Interviewer: Andy Tootell (Ideas Lab)
Guest: Dr Bharat Malkani
Recorded: 03/02/2012
Broadcast: 06/02/2012
Intro VO: Welcome to the Ideas Lab Predictor Podcast from the University of Birmingham. In each edition we hear from an expert in a different field, who gives us insider information on key trends, upcoming events, and what they think the near future holds.
Andy: Today we’re with Dr Bharat Malkani who is a lecturer at Birmingham Law School at the University of Birmingham and who also runs the Birmingham Free Legal Advice Group. Welcome, Bharat.
Bharat: Hi there.
Andy: So can you tell me a little bit about what you do?
Bharat: Yes, I’m a Lecturer in the Law School and I lecture and I research in the fields of human rights and criminal justice. I look at the relationship between those two fields of law and I also run the Birmingham Free Legal Advice Group, a joint venture with the Birmingham offices of Mills & Reeve, a national firm of solicitors, and we offer advice on a whole range of issues – family law, debts, employment and so on.
Andy: Now today we’re going to be talking about human rights, which is one of the areas that you specialise in. Human rights always seems to be in the news and most recently David Cameron was speaking in Strasbourg and he sort of described the European Court of Human Rights as a ‘small claims court’ for people who had run out of the options at the national level and also said that it was getting to the point where human rights were being discredited and that people were becoming quite cynical about them. Was he right?
Bharat: I don’t think so. I think he’s being overly harsh about human rights and the European Human Rights Court. Certainly there’s always going to be some cases which seem very strange, such as prisoners arguing that their right to freedom from cruel and inhuman treatment is being violated because of the clothes they have to wear and so on, but in the vast, vast majority of cases, very vulnerable people are getting the protection that they need through human rights law. As for David Cameron’s claim that the European Court of Human Rights is becoming nothing more than a small claims court, I think that’s an exaggeration to say the least. Yes, a lot of individuals do apply to the European Court of Human Rights to have their cases heard but the European Court of Human Rights does have a system whereby it filters out cases that are deemed not worthy of consideration, for want of a better phrase. So for example between 1966 and 2010, 97% of all cases that have gone from the United Kingdom to the European Court of Human Rights have been deemed inadmissible. That basically means that the European Court of Human Rights has said that this case has no merit to even consider or the individual hasn’t gone through the domestic remedies properly and so the European Court of Human Rights in those 97% of all cases has ordered the United Kingdom to do absolutely nothing.
Andy: There was a Wall Street Journal article earlier in the week actually that was called ‘The Decline of Human Rights’, which sort of said towards the end of the article that the concept of Human Rights was something that needed to be saved at the moment and that those rights are currently being used as a weapon against democracies and as a shield for terrorists. Is that fair?
Bharat: I think you’re right that human rights do need to be saved but I would certainly disagree with the article at least when it says that they’re being used against democracy and to shield terrorists. I think we have to remember what the whole point of human rights law is for and to do that you have to go back to the end of the Second World War really and look at the international movement to protect human rights at that time. Coming out of the Second World War we see the horrors of Nazi Germany and how Jewish and other non-Aryans were treated and for that reason the international community back in 1945 got together and said ‘we need to have an international system to make sure that these events don’t happen again’ and that’s why in 1948 we have the Universal Declaration of Human Rights. The Universal Declaration of Human Rights has been the cornerstone for modern international human rights law; it all stems from that universal declaration and all the States of the world at that point agreed that everybody is born with a sense of dignity that cannot be violated, especially not by the State. Human rights laws are there to protect the individual from the State and it doesn’t matter where that individual comes from, who they are, what they look like or what they’ve done, really, it’s there to protect everybody. So yes, even terrorists and potential terrorists have a certain sense of dignity, the argument goes, that cannot be violated. That’s not to say that they should never be punished for what they’ve done. Of course they should but it just means that that treatment has to be meted out with their rights in consideration. Human rights are used to uphold democratic principles, not used against democratic principles. We’ve got to remember that human rights laws also protect us from a slippery slope. If we start detaining terrorist suspects for 90 days without any trial, where does that lead to next? If we start allowing ourselves to torture terrorist suspects do we then allow ourselves to torture normal criminals? I’m not suggestion that if we do start deporting terrorists we’re suddenly going to become like how Nazi Germany were when they treated Jewish people but we need that barrier to make sure that we never ever head in that direction.
Andy: Human rights was also discussed in the context of the UK riots that happened last August in terms of the harsh sentences that were meted out to those who were arrested and charged.
Bharat: This is where human rights law at least for me becomes really interesting. When we think of the rights of vulnerable children in Africa or the rights of black people and ethnic minorities to be free from discrimination, the vast vast majority of people think yes, they should have their rights protected because they’ve not done anything wrong. When it comes to looking at criminals though, there is this gut feeling in a lot of people that says well, if they’ve broken the law, if they’ve gone against society then they don’t deserve to have their rights protected and this is why that balance between human rights law and the need to have an effective criminal justice system that has its public confidence, is really, really interesting. With respect to the riots we clearly needed to do something to make sure that these riots never happened again - they were extraordinary - and the way to do that is to tell the public if you engage in activity like this again, you will be sentenced to these sort of terms of imprisonment. So the famous example that is often given is the case of the two men who were jailed for four years for posting a message on Facebook -
Andy: For the riot that never happened, ultimately.
Bharat: Exactly, yeah, they were jailed for inciting disorder, not for actually engaging in disorder. They put messages on Facebook to suggest a riot but never went ahead with it.
Andy: I don’t think they even left their bedroom did they?
Bharat: No, they didn’t and they apologised, they took the message down the next day and they realised straight away that that wasn't very funny but we had this deterrent message being sent out by sentencing them for four years. Now there is a need for deterrent sentences. We do need to send a message to the broader public to deter people from committing crimes but we also have to have proportionate sentences. We also have to have sentences that reflect the gravity of the offence committed and the moral culpability of the offender. Now in this case the gravity of the offence committed wasn’t so big. No riot had actually occurred. The moral culpability was also questionable because they apologised for what they did. They took the message down straight away and they didn’t defend their actions. They knew that was a silly thing to do. So you think four years is quite disproportionate -
Andy: It’s a steep sentence.
Bharat: It is a steep sentence, yes, but where do we draw the balance? How do we get the message out to other people that that sort of behaviour just simply will not be tolerated? And there are always going to be some cases where the sentences seem very, very harsh but as long as we get it right in the broad majority of cases I think it’s just going to be a perennial attempt by the courts to just sort of strike that fine balance between having a sentencing system that instils confidence within the public while also being proportionate. There was a survey on the Guardian website about the sentences that were handed down for the Facebook rioters. The question they asked was ‘Is it fair to have severe sentences as a deterrent?’ and 58% of people said ‘no, it is not fair’, 42% of people said ‘yes, it is fair’. 58/42 is quite a close call.
Andy: It is, yeah.
Bharat: It’s not clear one way or the other which way the public want to go.
Andy: We’ve talked about human rights in terms of sentencing. Are there any other areas of criminal justice that require consideration of human rights?
Bharat: Well yes, human rights considerations crop up at every stage of the criminal justice process really from the moment you’re stopped and searched by the police and straight through arrest and being put on trial, sentence and punished, even through the maintenance of criminal records afterwards. I think the really interesting ones that are coming up are obviously prisoners’ rights to vote which is where this whole debate between the European Court of Human Rights and our laws really stem from. So that’s going to be an interesting issue. And access to legal justice, there are all sorts of cuts coming into legal aid, that’s going to affect people’s rights to access to a lawyer and certainly we run the Free Legal Advice Group here and we’ve seen an influx of people calling because they simply cannot afford solicitors fees but they don’t qualify for legal aid and there’s a big gap there. There’s going to be a lot of people who fall in that gap so access to legal justice, prisoners’ rights to vote I think are going to be the really interesting ones coming up over the next year or two.
Andy: Dr Bharat Malkani, thank you very much.
Bharat: Thank you.
Outro VO: This podcast and others in the series are available on the Ideas Lab website: www.ideaslabuk.com. On the website, you can find out how to e-mail us with comments, questions or suggestions for future topics for the podcast. There's also information on the free support Ideas Lab has to offer to TV and radio producers, new media producers and journalists. The interviewer and producer for the Ideas Lab Predictor Podcast was Andy Tootell.