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Naked before the court?: The reality of human rights

Updated Friday, 18th October 2013

Appearing naked before a judge, and voting while in prison: How far should respect for human rights go?

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Image: Should Strangeways inmates get the vote? mrrobertwade under CC-BY-NC-SA licence

Transcript of the human rights discussion

Gary Slapper  

Hello, I’m Gary Slapper, Global Professor at New York University, and a visiting professor at the Open University.  With me today is the distinguished British barrister and leading QC, John Cooper.  We’re going to talk about human rights.  In 2005, in Scotland, Stephen Gough was arrested and prosecuted for a breach of the peace, for walking naked on the outskirts of Edinburgh, and he was later asked to attend court and he arrived to face the charge, naked.  When he was found to be in contempt for being undressed in court, he appealed, and his lawyer argued that appearing naked in a law court was a fundamental human right.  Court of Appeal disagreed, and ruled that presenting yourself naked to a judge in a law court was a fundamental human wrong.  Now…

John Cooper

Well, all I can say about that is I never go into court without my briefs!

Gary Slapper

Oh dear!  So there is much fuss as there was in relation to that case when sometimes an argument is made about human rights that seems preposterous and gives the public at large the view that this is a legal idea of some ridiculous nature.  Now, in 2013 the European Court  of Human Rights decided the case of “Vintner and Others”, and it decided that the United Kingdom was in violation of Article 3 of the European Convention on Human Rights, which prohibits inhuman and degrading treatment and it was a violation, the court said, because it was sentencing people to whole life tariff sentences without providing any opportunity for that sentence to be  reviewed, it was giving no hope of realistic release, and to be compliant the court said, with Article 3 there must be two things – a possibility of release, a notional possibility, and a possibility of review, usually after 25 years.  This judgement triggered an enormous maelstrom of public disapproval and, once again, the idea of human rights being something which is an unpalatable addition to British legal thinking was in the public discourse.  What was your view about this case?

John Cooper

The court had got it absolutely right in my opinion but we need to get some perspective on it as well. These people are very small in number, certainly in the courts in the United Kingdom,  and what the court is saying is not that they’re going to be released or not, indeed, that they will ever be released, but that anyone that goes to prison must have some hope of release, and Article 3 is the most important, in my view, article of the human rights canon.  It is the one article that you cannot derogate from, you can even derogate from Article 2, Right to Life, but you cannot derogate from Article 3 and, effectively, what it’s saying is there always must be hope, and that one cannot take away that hope …

Gary Slapper

Exactly, and the court took an unusual step in this case of issuing a statement for the media specifically to designate that this was not something which would entail the release of the three applicants in the case and that  in all possibility, people in this category might never be released, but the principle  would apply  that there should be, as you say, a review.   Of the 88,179 prisoners in England and Wales, fewer than 50 are in that category.

John Cooper

And I think, Gary, that does put it into clear perspective here.  It’s a statement of principle, an important principle, but it’s not going to cause, I think, the wholesale  change in the safety of society as we know it.

Gary Slapper

Another issue in a related theme concerns prisoners’ rights to vote.   The European Court of Human Rights in a comparable judgement eight years ago said that the UK was in violation of the European Convention by not providing any system, even a restricted one, for prisoners  to vote.  The British Government has chosen so far not to implement the legal changes that the European Court requires, and I wonder what your view about that case is.

John Cooper

I think that’s a great shame that the government have not done that.  They’re going to have to, it’s a great shame they haven’t.  Prison is there for punishment, of course it is, but it’s also there for rehabilitation.   The majority of prisoners, except those that we spoke about at the top of this discussion, will be released back into society and we hope as fully functioning members of society.  To ostracise them and marginalise them even more when they’re in prison by removing a basic fundamental, the right to vote, even if they don’t want to use it, humiliates, marginalises and just exacerbates all the very things that put them in prison in the first place.  In short, we have to remember these people have to be released back into society and simply stripping them of any basic dignity in prison is not good for them, and it’s not good for society.

Gary Slapper

John, as I’m sure you know, politicians have from time to time sought to mislead the public, or have given that impression in any event, when it comes to the nature of human rights.   So, for example, Dominic Raab, the Conservative MP, referring to the European Court’s decision in the whole life tariff case, claimed that the decision was evidence of Strasbourg’s “warped moral compass” and he used that expression, even though the court had made it quite plain that it wasn’t giving a licence to give wholesale release to terrible people who’d done terrible things, but were just making a technical change in the law.   I wonder what your view is, John, of that?

John Cooper

The Human Rights Act is very much a political football. It certainly is in this country.  It’s always going to get a bad press with the Tories who want to get rid of it, or not all of them, but the majority do, so every opportunity they can take to undermine it or criticise it will be taken to try and say the Human Rights Act should go and that really angers me when they say that because there are some important things that the Human Rights Act and the convention bring in.  Let’s just remind ourselves.  This is a body of jurisprudence which brings in freedom of speech; the right to life; Article 3 that we’ve just discussed recently; freedom of association; (Article 3 I should say being torture, inhuman and degrading treatment); freedom of association.  All these things, for instance, in themselves that encapsulate decent living...  the right to worship freely ...and so we, we often hear these short, sharp debates generated by politicians that want to see an end to human rights, when in reality this body of jurisprudence protects our basic standards, and  we need to keep saying that, I think.

Gary Slapper

Mm, absolutely, the trajectory of the development of those ideas, the sort of longer arc of history, puts these things in an interesting perspective and, as you say, these are very valuable  rights that people mostly  benefit significantly  from having acquired.  You can trace the origins of these ideas through many thousands of years: the  Hammurabi Code of Babylon in  1780  before the Common Era, going back, you know, almost  4,000 years, begins to conceptualise the idea that you would have an expectation to a right conferred on you by virtue of being  a person, as opposed to someone who was a citizen of a certain place.  Through Magna Carta in 1215, only applying to a certain part of humanity but there was  a right attaching  to people in particular.  The Bill of Rights in 1689 outlaws in a phrase still used today, ‘cruel and unusual punishment’, and Thomas Paine’s  Rights of Man,  says that  the rights are inherently in all inhabitants and the fact that charters aren’t particularly good, he notes, because charters take away rights whereas rights really should be these  imprescriptible things which are in you by virtue of being human.  So this arc across that part of history and the French  Revolution and so on gives people greater expectation as each era moves on that they can expect a certain degree of civilised behaviour, the right to a fair trial.  So where does that arc take us, do you say, in the next political setting and era?

John Cooper

In many respects I think it’s a matter of defending what we have, the arc, as it were, completed its manoeuvre, if I can put it that way,  with the Human Rights Act because what the Human Rights Act actually achieved was to enable the very rights that people in certain contracting countries had to take their cases to Europe, enshrine those rights, that they could be taken domestically,  and that was the end of the focus, as it were, that you didn’t have to travel to the European Court, you had those rights in your own domestic court, and that was an important perhaps final step.  What we have to do now, in my opinion, is actually defend the importance of these rights that have been hard won and make the point that they’re there to protect ordinary, decent men and women.  Most recently, for instance, there’s been a debate over the use of the Human Rights Act in the Abu Qatada debate, and I’ve been discussing that on a number of platforms.  I hold, let me make it clear, no support for Abu Qatada and what he may or may not stand for.  To be fair he hasn’t had his trial yet but if it be true, I hold no support for that whatsoever.  But I do say, and say again, that the process that he had to go through, or the process that the government had to go through, was important.  Here we had, in that case, a situation whereby Jordan were still adhering to the principle that they could obtain evidence by torture and use it, and that was in gross violation of any decent code, let alone Article 3.  And what  the courts enforced in the Abu Qatada case on the Human Rights’ perspective was that yes, send him back for trial, but firstly make sure that you undertake not to use torture evidence.  Now that was not there to protect Abu Qatada as a man, it was there to protect all of us, and you cannot suspend human rights, you cannot indeed suspend any law simply because you don’t like the cut of the jib of the person that’s using it.

Gary Slapper

Yes, and turning to the swill of misinformation in the public domain, there are many quite  vivid examples of how the public can be misled, particularly on the direct theme of the value or the nature of human rights.  There was a case, you must remember, a few years ago, 2007, of where the Shadow Justice Secretary, then Dominic Grieve, said that it was very wrong for the police in Derbyshire to refuse to put up wanted posters of some escaped murderers because it was supposed to be in violation of their human rights.  It turned out to be that the story was based on nonsense, nonsense on stilts. There is no such provision in the Human Rights Act, or there’s no case law to the effect, the police weren’t doing it for that reason, but the news was halfway around the world before the truth had got its boots on, so it was very difficult to correct that particular misapprehension.  The case of the Bolivian man who was supposedly kept in Britain as opposed to being repatriated, because his cat was British and it turned out again to be based on a joke, you know a silly or misguided joke!

John Cooper

Well Gary it goes back to the point I was making a moment ago about political imperatives.   It’s not just politicians of a certain inclination, it’s newspapers of a certain inclination, they leap on these things, and I’ve got other examples of me being contacted by broadcasters and having scenarios like that run past me, and said  “this is the Human Rights Act”, and when I have to disabuse them that it’s absolutely got nothing to do with the Human Rights Act,  there’s a sense of disappointment in their voices that “oh that’s one that got away, we can’t give the Human Rights Act a good kicking!”

Gary Slapper

Yes.  Thank you so much for that very interesting discussion.

John Cooper

Pleasure.

 

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