Friday, 27 June 2008

Lawyers rely on human rights too much. That can't be true???...can it??

I was poking around the Solicitors Journal when this little gem of an article popped up. You have to love Lord Hoffman ( may be indignant to go as far as calling him "The Hoffman" I feel...)
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Lord Hoffman criticises defence lawyers obsessed by human rights arguments

24 June 2008

Lord Hoffman has attacked lawyers who rely excessively on human rights arguments.

Giving judgment in R v G [2008] UKHL 37, Lord Hoffman said: “This case is another example of the regrettable tendency to try to convert the whole system of justice into questions of human rights.”
Despite his words, the losing side has promised to appeal to the ECHR.

The case concerned a 15-year-old boy, known as G, who had sex with a girl he genuinely believed was 15, but turned out to be 12.

The boy’s lawyers argued that s 5 of the Sexual Offences Act 2003, which makes rape of a child under 13 a strict liability offence whether or not the accused thought the child was under age, infringed the boy’s right to a fair trial (Article 6 of ECHR).

They also argued that the decision to prosecute him under s 5 rather than s 13 of the Act, which deals with sexual offences committed by young people, was incompatible with the boy’s rights to privacy and family life (Article 8).

Lord Hoffman said that Article 6 did not, following Lord Justice Dyson in R v Gemmel [2002] EWCA Crim 1992, apply to the content and interpretation of substantive domestic law.

“Prosecutorial policy and sentencing do not fall under Article 8. If the offence in question is a justifiable interference with private life, that is an end of the matter. If the prosecution has been unduly heavy handed, that may be unfair and unjust, but not an infringement of human rights.”

Baroness Hale and Lord Mance agreed with Lord Hoffman and dismissed G’s appeal, with Lords Hope and Carswell dissenting.

Lord Hope said that Article 8 of the Convention guaranteed everyone the right to respect for his private life, and a teenager had as much right to respect for his private life as any other individual.
“It is unlawful for a prosecutor to act in a way which is inconsistent with a Convention right. So I cannot accept Lord Hoffmann’s proposition that the Convention rights have nothing to do with prosecutorial policy.”

Michael Boyd, solicitor at criminal specialists EBR Attridge in Harlesden, London, represented the boy. He said he was likely to appeal to European Court of Human Rights on both the Article 6 and the Article 8 points.

He criticised Lord Hoffman for dismissing the decision of the ECHR in Salabiaku v France [1988] 13 EHRR 379.

“The House of Lords is much more intellectually powerful than the European Court and it must be galling for them to have to follow precedents laid down by Europe.”

He said the defence team was surprised by Baroness Hale’s hostility to its case.
Boyd added that some of her comments had raised eyebrows. Baroness Hale said there was nothing unjust or irrational about s 5 of the Sexual Offences Act.

“Every male has a choice about where he puts his penis. It may be difficult for him to restrain himself when aroused but he has a choice . . . The object is to make him take responsibility for what he chooses to do, not only an instrument of great pleasure, but also a weapon of great danger,” said Hale.

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