Burdens, EU Law and Human rights

[Donald Ramsbottom]

For those of you wondering how the courts will interpret the ne EC act and
its interaction with other statutes and EU law there was a recent case
dealing with the newHuman Rights act, The presumption of innocence etc. A
large chunk is set out below for your perusal and comment.




"R v DIRECTOR OF PUBLIC PROSECUTIONS, EX PARTE (1) SOFIANE KEBILENE (2) FERINE
BOUKEMICHE (3) SOFIANE SOUIDI : SAME v SAME, EX PARTE FATEH RECHACHI (1999) 

QBD (Bingham LCJ, Laws LJ, Sullivan J) 30/3/99 

CRIMINAL PROCEDURE - CIVIL LIBERTIES - EUROPEAN - ADMINISTRATIVE 
HUMAN RIGHTS : HUMAN RIGHTS ACT 1998 : ART. 6(2) EUROPEAN CONVENTION ON
HUMAN RIGHTS :
PRESUMPTION OF INNOCENCE : BURDEN OF PROOF : S. 16A AND S. 16B PREVENTION OF
TERRORISM
(TEMPORARY PROVISIONS) ACT 1989 : LEGITIMATE EXPECTATION : DIRECTOR OF PUBLIC
PROSECUTIONS : CONSENT TO PROSECUTION : PUBLIC INTEREST : PRIMARY DOMESTIC
LEGISLATION :
TERRORISM : ENACTMENT : PROSPECTIVE LAW : TERRORISM 

The central provisions of the Human Rights Act 1998 had no binding effect
until they were brought into force and
became part of domestic law. However, the DPP only had an obligation to
pursue a case if, after all things
considered, a prosecution was in the public interest, and a relevant aspect
of the public interest was whether a case
would be overturned on appeal by reason of the enactment of the 1998 Act. *
Leave to appeal to the House of
Lords granted. 

Application for judicial review by four defendants against the decision of
the Director of Public Prosecutions ('DPP') to
prosecute them under the Prevention of Terrorism (Temporary Provisions) Act
1989 (as amended) during the interim period
between enactment of the Human Rights Act 1998 and the bringing into force
of the main provisions of that Act. Section 16A
and s. 16B of the 1989 Act were directed at the possession of articles and
items of information which were innocent in
themselves, but capable of forming part of the paraphernalia or operational
intelligence of a terrorist. All four applicants had
been charged with an offence under s.16A of the 1989 Act, and the fourth
applicant had also been charged with an offence
under s. 16B. The DPP's consent was needed to prosecute anyone under those
provisions, and the applicants' case was the
first to arise under them. It was submitted that s.16A and s. 16B placed a
legal burden on the defendant to prove his innocence
of the offences therein defined, and that they therefore violated Art. 6(2)
of the European Convention on Human Rights, which
provided that everyone charged with a criminal offence had a right to be
presumed innocent until proven guilty. In the
applicants' submission, they had a legitimate expectation that the DPP would
exercise his prosecutorial discretion in accordance
with the Convention. The trial judge had ruled in favour of the applicants
on the issue of whether the 1989 Act was in breach of
Art. 6(2) of the Convention. However, he had rejected the applicants'
contention that the prosecutions involved an abuse of
process. On behalf of the DPP it was submitted that there was no
inconsistency between s.16A and s. 16B of the 1989 Act
and Art.6 (2 of the Convention. 

HELD: (1) The Divisional Court had jurisdiction to grant relief by way of
judicial review on this matter. The High Court
possessed a power of judicial review over the decisions every subordinate
public authority, including the DPP. R v Manchester
Crown Court, ex parte DPP (1993) 1 WLR 1524 applied. 

(2) It could not plausibly be said that ratification of the Convention
nearly fifty years ago gave rise to any legitimate expectation
today. Nor could a legitimate expectation be derived from statements made by
ministers on the future conduct of the DPP, or
from the provisions of the 1998 Act itself. An element of retrospectivity
was introduced by s.22(4) of the 1988 Act and victims
of acts made unlawful by the Convention could rely on this section when
s.7(1)(b) was brought into force. However, that
exception was contradicted by the express terms in the 1998 Act and by the
fact that Parliament had stipulated that the main
provisions of the Act would not come into force until a later date. The
central provisions of the 1998 Act had no binding effect
until they were brought into force and became part of domestic law.
Reference could be made to the Convention to resolve an
ambiguity or to inform the exercise of an administrative discretion, but
until implemented the provisions of the Convention could
not be relied upon to counter, undermine, modify or emasculate the plain and
unambiguous effect of enacted primary domestic
legislation. Prospective law could not override binding law, and it would be
contrary to the intention of the legislature if those
provisions were to be treated as though they had immediate effect. Minister
for Ethnic Affairs v Teoh (1995) 183 CLR 273
and R v Secretary of State for the Home Department, ex parte Ahmed and Patel
(1998) 1 NLR 570 considered. "


For obvious reasons we have to try and make sure that the powers that be get
the wording of the current act right, otherwise the abiguity will lead to
protracted expensive cases which many will not be able to contemplate.

I do not have the full report as yet but if anyone wants the other couple of
pages posted please let me know.

Donald Ramsbottom LL.B, BA (Hons).

RAMSBOTTOM & Co. Solicitors

Internet Law & Global Cryptology Law Specialists