Opinion: The Criminal Law and Incompatibility with Human Rights
| Author | Alec Samuels |
| DOI | 10.1177/002201830206600502 |
| Published date | 01 October 2002 |
| Date | 01 October 2002 |
| Subject Matter | Article |
OPINION
The Criminal Law and Incompatibility
with Human Rights
Alec Samuels
We were led to believe
that
the
English criminal law
and
the
European
Convention on
Human
Rights (Human Rights Act 1998) would sit well
together
and
there
would
be no problems. The criminal law
and
human
rights law
would
be compatible; the criminal law
would
more
than
measure up to
human
rights. English statutory criminal law was to be
construed so as to conform to
human
rights, i.e. 'so far as it is possible to
do so, primary legislation
and
subordinate legislation
must
be read
and
given effect in a way which is compatible with
the
Convention rights'
(s. 3(1)).
If
a conflict could
not
be avoided,
the
judges could
make
a
declaration of incompatibility. The Minister
would
then
consider
the
matter
and
put
it right.
If
not,
any
aggrieved citizen could still take
the
matter
to the European Court of
Human
Rights at Strasbourg, which
would
put
it right, if necessary by requiring
the
UK
government
to
put
it right. No problem.
However, it has
not
worked
out
quite like that. Problems have arisen.
The classic case is the relevance
and
admissibility of previous sexual
experience of
the
victim in a rape case
when
consent is in issue.
In
the
nature
of things, in
our
contemporary, immoral
and
violent
society, a
woman
is vulnerable to rape. She is entitled to autonomy,
independence, integrity, respect,
and
protection.
For
the
victim (V) it can be very undignified, distressing, humiliating,
harassing,
and
terrifying to be cross-examined on past sexual experi-
ence. The fact
that
she may have
had
previous sexual experience with
the
defendant (D) or
with
athird party (C) does not, in itself,
mean
that
she consented on the occasion in question. There can be no presumption
that
the
unchaste
woman
always gives consent. The defence is trying to
put
her
on trial for
her
morality whereas, in fact,
the
trial is a trial of D
for
the
alleged rape of
V.
The
jury
may
be distracted from
the
real issue.
If
V is to be cross-examined in court on all
her
previous sexual experi-
ence, she may be reluctant or unwilling to report
the
matter
to
the
police,
and
the
rapist
may
escape conviction
and
sentence.
However, D is charged with amost serious crime
and
must
be entitled
to a fair trial (Article 6 of
the
European Convention on
Human
Rights),
an
absolute right (Brown vStottl) . D
must
be entitled to challenge
the
credibility of V.
If
V
and
Dhave in fact
been
cohabiting or engaging in
frequent sexual intercourse with
one
another, indicating an attitude or
mindset on V'spart, or if Vhas in fact
been
'sleeping
around'
with
all
and
sundry,
then
it defies
the
common
sense of
the
layperson
that
such
1[2001) 2 WLR 817, PC.
385
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