The European Convention on Human Rights has no place for Habeas Corpus

This article was first published by The Bruges Group and we re-publish with their kind permission. 

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​Until recently, the ECHR was regarded as a holy cow, to be revered by all. In fact, there was never any call on, or by, any UK government up to and including Theresa May’s, to withdraw the UK from the European Convention or Court of Human Rights. The only criticisms were a certain amount of – well justified – harrumphing in recent years that the ECHR is a “terrorists’ charter”, preventing us from dealing with terrorists and other criminals as we see fit. There was also outrage, even by David Cameron, when the Court said that the UK must give the vote to “prisoners” (the debate never seemed to specify if it meant convicted prisoners, or prisoners on remand awaiting trial so to be presumed innocent, or both). In any case Lord Judge, the former Lord Chief Justice, said that that demand by the Court on our Parliament was “a dramatic and unconstitutional extension of judicial authority.”

But now, Boris Johnson’s government has said it has little or no interest in remaining a signatory of the Convention, and under the jurisdiction of the ECHR. The Euro-fanatical Guy Verhofstadt MEP, in charge of Brexit on behalf of the European Parliament, is aghast. I aim to show now that, not only does the Convention and the Court prevent us from dealing with criminals as we see fit, but that it does not even do what it is supposed to say on the tin, making no provision for defending basic rights which in Britain are considered as our natural birthright, like the air we breathe.

It is true that the ECHR was devised in 1950, before the EU or its forerunners began, and is formally a separate institution. However, there are strong connections between the EU and the ECHR: being signed up to the ECHR is a precondition for membership of the EU. So, all EU member states, and hopeful candidate countries, are signed up to it. It has the same flag with the circle of yellow stars, as the EU. And it is located in Strasbourg, one of the homes of the EU Parliament, so certainly its judges and other staff are in contact, socially as well as officially, with EU personnel, and doubtless mingle on the same cocktail party circuit. Decisions by the ECHR are highly unlikely to represent even a restraining influence, let alone any impediment, to the furtherance of the EU project towards “ever closer union”.

Here are reasons why it is not fit for purpose for the UK:

1) The UK cannot be considered independent if we allow a court made up of judges from across Europe, political nominees of 47 regimes, some with highly questionable human rights records, to define and to dictate for us what our human rights should or should not be. Especially considering that there is no appeal against its decisions, which are final. It is at present our Supreme Court in matters of human rights. To be free, and self-governing again, we must therefore withdraw from the European Convention, and from our subordination to that Court.

This will not put us on a par with Belorussia, as has been claimed, but will bring us into line with Australia, New Zealand and Canada, which, not being European, are not subordinate to it. The fact that it was drafted by British lawyers is not relevant. It was intended to prevent any repetition of the sort of atrocities that had been perpetrated by some European regimes, and allowed by their laws. However, its language, as I shall show, is, in some important points, vague and woolly, to enable it to cover legal systems as different and as incompatible as, say, the Turkish or Russian, and the British. Or indeed, systems with such profound differences as those existing between the English-speakers and the continentals.

2) Does the ECHR even do what it says on the tin? Does it actually protect what we consider to be our basic rights and civil liberties? Let us now look at some human rights, and see whether the protection it is supposed to offer is actually effective, or whether they are better assured by English common law.

Let us take a very basic human right – the right to individual freedom, freedom from arbitrary arrest and imprisonment. This is set out in the U.N.’s Universal Declaration of Human Rights, article 9:

“ARTICLE 9. No one shall be subjected to arbitrary arrest, detention or exile.”

Freedom from arbitrary arrest and detention is supposedly assured by the ECHR’s articles 5 and 6. The issue here is detention without trial, or oppressively lengthy pre-trial detention. The ECHR article 5 says:

“ARTICLE 5 Right to liberty and security

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.”

Various exceptions are then listed. The one that concerns us is:

“5.1.(c) the lawful arrest or detention of a person affected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.”

And article 6 says:

“ARTICLE 6 Right to a fair trial. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

The aim should be to prevent an innocent person being whisked away into prison by the state and kept there for long periods with no public hearing, and no serious grounds for doing so. If the State does have this arbitrary power, it can, and often does, use it to have political opponents put away. This power to deprive persons of their freedom, at will, with no questions asked, has been a tool for tyranny and for political intimidation since time immemorial. Note that the European Convention, unlike the U.N. Declaration, does not use the word “arbitrary”. We have an arbitrary arrest and detention when a person is arrested and imprisoned without any serious evidence of guilt having been previously collected.

The barrier against this happening is assured in Britain by our law of HABEAS CORPUS, under which persons who are deprived of their freedom can demand that EVIDENCE OF A PRIMA FACIE CASE TO ANSWER shall be exhibited in a public hearing before a court within HOURS or at the most DAYS after arrest. Traditionally this meant that the morning after arrest the prisoner should appear in a public hearing in a magistrates’ court, where the prosecution could be called upon to exhibit the evidence already collected beforehand. If the magistrates are not convinced that the evidence is sufficient to warrant a trial, or if there is no evidence but merely a suspicion, based perhaps on clues, or evidence so flimsy as to be considered insufficient, the case is dismissed and the prisoner is freed there and then.

The hearing and the debate on this matter is conducted in PUBLIC, since a fundamental maxim of British justice is that JUSTICE MUST NOT ONLY BE DONE BUT BE SEEN TO BE DONE. This provision of Habeas Corpus ensures that the investigators – in the UK, the police – have to carry out their investigations BEFORE arresting a suspect, not after, as happens all too often in continental jurisdictions. Usually a person arrested will spend the night in a police cell, and the next morning will appear before the magistrates in open court to be charged. If arrested on a Friday evening, he might have to wait till Monday morning. There used to be an absolute time-limit, and only in cases of charges of terrorism, of seven days between arrest and this first appearance in a public hearing in open court. Some years ago, there was a proposal to extend this limit to 90 days (three months). Battle was joined in Parliament over this controversial proposal.

Former Brexit Secretary, David Davis argued most strongly against this extension and went as far as resigning his seat and putting himself up for re-election on this very point. He was re-elected by his constituents. In the end a compromise was reached with the limit set at 28 days, and only for cases of terrorism. This safeguard appears to be preserved by the European Convention articles 5 and 6. However, it all hinges on what is understood by the word “reasonable”, in the context of “reasonable suspicion” and “within a reasonable time”. For us in Britain a reasonable time would be a matter of hours, or at the very, very most, and only in extreme terrorist cases, 28 days.

The strict time-limit provided by Habeas Corpus ensures that the police have to collect evidence of guilt before carrying out an arrest, since the arrest must be speedily followed by a formal charge and the charge must be based on evidence, and the evidence must be sufficiently substantial to convince a bench of magistrates that there really is a serious case to answer. This is essentially what article 38 of Magna Carta says, but it is so obvious to English-speakers that this article is hardly ever mentioned. In continental Europe, in contrast, people are regularly arrested and held for months, and sometimes longer, in prison before their first public hearing. This is considered “reasonable” in those systems. The cause of such lengthy detention is that they can and often do prefer to arrest a suspect at the outset of their investigations, on the basis of mere clues, not evidence, and then they seek evidence of guilt to commit the suspect to trial afterwards, while he or she is safely under lock and key.

We shall see that this inquisitorial, not to say inquisitional, method of investigation, with its total disregard of our basic Habeas Corpus rights is perfectly acceptable to the ECHR. It is not however acceptable to anyone in Britain. Of course, an investigation can take several months, whether the suspect is in prison or not. Since continental judiciaries often prefer to investigate cases with the suspects in prison, they will have to sit in prison for all this time, pending conclusion of the investigation. So this is why a six-month time limit, renewable for three months at a time, an unspecified number of times, is considered “reasonable” in the EU’s project for a single uniform embryo criminal code for the whole of Europe, called “Corpus Juris” (see CJ art. 20.3.g).

The Corpus Juris project was devised at the behest of the EU Commission, and presented at a special seminar in Spain, which I attended, in April 1997. During the seminar, I stood up and asked the assembled jurists why they had decided to adopt the Napoleonic-inquisitorial system of criminal justice for all Europe, rather than our own Magna Carta-derived system. There was an embarrassed silence for about ninety seconds, an elderly Spanish judge mumbled something about juries being important for the English, and then they said, “Next question please.” So, our 800 years of legal history and institutions defending individual freedom were to be written off with no debate nor explanation, by Brussels. Luckily this proposal was rejected by – even – the very Europhile Blair government; for Kate Hoey MP, Home Office Minister at the time – bless her cotton socks! – promised Parliament they would veto it if it were ever formally proposed. There was likely to be a furious row if the EU had insisted, as they were intending to steam-roller it in by majority voting. Blair evidently did not have the stomach to disown Ms Hoey, though the UK Labour MEP Pauline Green led all the Euro-socialist MEPs in a vote to “welcome” the Corpus Juris proposal.

There followed a weighty Report on Corpus Juris by a House of Lords Committee (1999 – HL62), chaired by Lord Hope of Craighead, which rejected it. Since then the project has been put aside but not abandoned. In fact the project’s centrepiece, the establishment of a European Public Prosecutor’s Office with wide-ranging powers over the entire territory of most EU states, has taken place and the EPP is due to start her operations in September this year, as I have reported in another article. For further details on the Corpus Juris project, readers may wish to view the debate I held in February 1999 against the British co-author of Corpus Juris, Law Professor John Spencer QC, of Selwyn College, Cambridge. The debate was held in Cambridge, on his home turf. I am glad to say that my motion, that “Corpus Juris is a threat to our civil liberties” was carried by 39 votes to 4. One of those voting for my motion was a stipendiary magistrate with long experience, Mr Eric Crowther. The debate was videoed, and can be viewed on YouTube.

So, we see that the two methods of proceeding – the Anglo-Saxon method derived from Magna Carta, and the Napoleonic-inquisitorial method used on the continent, are diametrically opposed.

Which method does the European Convention and Court of Human Rights espouse?

There was a case in Italy in the early 1980s, of an Italian Law Professor, Luciano Ferrari Bravo, who was arrested (together with many members of the faculty of Political Science of Padua University) on suspicion of being the brains behind the left-wing terrorist group known as the Red Brigades. Many of them were kept in prison for five and a half years before their first verdict. This was allowed under Italian law at that time. After 4 years and 11 months in prison Prof. Luciano Ferrari Bravo took Italy to the European Court of Human Rights, to see if they considered such a long time in prison on mere suspicion to be “reasonable” under the terms of article 5.1.c, which provides for “reasonable” suspicion being a requirement to hold someone in detention before trial, and article 6 which provides for not more than a “reasonable” time to elapse from the moment of arrest and imprisonment to the first appearance in court in a public hearing.

In English terms, a “reasonable suspicion” would be the production of sufficient evidence to show that there is a prima facie case to answer (though certainly not to wait 4 years and 11 months); and Habeas Corpus, by guaranteeing a very speedy public hearing after arrest, where the grounds for “reasonable suspicion” are to be shown, ensures that the evidence is serious enough to show, not conclusive guilt, but that there is a serious case to answer, and that this evidence must have been collected beforehand.

The continental view is completely different. The Court threw out his application. The opening lines of the decision by the ECHR read:

“Article 5, paragraph 1(c), of the Convention:

It cannot be required in order to justify arrest and detention on remand that the existence and the nature of the offence of which the person concerned is suspected be established since that is the aim of the investigation the proper conduct of which is facilitated by the detention.”

The applicant was also pleading that 4 years and 11 months was not a “reasonable” time: This argument was also rejected by the Court:

“In this connection, the Commission stresses that there can be no question of regarding arrest or detention on remand as being justified only when the reality and nature of the offences charged have been proved, since this is the purpose of the preliminary investigations, which detention is intended to facilitate.”

(Decision No. 8339/78, Schertenleib v. Switzerland, D.R. 17 p. 180). (see APPLICATION N° 9627/81 Luciano FERRARI-BRAVO v/ ITALY DECISION of 14 March 1984 on the admissibility of the application Page 37)

Note the use of the word “suspected” and the words “established” and “proved”. The word “evidence” is not used. Either guilt is suspected, or it is proved. To prove it, an investigation must be conducted, and, in the view of the ECHR, this is greatly “facilitated by the detention” of the suspect. The intermediate concept of “enough evidence to show that there is a prima facie case to be answered” is absent.

This is surely because Italian, and French (which is a working language of the ECHR), do not have, in their judicial parlance, a word that corresponds to our word “evidence”. Both languages have a word for “clue” (indice/indizio) and a word for “proof” (preuve/prova). Confirmation of this can be found in a periodical of the Royal Canadian Mounted Police, which, since Canada is a bilingual country, publishes articles in both languages. The English versions of articles about crime detection, obviously made copious use of the word “evidence”. The French versions, to translate this, had to make do with “éléments de preuve”, literally “elements of proof”. This is not quite the same thing. The lack of a precise word means there is a lack of a precise concept. This obviously influences, indeed hampers, judicial thought-processes.

In fact, the Italian code of criminal procedure says that in order to effect an arrest, which is always followed by imprisonment, there must be “indizi gravi e concordanti” – “serious and concordant clues” against the suspect. It is unlikely that mere clues would be considered sufficient by a bench of English magistrates. And in any case, the immediate decision as to whether this is enough to justify an arrest and imprisonment, with the granting or refusal of bail, is not taken by a bench of lay magistrates in a public hearing deciding on information placed before them by a separate body – the police. It is taken by a professional career judge deciding, behind closed doors, on information placed before him by a close colleague, – another judge who is in charge of conducting the investigation. Their first act then is to question the prisoner, who will be assisted by a lawyer, but behind closed doors.

So, the arrest is not the conclusion of the investigation, but its beginning. Indeed, what it says here, in the words of the European Court of Human Rights, is that “detention is intended to facilitate … the preliminary investigation”. Now is this compatible with our idea of the presumption of innocence?

It sounds like an echo of the old inquisitorial method of holding someone in captivity and torturing him until he confesses. Indeed, prison conditions, though not amounting to deliberate torture, can be highly stressful and damaging to a person’s mental (not to mention physical) equilibrium, especially when faced with a prospect of their lasting long into the future. They can induce a person, under questioning, to say whatever he thinks the investigators want to hear. In any event, lengthy preliminary detention is surely a punishment that is being meted out prior to conviction, and therefore can only be justified if based on a de facto presumption, in advance, that the suspect is guilty. This appears to us, in Britain, as not only unjust, but unfair and repugnant to our common sense. A system of justice must have two aims: to identify and punish the guilty, and to spare the innocent, who may be wrongly suspected. This system fails on both counts. If we arrest and hold in prison for long periods persons against whom no serious evidence has been gathered, how do we know we have targeted the right person? And if we are focussing on the wrong person, the real culprit will be getting off scot-free. This is surely not justice, neither from the standpoint of protecting the innocent, nor that of identifying and punishing the guilty. It is a primitive, hit-and-miss way of going about it.

The “presumption of innocence” is a value to which continental systems, and the ECHR itself, do pay lip service. The Italian and French constitutions, for example, do say that a suspect or defendant must be “considered” innocent until the final verdict of guilt has been pronounced. However, none of this appears to prevent them from treating suspects as if they were guilty. The de jure presumption of innocence written into their laws can be flatly contradicted by a de facto presumption of guilt when the laws are applied. It is worth noting in passing that the whole case in which Professor Ferrari Bravo was involved with about 70 other defendants was followed closely by Amnesty International which published a Black Paper with very serious criticisms and condemnations of various aspects of the conduct of this case by the Italian judicial authorities. And it is worth recording that at the end of his years of trials and tribulations, Professor Ferrari Bravo was actually acquitted on all counts. So, the Italian courts themselves did recognise in the end that he was innocent, and that he had suffered years of incarceration quite needlessly. If this kind of legal system can fit in with the Europeans’ notion of “respect for human rights and fundamental freedoms”, it surely does not fit in with ours.

The truth is that the European Convention on Human Rights is a thin blanket, designed to cover systems that are radically different. The differences go back at least 800 years – when we had Magna Carta which limited the powers of the Authorities over the individual, they got the Holy Inquisition, which increased and deepened those powers, and the methods of which were swiftly adopted by the absolutist secular rulers of the time, all over the continent. The French Revolution swept away much of the old order, but it was soon taken in hand by Napoleon, whose codes – still the basis of many European countries’ laws today – did not reject the inquisitorial basic principles, but adopted and adapted them from service of the church to service of the State. I give greater details in my essay “Magna Carta and Europe“, on the official Magna Carta celebratory website (my essay is prefaced by a disclaimer by the Magna Carta Trust and the Committee. I wrote and asked them for reasons why my contribution, alone, had been subjected to a disclaimer, but received no answer).