Theme 8: Access to justice and the right to remedy
Under the theme of Access to justice and the right to remedy the report provides an overview of what appear to be some human rights gaps and good practices under the headings of:
Access to justice (including access to legal advice and legal aid)
Under the European Convention on Human Rights there is a general duty on states to ensure practical and effective access to justice. The report highlights concerns related to steps taken following the Cadder decision on access to a lawyer during questioning including: the provision of legal advice over the phone; periods of detention without charge; the option to waive the right to legal advice and inferences which can be drawn from a suspect’s silence. The report also notes that concerns have been raised regarding the availability and distribution of legal aid in times of recession and in steps to review financial contributions in criminal legal aid. A range of research has also identified ways in which certain groups and communities may be disadvantaged in the legal process, including: disabled people, victims/survivors of domestic abuse, asylum seekers and immigrants, and so-called "vulnerable" suspects and witnesses. Amongst specific issues identified in the research are: physical access; access to legal advice; information and communication barriers; and attitudinal issues. The potential implications of a more expansive approach taken by the UK Supreme Court to standing to raise public interest cases are noted as are the requirements of international agreements on access to justice in environmental matters, where UK practice has been found to be inadequate.
My expectations were that I would be treated fairly and that my rights as a human being would be respected. I would have access to information, the same range of resources and the same standards afforded to that of the man accused of stalking me...My experience of the criminal justice system was one of dismay and horror. If ever a system abused victims and denied vulnerable people of their very basic human rights, this was it. The focus of the criminal justice system is purely on the accused or offender and the system has been structured for this specific purpose. It had provided a pathway for these people and none for the victims...My stalker’s rights were catered for at all levels. His right to a fair trial, his treatment within the system, his access to services, his human rights being respected and fairness surrounding his sentencing...My experience highlighted that offenders have rights and victims have policies and guidelines.
Emma, Victim of Crime.
Juvenile justice
The UN Convention on the Rights of the Child provides that children who have been charged with criminal offences must be dealt with in a manner which takes full account of their age, level of maturity and intellectual and emotional capacity. The report notes that the Children’s Hearings System is widely praised, but cites recommendations to increase its funding to reflect an increasing number of cases. The report also notes concerns at the low age of criminal responsibility in Scotland.
Criminal procedure
The research notes concerns which some have been raised regarding the operation of the disclosure regime. These relate to the disclosure of previous convictions and disclosure of medical or mental health records. It also notes debates surrounding the operation of the rule requiring corroboration in criminal trials.
The duty of effective investigations
Positive obligations under the right to life and the prohibition of torture, inhuman or degrading treatment or punishment include an obligation to hold an effective official investigation. In Scotland, Fatal Accident Inquiries (FAIs) are the means of investigation in cases of sudden, suspicious or unexplained death, or death in circumstances that give rise to serious public concern. Consideration has been given to the sufficiency of this mechanism to comply with investigation requirements until international human rights law.
Victims’ rights & the right to remedy
The human rights of everyone involved in the criminal justice system, victims and witnesses as well as suspects, must be respected, protected and fulfilled. A common concern is with delays with legal proceedings and the impact of such delays on victims’ rights to effective remedies. The report highlights views that there remains a lack of recognition and that there are opportunities for further realisation of the human rights of victims of crime and human rights abuses. Further, opportunities to advance the right to an effective remedy are identified including facilitating effective apologies and revisiting the operation of the system of time limits for civil remedies. In addition, the report highlights recommendations made to address access to justice and remedies for survivors of historic child abuse.