What Has the ECHR Done for Victims? A United Kingdom Perspective
| DOI | 10.1177/026975800401100201 |
| Published date | 01 November 2004 |
| Author | Fiona Leverick |
| Date | 01 November 2004 |
| Subject Matter | Article |
International Review
of
Victimology, 2004,
Vol.ll,
pp.I77-200
0269-7580/04 $10
©A B Academic Publishers
-Printed
in Great Britain
WHAT HAS THE ECHR DONE FOR VICTIMS? A
UNITED KINGDOM PERSPECTIVEI
FIONA LEVERICK2
University
of
Aberdeen, UK
ABSTRACT
This paper assesses the extent to which the European Convention on Human Rights creates rights
for victims within the criminaljustice process in terms of both rights to information and procedural
rights. It concludes that the right to investigation and information, as set out in Jordan, does cement
certain standards to which an investigation must conform in terms
of
victim information provision
and involvement, but that these can only be described as very basic minimum standards. In terms
of
obtaining reasons for decisions not to prosecute, the incorporation of the ECHR into UK
domestic law has not yet resulted in a comprehensive right to obtain reasons for decisions not to
prosecute. Indeed, any rights involved are derived from Article 2, the right to life, and Article 3,
the right to freedom from inhuman and degrading treatment, and so will not affect the vast majority
of
victims, who are victims of lesser crimes. In terms of procedural rights, the impact of the ECHR
to date is even more limited and, in the case
of
victim involvement in sentencing, may in fact serve
to limit victim input, rather than expand it. This and other potential conflicts between the rights
of
the accused and the rights of the victim are discussed.
INTRODUCTION
The notion that victims should be more closely involved in the criminal justice
process has undoubtedly been gaining ground within the United Kingdom in
recent years. This is evidenced by the increasing volume of academic interest
devoted to the issue and by the growing concern in government to victim related
issues within the criminal justice system. Both the UK Government and the
Scottish Executive have recently taken steps to improve the position of victims
in the criminal process (Scottish Executive, 2000, 2003; Home Office, 2003).
The European Convention on Human Rights' has traditionally been viewed
as a vehicle for improving the rights of suspects, accused persons and offenders,
r-ather
than one that has the potential to create enforceable rights for victims. This
is perhaps because it is easier to derive rights of this nature from the Convention
as they are more explicit and have been the subject of extensive case law,
especially in relation to Article 6, the right to a fair trial. However, it is arguable
that the quest to improve the experience of victims of crime is also assisted by
suggested that the Human Rights Act might be of considerable assistance to
victims in securing rights within the criminal justice process (see, for example,
178
Wadham
and Arkinstall, 2000; Gillespie,
2(00).
Asignificant period of time has
now
passed since the
Human
Rights Act
came
intoforce in the
UK
and it is worth
assessing the extent to which the
ECHR
has actually made any difference to
victims and their position within the criminaljustice system.
In this paper, Iintend to assess the impact that the
ECHR
has had on the role
of
the victim in the criminal justicesystems''
of
the UK, focusing on some recent
decisions
of
both the domestic courts, such as The Queen on the Application
of
Stanley vHer Majesty's Coroner
for
Inner North London' and the European
Court
of
Human
Rights," such as Finucane vUnited Kingdom/' Although an
overview
of
all areas in which the
ECHR
might ground rights for victims is
provided, the primary focus of this
paper
is on what might be termed rights to
information
and
procedural rights. As we will see, there have been some devel-
opments especially in relation to rights to information, although even these are
arguably limited to basic
minimum
standards.
The
more debatable issue, how-
ever, is the extent to which the
ECHR
is of assistance to victims in obtaining
procedural rights.
It
is this issue that the paper will focus on in most depth.
HOW MIGHT THE ECHR HELP?
At the outset, it is worth providing an overview
of
how
the
ECHR
might be
of
assistance to victims.
There
are perhaps three main areas in which the
ECHR
has
the potential to assist victims: in creating rights to State protection, substantive
rights
(or
rights to services) and procedural rights."
THE RIGHT TO STATEPROTECTION
The
first
way
in which the
ECHR
might make adifference for victims is in
establishing that the State has a duty to protect
them
against infringements
of
their Article 2(the right to life)
and
Article 3(the right to freedom from inhuman
or degrading treatment) rights. This includes the obvious negative obligation
of
the State
not
to infringe Article 2 and 3 rights directly'?
but
also the positive
obligation on the part
of
the State to protect victims from the violation
of
their
Article 2
and
3rights by other individuals. In Osman vUnited Kingdom'l it was
established that Article 2
of
the
ECHR
establishes two such separate
but
related
positive obligations on the part
of
the State: the duty to have effective criminal
law provisions to deter the commission
of
offences against the
person'f
and the
duty of
the
State to take operational measures to protect individuals whose lives
are at particular risk from the acts
of
another.13 The State has similar obligations
in relation to Article 314 and Article 8(the right to respectfor private and family
life). 15 ,
There have been some successful claims in this area. In relation to the first
of
these, to date, the only successful United Kingdom challenge on this basis has
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