Sowing a 'Culture of Conviction': What Shall Domestic Criminal Justice Systems Reap from Coercive Human Rights?

Abstract

This article assesses the implications of duties to mobilise criminal law developed in European Court of Human Rights case law for domestic criminal justice systems. It shows that the Court tends to present criminal accountability as indispensable to protect human rights. This approach may foster a ‘culture of conviction’ at the domestic level whereby punishment is seen as the end to pursue whatever the cost. While the jurisprudence currently refers to the duty to punish as an obligation of means, increased concern with the efficiency of the criminal system in preventing crime is leading the Court to consider whether adequate punishment has been imposed. Through the case study of the UK Modern Slavery Act 2015, this article shows how such uncritical invocation of conviction and punishment in practice encourages harsher prison sentences, greater power to prosecute and convict, and extensive pre-emptive measures. Conversely, criminal justice reform initiatives, directed at reducing unnecessary criminalisation and implementing alternatives to prison, are totally neglected.

Keywords: human rights, criminal law, European Court of Human Rights, Modern Slavery Act 2015