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Judgment versus Perception - is human rights a must?

Updated: May 14, 2021

Due to their nature, the right to life, liberty, rights to a fair trial, freedom of movement, freedom of choice, association and right to marry and private family life, presumption of innocence etc are inalienable rights. These are all, one way or the other enshrined in the Human Rights Act 1998. It does not mean that there are no restrictions, although encroachment is steadily on the rise. This topic does not even advocate new measures but clearly demonstrates that there is room for much improvement.


Introduction


We compare 2 recent decisions concerning a Romanian Truck Driver and a 21 year young Computing Student.


In May 2020, a computing student, was found in possession of a hideous amount of sexual images of a child (or children). He had 177 Category A images, 157 Category B images and 159 Category C images. His immaturity of age, health or even lockdown might have served his defence. Judging from the available facts, his suspended custodial sentence of 12 months, on 3 counts for making indecent images, sounds lenient. Arguably, this is also where the question of gravity of offence should justify the severity of sentence. Collecting one image is an offence, collecting up to 500 images appears to be the same offence. But we cannot argue if we do not know: -


1. what he did with the images;

2. the position of the law;

3. why he collected even one or so many; and

4. how they came to be in his possession.


In addition, the leniency of sentencing suggests that the ones who permitted or facilitated the taking of the photos, or physically assaulted the children, would face a harsher sentence.


What normally informs Judgment


Traditionally, the background of Judges or Magistrates are known to inform their decisions. How far removed from the realities of the perpetrators or victims for example. Their support for Government policy. Common decency. Their firm or lax upbringing. Faith or belief system. Prevailing culture, influence from friends or associates and so on. They are human afterall, with bias, bribery, political leanings and other idiosyncrasies not necessarily excluded from the laziest or unfit, among them. Albeit they are standard bearers and expected to be beyond reproach.


Notwithstanding, there are basic considerations which must rightly inform sentencing across the board, as follows: -


1. Severity of offence eg. use of weapons, violence, murder etc

2. Age of victim

3. Age of offender

4. Maturity, vulnerability of offender along with mental capacity

5. Relevant criminal record

6. Cooperation with law enforcement.

7. Remorse

8. The law

9. Sentencing guidelines

10. Evidence

11. Other mitigating factors


The applicability of Human Rights


What appears to be lenient does actually serve as a deterrent by the fact that he is now a registered sexual offender. Nobody wants to be on the sexual offenders register. Not just because of embarrassment, but because there are cases where even innocent people have been mistakenly harassed and even murdered, as suspected registered child offenders. In view of this, how secure or humane it is to keep people on any criminal register in modern vigilante societies remains debateable. This raises issues of what serves his human rights and the protection to private or family life. This of course requires a balance of free speech, right to information and the question whether spreading vicious or malicious rumours can be considered a human right, in civilised society. It is in the interest of justice that human rights are respected, in order to prevent cases of mistaken identity.


In addition, when society acquiesced to this form of punishment, did he even consent? Given, these laws might have been formed before he attained voting age. One of the reasons why, laws are not enough. Although within the rehabilitation process, there is the opportunity to discover what caused the cracks in his moral foundation. Likewise, if civilisation is to survive, establishing norms, Christian and common value systems are inevitable for the purpose of prevention. Discipline can only work so far and prevention remains key.


Consistency


Let us compare Mr Miah’s case with that of a Romanian Truck Driver who received a 3 year 8 month custodial sentence, for attempting to smuggle 17 people out of the UK. With 1 month for possession of a controlled substance. Granted, one or 2 or all 17 people could have suffocated in his truck. Or could have even met with worse fate at their destination. Where they might have experienced conditions worst than slavery. Seventeen adults versus 500 hundred children - which sentence is more deserving? What could have informed this decision, being an inchoate offence. A stricter Judge, perhaps? Perhaps his sentence is longer because punishment ends upon his release.


A question of Proportionality


Aside from his suspended sentence, Mr Miah was also handed: -


1. A further 10 years on the sex offenders register.

2. Issued a sex harm prevention order.

3. Forfeited his electronic devices (assuming this means he is not allowed to access even android phones).

4. Placed on a rehabilitation course.


Which is more than adequate punishment. Considering his age, this sentence practically dooms Mr Miah’s career path. That is, in connection with his computing ambitions.


Although at the time of publication, I was unable to determine the legal definition between possessing and making images. Making could be a more serious offence even though the said victims were abroad. Reason why it may have been common or acceptable in that culture for him to fail to realise that it was wrong.