This is an incredibly difficult piece to write, but possibly a profoundly important one to the debate as to how victims of childhood abuse should be treated. Victims, like others, have rights, but without expensive practitioners in law, it is very difficult to exercise these. It is even more difficult in the area of Human Rights, which enshrines the states responsibilities to take positive steps to ensure that the rights of the individual are protected. I write this as a lay person, with no legal training, but having sought some advice on this issue.
The Human Rights Act outlines core principles which should be protected – no matter what – and places the burden of responsibility to act – clearly upon the state and its agencies.
Victims are vulnerable, and the protection of their rights is critical to confidence in the Criminal Justice System. If Victims are being Victimised again – then the entire Criminal Justice System is unfit for purpose. The implications of this are huge, and lead to a two tier state – with a legal system for those who are fortunate, and frustration and mistrust for those who are not. It is where we are heading, and if we do not change our path, it is certainly where we shall end up!
In the area of childhood abuse, the difficulties become profound, given the emotional impact involved. This is compounded further in historical cases, where victims have created safety, and a world in which they can survive. It is pretty much universally recognised that the investigative and legal process is harrowing at best for victims. Suicides are not unknown – personal impact is huge – and well recorded. The court process is adversarial, and people have taken their own lives as a result – even in cases where guilt has been proven, and before the verdict has been delivered. Francis Andrade repeatedly said ‘I can see why nobody comes forward. I can see how people crack under the pressure.” “Recently, Tracey Shelvey fell to her death following a rape case retrial. Stephen Quinn ended his life last October just weeks before he was due to testify about the the abuse he’d suffered as a 13 year old.
It is clear that the system is not working. It is clear that the emotional impact is often unbearable and it is clear that this will happen again and again if nothing is done! “Grandstanding” about “Victim’s Codes” and “National Groups” has no relevance other than to provide the illusion of action!
So….what of the Human Rights of Victims? …….and the Human Rights Act 1998? http://www.legislation.gov.uk/ukpga/1998/42/schedule/1
The Act sets out general principles for application in a variety of circumstances, but gives a clear framework within which the state must manage its activities. Some provisions are absolute, and others have triggers at differing points – however, it is the responsibility of the state to protect the rights of individuals.
A summary of the key points can be found here:-
Some Relevant Highlights follow:-
Article 2 – Right to Life
The Human Rights Act requires the government to protect human life.
This means that nobody – including the government – can try to end your life. It also means that you have the right to be protected if your life is at risk.
Similarly, public authorities should consider your right to life when making decisions that might put you in danger or which affect your life expectancy.
The real question being whether authorities “know or ought to know of a real or immediate risk to life.” It is well established that this risk need not come from third parties, but a risk of suicide is included also. I refer you to the deeply saddening deaths outlined earlier.
If, the adversarial nature of the court process is such that people may take their own lives, then there is an obligation to deal with this. The court process itself, follows months or years of suffering for the victim, their family, and even those investigating the case.
Remember – the state has the responsibility to take positive action to protect its citizens from this!
Article 3 –Protection from torture and mistreatment
The Human Rights Act protects you from:
- torture (mental, physical or both);
- inhuman or degrading treatment or punishment; and
- deportation or extradition (being sent to another country to face criminal charges) if there is a real risk you will face torture or inhuman or degrading treatment or punishment
Public authorities must not inflict such treatment on you, and they must also protect you from this treatment where it comes from someone else. For example, if they know you are suffering inhuman or degrading treatment, they must intervene to stop it.
So, given our understanding of the impact of historical investigations, it is the responsibility of the state to put in place proper support to deal with this, otherwise it is culpable for the outcomes and in breach of the most fundamental of Human Rights. This is not optional, but a universal Human Right
Article 8 – your private and family life
You have the right to respect for your private life, your family life, your home and your correspondence. But at the same time you must also respect the rights of other people.
Your private life
The right to a private life means that you have the right to carry on your life privately, without government interference, as long as you also respect the rights of other people.
The courts have interpreted the concept of ‘private life’ in a very broad way. It covers things like your right to choose your sexual identity, your lifestyle, and the way you look and dress.
It also includes your right to control who sees and touches your body. For example, this means that public authorities cannot do things like leave you undressed in a busy ward, or take a blood sample without your permission.
The concept of private life also covers your right to develop your personality and to develop friendships and other relationships. This includes a right to participate in essential economic, social, cultural and recreational activities of the community.
In some circumstances, public authorities may need to take steps to support you to realise your right to a private life, including your ability to participate in society.
The right to private life means that the media and others can be prevented from interfering in your life.
It also means that personal information about you (including official records, photographs, letters, diaries and medical records), should be kept securely and not shared without your permission, except in certain circumstances.
Many Victims find relationships and family life impossible – and are thus denied their right to family life. Often, privacy is taken away, and again personal choices removed – authorities have an obligation to act! Borderline or Dissociative Personality Disorder is common amongst people who have been abused, and thus agencies may have a commitment to ensure re-integration.
Article 14 Protection From discrimination
Discrimination occurs when you are treated less favourably than another person in a similar situation and this treatment cannot be objectively and reasonably justified.
It is important to understand that the Human Rights Act does not protect you from discrimination in all areas of your life. Instead it protects you from discrimination in the enjoyment of those human rights protected by the European Convention of Human Rights. This reflects the core idea that all of us, no matter who we are, enjoy the same human rights and should have equal access to them.
There are other laws that protect you from discrimination more generally.
The protection against discrimination in the Human Rights Act is not free-standing. In other words, in order to rely on this right, you need to show that your ability to enjoy one or more of the other rights in the Human Rights Act has been affected by the discriminatory treatment. However, you do not need to prove that this other human right has actually been breached.
The Human Rights Act prohibits discrimination on a wide range of grounds including ‘sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’.
The case law relating to this right has shown that the term ‘other status’ includes, among other things, sexual orientation, illegitimacy, marital status, trade union membership, transsexualism and imprisonment. It can also be used to challenge discrimination on the basis of age or disability.
If Victims are part of a group which is not afforded these basic human rights – this is likely to apply!
It is unusual for any large group to have issues amongst a number of Articles,however, Keir Starmer’s comments highlighting the possible incompatibility between the Criminal Justice System, and The Human Rights Act might possibly have some substance!