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Archive for January, 2013

Class Justice

Class justice means, essentially, that the principles of justice operate inequitably in favour of one class of people in relation to other classes. A basic definition of “class” is a division of society according to status, or a number of individuals possessing common attributes and grouped together under a general or class name.
Class justice functions when justice is done in favour of one class against another. In England in the early twentieth century, this means that justice can often be seen to operate in favour of the rich and powerful against the poor and the weak.
Class justice is exemplified by the prosecution of petty offenders against property while major criminals can appear to be immune.
This is not purely a theoretical concept. It has serious implications for people in their everyday lives.

Crown Immunity
The case of John Wynne and the Royal Mint
The case of John Wynne, employed by the Royal Mint at Llantrisant, South Wales, has highlighted the legal rules and procedures surrounding Crown immunity as a clear example of class justice. The facts, so far as reported in the national press, were that in 2001 Mr Wynne (W), suffered fatal crushing injuries when a six-tonne furnace fell from a crane. W, aged 50, had worked in the metal rolling department of the Mint for 21 years.
The Health and Safety Executive (HSE) found itself unable to prosecute the Mint for breaches of health and safety legislation. Instead, it brought Crown Censure proceedings. At the hearing of these proceedings it was stated that the Mint had failed to follow safety procedures. The hearing was not open to the public. A report of the hearing was sent to the government, the Royal Mint and the HSE. W’s widow was not entitled to a copy of the report.
W’s widow is reported to have commented that she was shown pictures at the hearing which showed the furnace hanging from a crane, but not sitting on the hook properly. The furnace was balancing on the top and it fell. It had fallen once before, and no-one was hurt. The Mint’s management had not carried out safety checks. If they had done so, they would have realised that it was faulty and the accident could never have happened.
An HSE inspector is reported to have made the following points to the hearing:
• W’s death was an accident waiting to happen.
• There was sufficient evidence to bring a criminal prosecution against the Mint.
• Although Crown property, including the Mint, has to comply with health and safety regulations, it cannot be prosecuted because the Crown cannot prosecute itself.

The shadowy issue of Crown immunity arises in the context of both criminal and civil proceedings. Crown immunity is an ancient, obscure and complex area of law with significant practical implications. The concept is inextricably bound up with the development of the unwritten British Constitution and the relationship between the monarch, central government, legislation and the enforcement of criminal law.

Criminal proceedings
The following points may help with an understanding of Crown immunity:
• The literal meaning of “Crown” is “an ornamental badge of regal power worn on the head of sovereign princes”. In general terms, it means the monarch. This involves a consideration of the constitutional position of the monarchy as the head of state.
• In strict legal and constitutional theory, legislation cannot come into force until it has received the Royal Assent, that is, consent by the monarch.
• The “Crown” now applies to the collective structure of central government in the United Kingdom.
• The monarch is personally immune from prosecution or criminal proceedings. This is one reason why the execution of Charles I was deemed to be illegal after the restoration of the monarchy.
• In constitutional law, the King (or Queen) can do no wrong. He/she is never a minor and never dies.
• Crown immunity also applies, by implication, to the ruling sovereigns of other states. This does not extend to deposed or exiled sovereigns who happen to be within the jurisdiction. The authority for this is cited by Archbold (the barristers’ bible) as R v Mary, Queen of Scots (1586).
• Criminal prosecutions are conducted on behalf of the Crown and generally brought in the name of the Queen. Criminal cases are cited as “R v …” which is an abbreviation of “Regina v…”.
• The general principle is that the Crown is not bound by any statute. This principle may be displaced where there is an intention stated in the statute that the Crown should be bound.
• The principle extends to Crown servants acting in the course of their official duties, Crown property and property occupied by the Crown for public purposes. It covers, for example, the Ministry of Defence, the Prison Service and the Royal Mint.
• Section 48 of the Health and Safety at Work, etc., Act 1974 states, in summary, that sections 1 to 54 of the Act, except for sections 21 to 25 and 33 to 42, shall bind the Crown. But this does not mean that criminal proceedings may be brought against the Crown. It should also be noted that liability under the 1974 Act cannot, in itself, give rise to civil liability.
• It is also significant that the Working Time Regulations 1998, regulation 37, states in summary that the regulations have effect in relation to Crown employment. No act or omission by the Crown shall make the Crown criminally liable, but the High Court or the Court of Session in Scotland may make a declaration that such act or omission is unlawful. There appear to be no reported examples of such declarations.
Crown Censure proceedings are brought by the Health and Safety Executive as an alternative to criminal prosecutions. These proceedings have no formal legal basis and it is difficult to find information about them through standard sources. It is thought that the HSE has reached agreement with the government that the proceedings will be used in appropriate circumstances. The proceedings have been used in a number of reported cases, mostly involving the prison service and the Ministry of Defence.
The proceedings are not open to the public. Trade union representatives may be invited to attend. The procedure is not a trial and it is chaired by a senior HSE inspector. The procedure has no statutory basis but is set out in a Cabinet Office Personnel Information Note. The aim of a Crown Censure hearing is to seek acknowledgment of the problem and to improve standards of health and safety. The absence of an agreed and documented procedure led to “some difficulties”. This resulted to the issue of the Cabinet Office note.


South Africa and Human Rights

Albie Sachs considers whether the obligation on the state to promote socio-economic advance should be made a constitutional duty. He comments that where the struggle for survival is overwhelming, the freedom to vote and the right to criticise the government risk becoming devoid of practical meaning. Individual human rights can guarantee to people dying of hunger the inalienable right to use their last breath freely to curse the government.
In South Africa, the judicial enforcement of socio-economic rights poses the question of whether social and economic rights can be regarded as fundamental rights enforceable directly by the courts, and if so, how?
Sachs tells how a group of black South African students set up an Anti-Bill of Rights Committee. They regarded the Bill of Rights as a document established by the privileged white community to block future moves towards social and economic transformation. Whites owned 87 per cent of South African land and 95 per cent of its productive capital. Property rights guaranteed by the Bill of Rights meant that the poor would remain poor and the rich would get richer.
Sachs was detained in solitary confinement for 90 days without charge, trial, or access to lawyers on suspicion that he had information which could help security forces in dealing with anti-state activity. Following the 90 day period, he was immediately detained for another 90 days.
Sachs states that the law created a vacuum, a space with a totally extralegal area, with only the conscience or system of command of the authorities to prevent abuse if people were locked up. Basic decisions on guilt or innocence were made by the security police. The exceptional became the normal.
Sachs’ practical experience is that, once the door is opened to diminishing respect for the rule of law, the door is closed to the rule of law, to habeas corpus, to standards of interrogation, to the right to a fair trial. The opening or the closing of the door is never enough for the security people.

During the drafting of the South African constitution, a question for discussion was whether social and economic rights, for example the right to health, housing, food and education, should be included as fundamental rights.
This discussion centred on whether “bread rights” should be on a par with “freedom rights”.
The 1996 Constitution of the Republic of South Africa sets out, in simple and transparent terms, a number of social and economic rights. It has been described as the most progressive Constitution in the world.
For example:
• Everyone has the right to have access to adequate housing.
• Everyone has the right to have access to health care.
• The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of these rights.
This has been considered by the South African Constitutional Court in a number of cases, including the following:
• Soobramoney v Minister of Health, KwaZulu Natal (1998). S suffered from chronic renal failure. He complained that the state’s failure to provide him with continued dialysis amounted to a failure to take active measures to protect his right to life under the Constitution. The Constitutional Court decided that there had been no breach of the Constitution because chronic conditions were not to be given the same priority as emergency medical cases. S died. Justice Albie Sachs later commented that access to resources, unlike the right to free speech or to vote, had to be rationed. The queue for resources must be fairly established and non-discriminatory. The Court could not say that S should go to the head of the queue.
• Government of the RSA v Grootboom (2001). G and others were squatters on privately owned land. The owner applied to the local authority for their eviction. The Constitutional Court was asked to interpret the sections of the Constitution which guaranteed the right to access to adequate housing and gave children the right to shelter. The Court ruled that the state had an obligation to establish a coherent and coordinated housing programme. This obligation had to be concentrated on people in crisis. Those whose needs were most desperate had a right to emergency relief and shelter.
• Minister of Health v Treatment Action Campaign (2002). The South African Health Department refused to generally supply Nevirapine, a drug for treating HIV positive pregnant women. The Constitutional Court ruled that the Health Department was in breach of its obligation under the Constitution to provide access to health care in a reasonable manner and taking account of pressing social needs. The Department was ordered to supply the drug at all public hospitals and clinics.

Crucially important issues like these have not been discussed in the English courts or by the human rights industry.
Generally, individual human rights in the UK are individually enforced and protected. The involvement of a number of “celebrity” solicitors and barristers can sometimes be seen to approach a cult of personality.
The Human Rights Act is incomplete. It should be amended to include social and economic rights, following the South African model.
The protection of human rights, and the enforcement of the 1998 Act, should not be the prerogative of individual lawyers.