 of the European Convention (and the HRA):

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
ECHR, Article 5.4

What more do our traditions offer than this, as far as habeas corpus is concerned?

Furthermore, every member state of the Council of Europe (all 47 of them) is bound by this article. No member state can bang you up for 15 months without violating it - although we, along with many other member states, still try to do so. And we, along with other member states, for doing so have often been told to change our practices or laws by the European Court, precisely because our noble British courts have thought it permissible to deny some people habeas corpus, and claimants have been forced to take their case to Strasbourg in order to ensure protection of their rights.

Philip Johnstone could look at some of the following case law from the European Court, in each of which instance the UK Government was found guilty of violating Article 5.4 - in other words, of violating peoples' right to habeas corpus:

Stafford v UK
Hussain v UK
Singh v UK
Curley v UK
Oldham v UK
T v UK
V v UK
Chahal v UK

Just a few to be getting on with.

He may not like many of the cases because the claimants have foreign names or have been convicted for criminal offences. But then he should be saying that habeas corpus is protected very well in our country, thank you very much, for some people, but not for others. And he needs to explain why those other people do not deserve to be banged up for 15 months without being able to challenge the lawfulness of their detention. After all - in his view the only point of the ECHR was to teach the uncivilised nations of the world how to behave1

Trial by jury

As far as trial by jury goes, I wonder if Daily Telegraph readers are aware of the percentage of cases tried by jury in this country. Do they think all are judged in this way, if it is deemed to be such an important pillar of our liberties? Or only some of them. In fact it is some of them - about 99% less than all of them.

So about 1%2 of all court cases in this green and pleasant land come before a jury. And then the question is: how important is trial by jury after all? If it is central, and we should be proud of it, and proud that our traditions give us this right, then what does that say about the 99% of cases in this country which do not come before a jury? And do the 1% of cases which are tried by a jury really give us grounds to brag about the superiority of our system over that put in place by the European Convention? It seems a little tokenistic.

Maybe it is the case that trial by jury is essential to a fair trial - although modern human rights treaties do not regard it as such. The ECHR insists on 'a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law', which leaves flexibility for member states to decide best for themselves how this can be ensured. Just one example of that very flexibility which Johnstone claims does not exist in the Convention3

If you are one of those who do think that trial by jury is essential to protect basic human liberties, then surely you need to be devoting your energies to the shabby number of trials in this country that can be deemed to be 'fair' in this respect - rather than using that shabby number to celebrate a British commitment to liberty. And if you don't think it is essential - and the human rights treaties are, after all, only concerned with what is essential, then it is surely an irrelevancy to raise it in the context of the HRA4.

Not for the readers of the Daily Telegraph, apparently. The comments below the article are simply terrifying. If you don't want to emigrate already, you will do after reading them.

• 1. He says later on: "the basic liberties whose denial necessitated the ECHR – such as the right not be rounded up because of your religion, and murdered – were already well established in this country. Indeed, we went to war to defend them. Those who drew up the convention wanted the fundamental freedoms that we took for granted bestowed upon the people of countries who had never known them." All peoples of those other countries, or just some of them?
• 2. Lord Justice Auld suggested 'less than 1%' in 2003 in his Review of the Criminal Courts of England and Wales
• 3. "[the ECHR] is very legalistic and brooks no commonsense flexibility and pragmatism..."
• 4. Lord Justice Auld again:
  "In England and Wales there is no constitutional or indeed any form of general right to trial by judge and jury, only a general obligation to submit to it in indictable cases. It is often claimed that Magna Carta, traditionally regarded as the foundation of our liberties, established such a right. The claim is incorrect. Certainly, Magna Carta is no basis for jury trial as we know it today." Review of the Criminal Courts of England and Wales