Analysis: Tony Kelly of Justice Scotland

By TONY KELLY QC
Published on 28/10/2012 00:00

FOR far too long human rights were understood to be synonymous with prisoners’ rights.

The criminal justice system has focused upon criminals. That has changed and the course of change is set to continue.

It has also long been recognised that the criminal justice system is reliant upon the courage of victims in coming forward. It is important to note that the role of victims and all that they have to endure when they report crime – through investigation to prosecution – has been recognised within the Scottish system for a considerable period of time. That has been the subject of intense scrutiny and consideration.

In a report in 2006, our prosecution service looked specifically at the reporting and investigation of sexual offences. Its report pulled no punches. Consequently, many lessons were learned and the manner of treatment – though not up until that point found to be insensitive or unthinking – has greatly improved.

This important evolution has been recognised in international and domestic settings. In the context of the European Union, the strengthening hand of the victim and what he or she can demand as a matter of right has been codified.

Taking the Strasbourg jurisprudence one step further, the High Court in England recently awarded damages to a victim who was not sufficiently protected in an appalling long-running course of harassment. The Crown Prosecution Service failed to institute proceedings and damages were awarded for that failure, which was said to amount to a breach of the positive obligation owed under Article 8 of the convention by the state to a victim.

• Tony Kelly is a human rights solicitor and chairman of Justice Scotland