Monday, November 07, 2005

Dealing with vagueness

Rights may be expressed in unavoidably vague terms, so how can they be said to be absolute? An example is the right not to be subjected to inhuman or degrading treatment. Does it make sense to say that this right is absolute?

This was the fundamental question that confronted the House of Lords last week in R v Secretary of State for the Home Department, ex parte Adam [2005] UKHL 66 (3 November 2005). It was decided that this right is absolute, once a threshold level of inhuman or degrading treatment has been reached, and that the threshold is relative to the circumstances of each case. Furthermore, the threshold is a high one (except where pain and suffering are deliberately inflicted).

It may be clearer to say that, once treatment can properly be described as inhuman or degrading, then there has been a breach of the right. To say that the threshold is a high one (in particular, Lord Bingham, para 7) is really a way of saying that inhuman or degrading treatment must be relatively harsh. How harsh, depends on the circumstances. On this point, Lord Hope quoted, at para 54, cases from the European Court of Human Rights:

"But the European Court has all along recognised that ill-treatment must attain a minimum level of severity if it is to fall within the scope of the expression "inhuman or degrading treatment or punishment": Ireland v United Kingdom (1978) 2 EHRR 25, 80, para 167; A v United Kingdom (1998) 27 EHRR 611, 629, para 20; V v United Kingdom (1999) 30 EHRR 121, para 71. In Pretty v United Kingdom 35 EHRR 1, 33, para 52, the court said:

‘As regards the types of 'treatment' which fall within the scope of article 3 of the Convention, the court's case law refers to 'ill-treatment' that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of article 3. The suffering which flows from naturally occurring illness, physical or mental, may be covered by article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible.’

It has also said that the assessment of this minimum is relative, as it depends on all the circumstances of the case such as the nature and context of the treatment or punishment that is in issue. The fact is that it is impossible by a simple definition to embrace all human conditions that will engage article 3."

Significantly, the House of Lords in Adam rejected the spectrum analysis applied in the Court of Appeal, pursuant to which the question whether inhuman or degrading treatment amounts to a breach of the right depends on whether it is nevertheless justified, for example by government policy. Lord Brown, while not actually approving the spectrum analysis, came close to applying it by reasoning that the motive for the treatment may be relevant (para 94). Lord Hope, while not expressly distancing himself from Lord Brown’s approach, pointed out, at para 55, that it would be wrong to include government policy in the assessment of the threshold as that would allow proportionality in by the back door.

Given, then, that the concept of inhuman or degrading treatment is not qualified by considerations of government policy, how close can we get to a definition of it? Lord Bingham put it like this, para 8-9:

"… The answer must in my opinion be: when it appears on a fair and objective assessment of all relevant facts and circumstances that an individual applicant faces an imminent prospect of serious suffering caused or materially aggravated by denial of shelter, food or the most basic necessities of life. Many factors may affect that judgment, including age, gender, mental and physical health and condition, any facilities or sources of support available to the applicant, the weather and time of year and the period for which the applicant has already suffered or is likely to continue to suffer privation.
[9] It is not in my opinion possible to formulate any simple test applicable in all cases. But if there were persuasive evidence that a late applicant was obliged to sleep in the street, save perhaps for a short and foreseeably finite period, or was seriously hungry, or unable to satisfy the most basic requirements of hygiene, the threshold would, in the ordinary way, be crossed."

We might like to consider whether this approach is applicable, by analogy, to the determination of fair trial issues. Whether the appropriate circumstances amount to unfairness can depend on the assessment of factors such as whether the accused would be able properly to challenge the prosecution case, and whether the case would be determined by an unbiased tribunal. Once that arises (not: once that threshold is crossed), then there is a breach of the absolute right to a fair trial.

Leaving readers with that thought, I return to celebrating the 25th anniversary of the publication of my first article, which appeared in England, in what was then the leading criminal journal in the common law world, the Criminal Law Review.

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