Anthony Amatrudo - Human Rights and the Criminal Justice System

Human Rights and the Criminal Justice System

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.

Anthony Amatrudo is currently Reader in Criminology at Middlesex University, a Visiting Fellow at St Edmunds College, Cambridge, and Visiting Scholar at the Institute of Criminology, University of Cambridge. He was a Senior Visiting Fellow at the Nathanson Centre for Transnational Human Rights, Crime and Security at Osgoode Hall Law School, Toronto, in 20122013.

Leslie William Blake is a Lecturer in Law at the School of Law of the University of Surrey and a member of the Committee of Islington Legal Advice Centre, London. He was called to the Bar by Lincolns Inn in 1972.

Human Rights and the Criminal Justice System

Anthony Amatrudo and Leslie William Blake

First published 2015

by Routledge

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and by Routledge

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a GlassHouse Book

Routledge is an imprint of the Taylor & Francis Group, an informa business

2015 Anthony Amatrudo & Leslie William Blake

The right of Anthony Amatrudo and Leslie William Blake to be identified as authors of this work has been asserted by them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988.

All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers.

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British Library Cataloguing in Publication Data

A catalogue record for this book is available from the British Library

Library of Congress Cataloging-in-Publication Data

Amatrudo, Anthony, author.

Human rights and the criminal justice system / Anthony

Amatrudo, Leslie William Blake.

pages cm

1. Human rights 2. Criminal justice, Administration of I. Blake, Leslie William, author. II. Title.

K3240.A465 2014

364.01dc23

2014010599

ISBN: 978-0-415-68891-8 (hbk)

ISBN: 978-0-203-79722-8 (ebk)

Typeset in Galliard

by Wearset Ltd, Boldon, Tyne and Wear

Contents

I am grateful to the Nathanson Centre for Transnational Human Rights, Crime and Security at Osgoode Hall Law School in Toronto for the award of a Senior Visiting Fellowship 20122013, which directly assisted the writing of this book. My time in Canada was happy, productive and very cold. I especially enjoyed the company, intellect and wit of Margaret Beare, James Sheptycki, Dan Priel and Francois Tanguay-Renaud. During my frequent visits to the Max Planck Institute for Foreign and International Criminal Law in Freiburg, I have benefited from outstanding research resources and urbane company. I have always enjoyed my time at St. Edmunds College, Cambridge, not least for the unparalleled food, wine and intelligent conversation at High Table. St. Edmunds College will always be a sort of other home for me to relax, reflect and write in. I think clearer there. The Master and Fellows of St. Edmunds College, Cambridge, have three times elected me to a visiting position at the college and it is because of this honour that I have published so much. My work for the Cabinet Office has been invaluable to my understanding of the practicalities of the codification of rights discourse. My thanks to: Hans-Jorg Albrecht; Blackheath Rugby Club; Jake and Dinos Chapman; John Charvet; Robert Fine; Loraine Gelsthorpe; Felicia Herrschaft; Andreas von Hirsch; Ronnie Lippens; Steven Lukes FBA; Robert Reiner; Vincenzo Ruggiero; Magnus Ryan; George Steiner FBA; Colin Sumner; and the late Brian Barry FBA and David Thomas QC.

ATA, March 2014

I would like to thank my colleagues and friends at the University of Surrey, School of Law: Amanda Cleary, Kanstantsin Dzehtsiarou, Rob Jago, Theodore Konstadines, Rosalind Malcolm and Jane Marriott. I also acknowledge the help and advice over many years of Gerald Bowden, formerly MP for Dulwich, John Pointing of Middle Temple and Tim Sinnamon of the University of Buckingham. The support and help of the library staff at Lincolns Inn has been invaluable.

LWB, March 2014

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 laws 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 Cohens 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.