Human Rights and the Criminal Justice System

Anthony Amatrudo, Leslie Blake

• Publisher: Routledge
• Year: 2014
• Print ISBN: 9781138665316
• eBook ISBN: 9781135145514
• Topic: Law
• Subtopic: Civil Rights in Law
• Index: Law

We now live in a world which thinks through the legislative implications of criminal justice with one eye on human rights. Human Rights and the Criminal Justice System provides comprehensive coverage of human rights as it relates to the contemporary criminal justice system. As well as being a significant aspect of international governance and global justice, Amatrudo and Blake argue here that human rights have also eclipsed the rhetoric of religion in contemporary moral discussion. This book explores topics such as terrorism, race, and the rights of prisoners, as well as existing legal structures, court practices, and the developing literature in Criminology, Law and Political Science, in order to critically review the relationship between the developing body of human rights theory and practice, and the criminal justice system.

This book will be of considerable interest to those with academic concerns in this area; as well as providing an accessible, yet sophisticated, resource for upper level undergraduate and postgraduate human rights courses.

Chapter 1 Human rights and contemporary Criminology

DOI: 10.4324/9780203797228-1

The public understanding of human rights has steadily increased its grip upon our social, legal, moral and political discourse and embedded itself in the routine ways in which we relate to each other, especially through our interactions with the public authorities, local government and the national state and to the Common Law itself. The existence of human rights has become a matter of common agreement. It is part of our everyday discourse. However, contemporary human rights language does throw up a plethora of definitions, rights and obligations hitherto not central to the everyday life of the citizen. This human rights language and its attendant discourse of competing definitions, rights and obligations is sometimes difficult to define and its extent is the matter of turbulent and on-going debate. Nonetheless, the notion that, at a basic level, human rights signify the core set of rights which relate to all persons, without exception, because they are all human beings and which underpin our social, legal, moral and political relationships is fundamental to modern political and social life. In terms of the criminal justice system, the human rights discourse has been focused upon such issues as noting the fairness, or otherwise, of laws, in terms of the way in which persons are treated in the criminal justice system (e.g. in the prison system and by the courts and the public authorities) and in terms of the law’s overall function in limiting such things as the extent of police powers, notably in relation to the investigation process, and the expectations of fairness towards suspects. It also covers the role of the state and its capacity to act in accordance with internationally agreed norms of behaviour relating to human rights. Human rights are then a huge subject area which covers individuals, collections of individuals, state actors and international bodies. All human rights claims are universal, moral and non-negotiable. The subject of human rights is one that has most academic purchase in law and political science; but nonetheless it has gained ground in a number of other disciplines, not least Criminology, a discipline contingent upon the law. This chapter will set out three paradigm treatments of human rights within academic Criminology, those of Manuel Lopez-Ray, Stan Cohen and Lucia Zedner, and show how they can throw light on contemporary theory and practice. Manuel Lopez-Ray was concerned with practical issues of human rights, public policy and the development of international standards of state behaviour. For Lopez-Ray, international law was vitally important because he saw it as best able to secure the universal demands of human rights in the criminal justice arena. Moreover, in terms of the development of the academic discipline of Criminology, he advocated that large-scale, international and state crime should be included as objects of study, not just those routine breaches of the criminal law which relate to delinquent behaviour. Stan Cohen’s work focused upon a form of social theory which built upon earlier work by Foucault and Rothman. His work uses a form of historical explanation to show how the role of the state has altered in relation to its control function and how this, in turn, has affected contemporary thinking about how. Lucia Zedner is concerned with ethical matters relating to the operation of the criminal justice system in late modernity. Her work on risk is attuned to such issues as the rights of the individual to go about their business unhindered, and issues of personal privacy and civil liberties. It is fair to say that the work of these three thinkers is archetypal of three distinct traditions, or approaches, to human rights within the criminal justice system.

Manuel Lopez-Ray

Manuel Lopez-Ray was Chief of the Social Defense Section of the United Nations and, during a long and illustrious career of public service, he held several professorships, notably at the University of Madrid, and he was a distinguished Visiting Fellow at the Institute of Criminology at the University of Cambridge. Lopez-Ray was an important figure internationally and served as a delegate, or legal adviser, to numerous high-level international conferences and seminars, including the historic 1954 United Nations Seminar on the Institutional Treatment of Juvenile Offenders. Lopez-Ray’s importance is in ensuring that criminological research was used to support the work of securing international and legally binding agreement on the treatment of persons who are the subject of criminal proceedings, especially in relation to prisoners and young offenders. He came to see that it was necessary that there was a rigorous evidence-base for work of governments and international bodies, such as the United Nations, and also that such work would necessitate international cooperation in order to arrive at sensible standards of treatment and human rights around the world. In 1953, he wrote International Cooperation by the UN in the Prevention of Crime and the Treatment of Offenders, in which he argued that standards of treatment, and human rights, for persons subject to the criminal justice system was not something that could be left solely to national governments. In 1945, the world had witnessed the dire results of allowing individual nations to set their own judicial standards without reference to international norms and conventions and it was Lopez-Ray’s view that, since the enterprise of human rights is a universal one, the United Nations was best suited to the work of defending, and promoting, the human rights and proper treatment of offenders, and others caught up in criminal proceedings, as its character is to be universal. Moreover, breaches of human rights should be dealt with under international law or by national laws that incorporate the principles of international law.¹ For Lopez-Ray, the most important thing was to gain agreement and then legally enforce those legally defined measures of treatment which equate to the basic human rights of persons; the more so in the wake of the excesses of the Nazi regime in Germany and those of the Japanese under its military regime during the 1930s and 1940s, which were detailed in a series of post-war trials and tribunals. Lopez-Ray is an important figure in the treatment of human rights by criminologists since he is the paradigm case of a scholar working in collaboration with others and utilising an empirical research-base in order to make a practical contribution to public policy. The importance of Lopez-Ray is in his legacy of linking the, often mundane, and local, aspects of the criminal justice system to much larger international and legally constituted justice frameworks; and in promoting a concern for the broadest possible canvas for criminological research and policy analysis.² He argued for a form of criminological explanation which also embraced state crime, war crime and genocide, as well as the common array of crimes which are usually taken to be the subject matter of Criminology. Lopez-Ray was, arguably, the most important criminologist of the modern era to focus upon state crime. A man of his times he saw war crimes and crimes of the powerful as within the purview of criminological analysis.³

1 Lopez-Ray, M. (1957) ‘The First UN Congress on the Prevention of Crime and Treatment of Offenders’, The Journal of Criminal Law, Criminology, and Police Science, 47 (5). pp. 526–538. 2 Lopez-Ray, M. (1982) ‘Crime, Criminal Justice and Criminology: an Inventory’, Federal Probation, 46 (2). pp. 12–17. 3 Lopez-Ray, M. (1970) Crime. Routledge: London; Amatrudo, A. ‘The Nazi Censure of Art; Aesthetics and the Process of Annihilation’ in C. Sumner (1997) Violence, Culture and Censure. Taylor & Francis: London. p. 63.

Lopez-Ray thought it was essential that the social policy nature of human rights should be stressed and accordingly he made sure that not only lawyers but also criminologists, sociologists, medical professionals and those concerned with practical social policy should be the ones determining the practical matters of human rights and rightful treatment in relation to crime, delinquency and prisoners that the United Nations was to be focused upon. In his role of Chief of the Social Defense Section of the United Nations, Lopez-Ray saw his task as one of structuring United Nations policy in collaboration with non-governmental organisations and a broad spectrum of experts; rather than to maintain a narrowly legal treatment of social defence. Social defence being best understood here as the title given to the work of the United Nations on the prevention of crime and the treatment of offenders, including juveniles. Lopez-Ray was a very practical man and, in his role as Chief of the Social Defense Section of the United Nations, he aimed to provide leadership so as to ensure that those on the ground could get support from the United Nations as well as technical assistance, to maintain effective criminal policy at the national level. From the outset, Lopez-Ray saw these tasks as being supported by a rigorous research-base and the effective dissemination of both good and bad practices.⁴

4 Lopez-Ray, M. (1957) ‘The First UN Congress on the Prevention of Crime and Treatment of Offenders’, The Journal of Criminal Law, Criminology, and Police Science, 47 (5). p. 528 (pp. 526–538); Lopez-Ray, M. (1982) ‘Crime, Criminal Justice and Criminology: an Inventory’, Federal Probation, 46 (2). pp. 14–17.

In 1955 Manuel Lopez-Ray convened a United Nations Congress at the Palais des Nations in Geneva, Switzerland. It was practical in focus and the main items on the agenda were the standard minimum rules for the treatment of prisoners, the question of prison labour and measures to prevent juvenile delinquency. The Geneva Congress was also keen to stress the social nature of the rehabilitative process. It was the largest Congress of its type and sixty-one countries were represented and 521 persons participated, including delegates from the Council of Europe, International Labour Organisation (ILO) and the World Health Organisation (WHO). The ILO was concerned about the issue of prison labour in terms of its use effect on the wages of law-abiding workers, as well as the conditions and remuneration levels for prisoners themselves. The ILO was also concerned to ensure that prison labour was not exploited, especially for public works. This was set out in a research submission to the Congress undertaken by the distinguished American sociologist from the University of Chicago, Prof. Ralph Eng-land.⁵ The 1955 Congress was ahead of its time in making a policy of non-discrimination explicit in the governance of prisons, and the proceedings noted: ‘and there shall be no discrimination on grounds of race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status’.⁶ The Congress adopted a very humanitarian approach to institutional prison life and argued that prisons should try to: ‘minimize the differences between prison life and life at liberty which tend to lessen the responsibility of prisoners or the respect due to their dignity as human beings’.⁷ The Congress advocated an approach to incarceration which stressed the prisoner’s continuing relationship with their community rather than their separation from it. This essentially communitarian view was way ahead of its time in the 1950s. It is to the credit of Lopez-Ray that this position was enshrined in the 1955 Congress Report and later United Nations policy on the rights of prisoners which is strongly oriented towards the practice of individualised treatment of inmates. The Congress conceived of prisons as a social service and as places for rehabilitation. Accordingly it argued for small prisons of no more than 500 inmates in order to achieve rehabilitative success; this is set out in Rule 63 of the Congress proceedings. The number 500 was arrived at by conceiving that this was, typically, the maximum number of prisoners that a governor might recall and that personal knowledge of prisoners was an important element in determining their treatment. Again we detect Lopez-Ray set this essentially practical criminological concern, namely prison welfare, to a tangible social policy outcome set out in an international report. Reverberations of Lopez-Ray’s (and the Geneva Congress’s) progressive views can also be seen in the decision of the European Court of Human Rights on the voting rights of prisoners, presently so controversial in the UK.

5 England, R.W. (1993) ‘Who Wrote John Howard’s Text? The State of the Prisons as a Dissenting Enterprise’, British Journal of Criminology, 33 (2). pp. 203–215. 6 Lopez-Ray, M. (1957) ‘The First UN Congress on the Prevention of Crime and Treatment of Offenders’, The Journal of Criminal Law, Criminology, and Police Science, 47 (5). p. 530. 7 Lopez-Ray, M. (1957) ‘The First UN Congress on the Prevention of Crime and Treatment of Offenders’, The Journal of Criminal Law, Criminology, and Police Science, 47 (5). p. 530; Lopez-Ray, M. (1955) ‘L’Ensemble des regles pour le traitement des detenus’, Revue International de Criminologie et de Police Technique, 9 (3).

Lopez-Ray was always alive to the necessity of ensuring that practical matters relating to criminal justice were dealt with fairly and with legal backing so as to ensure fair and humane treatment. He was also concerned to ensure international minimal standards of treatment, as, for example, in the case of prison overcrowding. He saw Criminology as contributing to the knowledge base needed to enact legislation around standards of acceptable provision, at the international level. He also understood that criminal justice policy required a range of expert knowledge to draw upon. He wrote:

Provided first that crime is considered as a sociopolitical phenomenon and subordinately as a behavioural problem, and secondly that whatever are the equations and theorems used and models formulated, all of them have an instrumental character and as such are subservient to the protection of human rights individually and collectively understood. The fact that Criminology cannot avoid its composite nature does not prevent it from becoming a real discipline…. The criminological curriculum should be completed by adding political science, sociology of law and of international relations, political sociology, history, economy, development and planning problems, human rights theory and practice, logic and methodology. Not every criminologist is expected to be fully acquainted with each of these disciplines but at least should know something about them. The ensemble would mean a more complete and coordinated interdisciplinary approach and that manuals should undergo substantial change…. Criminology as well as criminal policy should keep in mind that national, international and transnational crime are becoming more interdependent than ever.⁸

8 Lopez-Ray, M. (1982) ‘Crime, Criminal Justice and Criminology: an Inventory’, Federal Probation, 46 (2). p. 17.

What criminological understanding gained th...

Table of contents

• Cover Page
• half title Page
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• 1 Human rights and contemporary Criminology
• 2 European Convention on Human Rights and contemporary human rights thinking
• 3 Human rights in British and European law
• 4 Recent court cases and their principles
• 5 Race and gender issues and human rights
• 6 Victims, victimology and human rights
• 7 Terrorism: terror and its implications for human rights
• 8 The problems of a globalised world: transnational justice issues
• 9 The rights of prisoners
• 10 Conclusion
• Index