Is the EU responsible for "Inhuman Rights"?

Published: 11th Feb 2013

"Judges rule CRB checks 'incompatible' with Human Rights Act"

Those were the words of BBC News at the end of last month after the Court of Appeal ruled that blanket criminal records checks were not compatible with the European Convention on Human Rights, following the successful appeal in two cases brought before the Court.

Yesterday the Sun also took a view on the judgement:

"Huntley abused me when I was 11 and went on to kill - Now EU could let fiends like him prey on your children... Hailey, now 26, is backing our Sun Justice Campaigners fight to make sure the CRB checks are not weakened."

The Sun's article hasn't passed without controversy. The UK Human Rights Blog yesterday published a factcheck of its own on the Sun's report which highlighted the ease at which the laws involved can be confused, and hence why the Sun's ire might be misdirected.

So what's all the confusion about?

The background

The Court of Appeal's Civil Division delivered its judgement last month on the cases of 'T', 'JB' and 'AW' - three individuals who, summarised crudely, all had problems with a past caution or conviction affecting their prospects of securing future employment or study.

They all brought legal proceedings claiming that the requirement that they disclose spent police warnings was, in their cases, incompatible with Article 8 of the European Convention on Human Rights (enacted in the UK by the Human Rights Act), which grants everyone the right to respect for his or her private and family life, home, and correspondence. Furthermore, there can't be undue interference in this by a public authority.

The problem, as the Court of Appeal concluded, was that in the case of T, the Police Act 1997 and Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 were both incompatible with Article 8.

The 1997 Act, amongst other things, allows the Home Secretary to issue enhanced criminal records certificates, which give relevant details of an applicant's recorded criminal history. The 1974 order gives exemptions to the Act in the same year which allows certain offences someone has committed to be 'spent' after a period of time.

As a result of the Court of Appeal's ruling (the reasoning behind which is outlined by the UK Human Rights Blog), the Government is now challenging the decision.

The Sun

By claiming that "now the EU could let fiends like [Ian Huntley] prey on your children", the newspaper commits a common mistake: confusing the European Union (EU) with the European Convention on Human Rights (ECHR) and the Court that exists to uphold it (ECtHR). These are quite separate from each other, and the EU has nothing to do with this story.

Neither is the Court of Appeal, based in the Royal Courts of Justice in London, related to the EU, which was implied by the Sun's story. The Judge delivering the ruling - Lord Dyson - is the second most senior judge in England and Wales. 

It's therefore possible that the Sun's readers could have been misled into believing the often reviled EU was responsible for the ruling that was issued last month.

It's also worth mentioning that the Court of Appeal, while accepting the appeals brought by T and JB, refused the appeal brought by AW. AW (she) had committed a far more serious offence previously (manslaughter and robbery) than the relatively minor cases of T and JB, and the Court refused on the grounds that:

"In our judgment, the decision of Parliament fell within its area of discretionary judgment. It was entitled to take the view that some offences are so serious that they should never be regarded as "spent". This is not a blanket policy. It discriminates between offences which are very serious and those which are not..."

The Sun focus on the case of people like Ian Huntley to prove its point, however its worth bearing in mind that the Court of Appeal rejected a case based on a more serious offence in spite of invoking similar arguments to the other two cases, for which it granted appeals.


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