The Law Commission

 


PART III THE EUROPEAN CONVENTION ON HUMAN RIGHTS

3.1      It has long been a principle of English law that the defendant should receive a fair trial. Article 6 of the Convention seeks to uphold the same principle. Article 6 reads:

(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …

(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

(3) Everyone charged with a criminal offence has the following minimum rights: …

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him …

THE STRUCTURE OF ARTICLE 6

3.2      Article 6 contains guarantees or rights on three levels of specificity. First, it explicitly spells out a number of specific rights or guarantees. Those in paragraph (1) apply to both civil and criminal proceedings. Those in paragraphs (2) and (3) relate only to criminal matters. Second, the first sentence of paragraph (1) spells out the general right to a "fair hearing". From it have been developed in the case law of the Court certain other specific rights which are said to be implicit in the formulation. They include the right to an oral hearing in person,^[1] and equality of arms.^[2] Third, the general statement in the first sentence operates as an additional open-ended, residual guarantee. This general right to a fair hearing can be directly applied, even where it is not possible to point to a violation of one of the specific rights, whether explicit or implied.^[3]

3.3      The specific rights spelt out might be regarded as examples or manifestations of the general right to a fair hearing,^[4] but they do not necessarily exhaust it. This point is often made particularly with reference to the paragraph (3) guarantees. In such cases or where evidential matters are considered (see paragraph 3.4 below), the Strasbourg Court adopts what Harris et al describe as a "trial as a whole" basis, in which the Court makes a general assessment of the fairness of the trial, taking all the circumstances into account.^[5] This approach can work to the benefit of the accused where a number of features cumulatively undercut the fairness of the hearing,^[6] or it can work to the benefit of the state.^[7]

ARTICLE 6 AND RULES OF EVIDENCE

3.4      Because of the wide variation in systems of criminal procedure and evidence within the member states of the Council of Europe, the Court has adopted the principle that it is a matter primarily for the member state to determine questions of admissibility of evidence.^[8] The result is that the Court looks at the circumstances as a whole to determine whether the hearing has in fact been fair. Harris et al describe the position as follows:

In practice, the Strasbourg authorities ... allow states a wide margin of appreciation as to the manner of [national courts'] operation, for example in the rules of evidence they use. A consequence of this … point is that in certain contexts the provisions of article 6 are as much obligations of result as of conduct, with national courts being allowed to follow whatever particular rules they choose as long as the end result can be seen to be a fair trial.^[9]

3.5      Whilst the use of a particular rule of evidence may cause a trial to be unfair on the facts in any system, the Strasbourg Court and Commission have not, however, established that any particular rule of evidence about bad character evidence is impermissible.^[10]

3.6      In this context, it is perhaps worth drawing attention to Article 6(3)(d). This particular explicit guarantee has echoes in the principle of "equality of arms" which has been read into Article 6.^[11] Taken together, we assume these principles would militate against rules of evidence which placed a defendant at a disadvantage, especially with regard to the examination of witnesses. In English law, complainants in sexual cases are protected against certain questions.^[12] The same protection does not extend to a witness for the defence. In A on this point Lord Hope said,

The rights listed in article 6(3) include the accused's right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him: see paragraph (d). There is no doubt that Parliament, by placing restrictions on the questions that may be asked and the evidence that may be adduced by or on behalf of the accused was entering upon a very sensitive area. But article 6 does not give the accused an absolute and unqualified right to put whatever questions he chooses to the witnesses. As this is not one of the rights which are set out in absolute terms in the article it is open, in principle, to modification or restriction so long as this is not incompatible with the absolute right to a fair trial in article 6(1).^[13] Thus, the 6(3)(d) point is subsumed within the fair trial question.

THE FAIRNESS OF THE ADMISSION OF PREVIOUS CONVICTIONS PER SE

3.7      In a number of Continental systems, lists of previous convictions are routinely added to the case file, which forms the basis of the prosecution and becomes evidence. That this is capable of being fair per se is clearly not contestable at Strasbourg. In the consultation paper we expressed the provisional view^[14] that the Convention did not have any especial relevance to this project. In support of this conclusion we referred to a decision of the Strasbourg Commission^[15] in which it was said that, since many member states provide for the disclosure of previous convictions in their criminal procedure, it was not prepared to hold that such a procedure was in violation of any provision of Article 6.

3.8      One respondent commented this was a decision of the Commission only, and since this was a case decided more than 30 years ago, "that make[s] it a very uncertain pointer towards current views." We do not agree. In numerous cases involving Article 6, it is clear from the recital of the facts that previous convictions have been before the court, and indeed have influenced the judgment.^[16] Further, in these cases the previous convictions are admitted as evidence of guilt, not merely credit. Moreover, it is important to note that in the Denmark case, the trial was before a jury, and "lay judges" (exact status unknown) sat in the Austria case, so it cannot be argued that Continental systems are to be distinguished because they have professional fact-finders.

LOSS OF SHIELD BY CASTING IMPUTATIONS

3.9      It follows from the above discussion that, with all the caveats mentioned above, the fact of the revelation of previous convictions will not result in a breach of the Convention.

3.10      It is undoubtedly the case that, by virtue of the second limb of section 1(f)(ii) of the Criminal Evidence Act 1898, a defendant may fear revelation of his or her criminal record as a consequence of the way the defence is conducted.^[17] An argument might be raised that the distortion of a defence as a result of the defendant's fear of losing the shield amounted to a violation of the right to a fair trial. If it were to do so, it would have to arise under the residual guarantee discussed in paragraph 3.2.

3.11      The particular want of fairness to which this argument might be addressed is what the Court has described as the requirement of fairness in Article 6 in placing the tribunal "under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant to its decision".^[18] As Van Dijk and Van Hoof emphasise, the Strasbourg authorities have deliberately avoided giving a list of abstract criteria: "The proceedings as a whole may, for instance, create the picture that the accused has had insufficient possibilities to conduct an optimal defence, although none of the explicitly granted minimum guarantees has been violated." ^[19] Thus, the argument might run, the distortion of a defence by fear of losing one's shield could be described as something which detracts from the possibility of conducting an optimal defence.

3.12      In our judgment, such an argument would be highly unlikely to succeed save in highly individual circumstances. One cannot get away from the jurisprudence supporting the fairness of reliance on previous convictions at trial. Although a defendant in the position described is, in a sense, being "forced" to distort the defence, he or she is only doing so to avoid a consequence that the Strasbourg Court would not regard as in itself unfair. The distortion is a tactical decision to take advantage of a state of affairs (the fact-finder's ignorance of the previous convictions) which is significantly more to the advantage of the defendant than would be adherence to the minimum requirements of fairness.^[20] Weight is added to this point when one considers that it is, under the Convention, considered fair for previous convictions to be taken into account by a fact-finder in directly determining guilt. The utmost, in theory, that loss of the shield can expose the defendant to is the undermining of his or her credit.

3.13      Nevertheless, the approach of looking at the nature of the trial as a whole cannot exclude the possibility that in a particular, unusual, case, the facts might be such that the Strasbourg Court, or the English courts applying the Convention, would find a violation of Article 6. It does not seem possible, on this issue, to go further than this very speculative conclusion.

VICTIMS OF CRIME AND THE CONVENTION

3.14      Most of the case law of the Strasbourg Court on issues of criminal procedure has arisen from the parts of the Convention which provide guarantees for defendants. However, victims of crimes have human rights as well, and if a country's rules of criminal law, procedure or evidence are ineffective to protect such victims, this deficiency sometimes enables them to complain that their rights under the Convention have been infringed.

3.15      In X and Y v The Netherlands,^[21] for example, the Strasbourg Court upheld a complaint by a mentally handicapped woman that, in effect, Dutch criminal procedure was not adequate to protect her. At the age of 16, she had sexual intercourse forced upon her by the son-in-law of the director of the privately-run home for mentally incapacitated children where she lived. As Dutch law then stood, this man could not be prosecuted, because the offence which he had apparently committed could only be prosecuted where the victim had made a formal complaint, and the girl was considered too seriously handicapped to do this. In consequence, the Netherlands were held to be in breach of Article 8(1) of the Convention.^[22] This provision, said the Court, required the contracting States to provide their citizens with effective protection against being sexually abused, which, in the context of Dutch law as a whole, meant the possibility of criminal sanctions.

3.16      One area in which an infringement of a person's Convention rights might arise is where a person who is a witness in a criminal trial has his or her bad character exposed in public. A lack of protection might impinge in two ways. It might lead to a breach of the witness' Article 8 rights or, if it deters the victim from pursuing a prosecution, it might lead to a complaint under Article 3 or, more likely, Article 8. In MK v Austria, the Commission said that

the interests of witnesses and victims are in principle protected by the Convention, in particular Article 8, which imply that Contracting States should organise their criminal proceedings in such a way that those interests are not unjustifiably imperilled. Against this background, principles of fair trial also require that in appropriate cases the interests of the defence be balanced against those of witnesses or victims called to testify.^[23]

3.17      There has been no consideration of the rights of witnesses in cases on Article 8 itself. There has, however, been some reference to witness rights in the context of other Articles, which may impact on Article 8.

3.18      The Strasbourg organs have, to an extent, sought to balance the right to a fair trial against the rights of witnesses. Thus far the instances of conflict of interests have been focused on witnesses being in actual danger, for example from reprisals or identification.^[24] Article 8 has been considered in the context of Article 6 in Doorson v The Netherlands. The Court held:

It is true that Article 6 does not explicitly require the interests of witnesses in general … to be taken into consideration. However, their life, liberty or security of person may be at stake, as may interests coming generally within the ambit of Article 8 of the Convention. Such interests of witnesses and victims are in principle protected by other, substantive provisions of the Convention, which imply that Contracting States should organise their criminal proceedings in such a way that those interests are not unjustifiably imperilled. Against this background, principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify.^[25]

3.19      Clearly this does not amount to an explicit indication of what the Court might make of a case where it was argued that the defendant's right to a fair trial had been subordinated to a right or interest of another person. The key word in the above judgment upon which the court might focus may be "unjustifiably". What is justifiable will depend very much on the features of an individual case.

3.20      The balancing of a witness's interests against a defendant's rights has been considered at the highest level in the English courts, following the incorporation of the Convention into English law, and we now turn to deal with the way the courts have approached the question.

THE EFFECT OF INCORPORATION

3.21      At the time of the consultation paper the Convention was not incorporated into English law – it now has been.^[26] The approach which will be followed where a provision of English law which governs the admissibility of evidence raises an Article 6 issue has recently been set out by the House of Lords in the case of A.^[27]

3.22      The facts were that the complainant began a sexual relationship with the defendant's friend and she visited him at the flat which he was then sharing with the defendant. On the evening of 13 June 2000 the complainant and the friend had sexual intercourse at the flat when the defendant was not there. Later, when the defendant returned, the three of them went for a picnic. The two men drank whisky and beer. When they got back to the flat the friend collapsed and was taken to hospital. Later, in the early hours of 14 June 2000, the defendant and the complainant left the flat to go to the hospital. The prosecution's case was that as they walked along the route selected by the defendant, he fell down. When the complainant tried to help him, he pulled her to the ground and had sexual intercourse with her. The complainant said that it was rape. The defendant said that it was part of a continuing sexual relationship that they had been having.

3.23      The issue for the court was whether evidence of the sexual relationship which the defendant claimed had existed between him and the complainant was admissible. The first question is whether the evidence is admissible under ordinary principles of construction. If it is not, the second question is whether it would be compatible with the defendant's right to a fair trial under Article 6(1) to exclude the evidence.

3.24      The courts have held that, "while the right to a fair trial is absolute in its terms and the public interest can never be invoked to deny that right to anybody under any circumstances, the rights which [the court] has read into article 6 are neither absolute nor inflexible." ^[28] Where one of those rights which have been read into Article 6^[29] conflicts with another public interest, a court thus has to assess whether the right balance has been struck between the competing interests. Lord Steyn has explained that "The only balancing permitted is in respect of what the concept of a fair trial entails: here account may be taken of the familiar triangulation of interests of the accused, the victim and society. In this context proportionality has a role to play." ^[30] Lord Steyn approved the description of the task given by Lord Lester of Herne Hill QC:

The first question the courts must ask is: does the legislation interfere with a Convention right? At that stage, the purpose or intent of the legislation will play a secondary role, for it will be seldom, if ever, that Parliament will have intended to legislate in breach of the Convention. It is at the second stage, when the Government seeks to justify the interference with a Convention right, under one of the exception clauses, that legislative purpose or intent becomes relevant. It is at that stage the principle of proportionality will be applied.^[31]

The distinctive nature of Article 6

3.25      It has been held by the Strasbourg Court that interference with the right to a fair trial has to pass a stricter test than interference with other rights and freedoms:

Having regard to the place that the right to a fair administration of justice holds in a democratic society, any measures restricting the rights of the defence should be strictly necessary.^[32]

3.26      This principle has also been recognised domestically:

… difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention. … It will be easier for [this discretionary area of judgment] to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection.^[33]

3.27      The seriousness of the crime alleged will not justify greater intrusion on fundamental rights:

the general requirements of fairness contained in Article 6, including the right not to incriminate oneself, "apply to criminal proceedings in respect of all types of criminal offences without distinction from the most simple to the most complex".^[34]

3.28      While it is true that the rights which go to make up the right to a fair trial in Article 6(1) are not inflexible, they may not be so eroded, for the sake of some other public interest, as to extinguish "the very essence" of Article 6(1).^[35] As Harris et al explain (see paragraph 3.4 above) Article 6 is result-focused. The ultimate question must be whether the right is still effective.^[36]

HRA, section 3

3.29      If a court concludes that the legislature has apparently gone too far in diminishing a part of a defendant's right to a fair trial in order to achieve some other goal, it must then consider whether the provision in question can be interpreted compatibly with the Convention by praying in aid HRA section 3(1). This reads:

So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

3.30      As Lord Steyn has said,

the interpretative obligation under section 3 of the 1998 Act is a strong one. … It is an emphatic adjuration … Section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights. Under ordinary methods of interpretation a court may depart from the language of the statute to avoid absurd consequences: section 3 goes much further.^[37]

3.31      A court must, if it is possible to do so, read and give effect to legislation in a way which is compatible with the Convention rights even if an otherwise binding pre- HRA judicial decision exists which would require that the legislation be applied in an incompatible way. If it is not possible to interpret the provision in question compatibly, a declaration of incompatibility must be made.^[38] The rule does not, however, affect the validity of primary legislation which cannot be interpreted compatibly with the Convention,^[39] nor the validity of incompatible secondary legislation where primary legislation prevents the removal of the incompatibility.^[40]

Reading down

3.32      Section 3 might be used not only to interpret legislation but to restrict its scope, by reading it as subject to certain limits. This technique seems most apt in situations where the legislation permits a public authority, including a court, to do something which, in some circumstances, would be a violation of the Convention, but, in other circumstances, would not.^[41] The technique is sometimes known as "reading down".^[42]

Reading in

3.33      A statutory provision which apparently conflicts with Article 6 may be saved by the technique of "reading in". To what extent will a court be prepared to read words into a provision in order to make it compatible with the Convention? On the one hand Lord Steyn has held:

In accordance with the will of Parliament as reflected in section 3 it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions.^[43]

In the same decision, however, Lord Hope held, "I would find it very difficult to accept that it was permissible under section 3 of the Human Rights Act 1998 to read in to section 41(3)(c) [of the Youth Justice and Criminal Evidence Act 1999] a provision to the effect that evidence or questioning which was required to ensure a fair trial under article 6 of the Convention should not be treated as inadmissible. … the rule [in section 3(1)] is only a rule of interpretation. It does not entitle the judges to act as legislators." ^[44] Lord Hope did not, unlike the other Law Lords, consider it necessary to have recourse to section 3 for the resolution of the question before their Lordships.

3.34      Lord Steyn was content to conclude that it is "possible under section 3 to read section 41 … as subject to the implied provision that evidence or questioning which is required to ensure a fair trial under article 6 of the Convention should not be treated as inadmissible".^[45] Lords Clyde, Hutton and Slynn took a similar line to Lord Steyn,^[46] whereas Lord Hope's conclusion was

In the present case it seems to me that the entire structure of section 41 contradicts the idea that it is possible to read into it a new provision which would entitle the court to give leave whenever it was of the opinion that this was required to ensure a fair trial. … Section 41(2) forbids the exercise of such a discretion unless the court is satisfied as to the matters which that subsection identifies. It seems to me that it would not be possible, without contradicting the plain intention of Parliament, to read in a provision which would enable the court to exercise a wider discretion than that permitted by section 41(2).^[47]

3.35      Their Lordships all concurred with Lord Steyn, however, in the test to be applied in the case of this statutory provision:

The effect of the decision today is that under section 41(3)(c) of the 1999 Act, construed where necessary by applying the interpretative obligation under section 3 of the Human Rights Act 1998, and due regard always being paid to the importance of seeking to protect the complainant from indignity and from humiliating questions, the test of admissibility is whether the evidence (and questioning in relation to it) is nevertheless so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under article 6 of the convention. If this test is satisfied the evidence should not be excluded.^[48]

Conclusion

3.36      A rule which made evidence admissible or inadmissible, such that it appeared that a defendant had not had or could not have a fair trial, or that one of the rights of the defendant which is a constituent part of the right to a fair trial had been breached, would threaten to bring English law into conflict with the Convention. In that circumstance, a court would strive to interpret the rule such that the defendant's right to a fair trial was upheld. If the rule was contained in a statute, section 3 of the HRA would oblige the court to interpret the provision compatibly in so far as it was possible. It is not, however, settled to what extent words may be implied into a statutory provision in order to achieve that result.

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Note 1   Ekbatani v Sweden (1988) 13 EHRR 504.    [Back]

Note 2   Borgers v Belgium (1993) 15 EHRR 92.    [Back]

Note 3   Barbera, Messegue and Jabardo v Spain (1989) 11 EHRR 360.    [Back]

Note 4   As stated, eg, in Van Mechelen and Others v The Netherlands (1998) 25 EHRR 647.    [Back]

Note 5   See Harris, O’Boyle and Warbrick, Law of the European Convention on Human Rights (1995) pp 202–203; Van Dijk and Van Hoof, Theory and Practice of the European Convention on Human Rights (3rd ed 1998) pp 428–430. For cases see for instance Barbera, Messegue and Jabardo v Spain (1999) 11 EHRR 360.    [Back]

Note 6   As in Barbera, Messegue and Jabardo v Spain (1999) 11 EHRR 360.    [Back]

Note 7   As inStanford v UK, The Times 8 March 1994 (although the Court also considered that the state’s obligations were not engaged where the failure to object to the fact that the defendant in a trial could not properly hear the proceedings was a tactical decision taken by counsel).    [Back]

Note 8   See for instance Van Mechelen and Others v The Netherlands (1998) 25 EHRR 647; Barbera, Messegue and Jabardo v Spain (1999) 11 EHRR 360; Kostovski v The Netherlands (1990) 12 EHRR 434; Windisch v Austria (1991) 13 EHRR 281; Saidi v France (1994) 17 EHRR 251; Doorson v The Netherlands (1996) 22 EHRR 330; Ferrantelli and Sontangelo v Italy (1997) 23 EHRR 288; Schenk v Switzerland (1991) 13 EHRR 242 (unlawfully obtained evidence is not excluded as a matter of principle).    [Back]

Note 9   Harris, O’Boyle and Warbrick, Law of the European Convention on Human Rights (1995) p 164.    [Back]

Note 10   For a comprehensive survey of the law in this area, see A H Robertson and J G Merrills, Human Rights in Europe (3rd ed 1993) pp 85–124.    [Back]

Note 11   Kaufman v Belgium (1986) 50 DR 98; Neumeister v Austria (No 1) (1979–80) 1 EHRR 91.    [Back]

Note 12   See para 2.69 above.    [Back]

Note 13   A [2001] UKHL 25, paras [90–91].    [Back]

Note 14   At para 1.12.    [Back]

Note 15   X v Denmark Yearbook (1965) vol 8, p 370. See also X v Austria Yearbook (1966) vol 9, p 550.    [Back]

Note 16   For instance, Unterpertinger v Austria (1991) 13 EHRR 175, para 20; Kostovski v The Netherlands (1990) 12 EHRR 434, para 18.    [Back]

Note 17   See para 4.37 below. In the research conducted for the Royal Commission it appeared this fear was operative in a significant proportion of defended cases: M Zander and P Henderson, Research Study No 19 (1993) for the Report of the Royal Commission, para 4.6.8.    [Back]

Note 18   Kraska v Switzerland (1994) 18 EHRR 188, para 30.    [Back]

Note 19   Van Dijk and Van Hoof, Theory and Practice of the European Convention on Human Rights (3rd ed 1998) p 429.    [Back]

Note 20   InStanford v UK, The Times 8 March 1994, the Court considered that the state’s obligations were not engaged where the applicant’s counsel could have objected, but chose not to, to the fact that the applicant, in the dock in a court said to have problems with its acoustic properties, could not hear proceedings. It was a tactical decision motivated by a desire to avoid the appearance of intimidation if the defendant was moved nearer to the vulnerable witnesses.    [Back]

Note 21   (1986) 8 EHRR 235.     [Back]

Note 22   Article 8(1) provides: “Everyone has the right to respect for his private and family life, his home and his correspondence.”    [Back]

Note 23   MK v Austria (1997) 24 EHRR CD 59, 60–61.    [Back]

Note 24   See Keir Starmer, European Human Rights Law (1999) para 9.36.    [Back]

Note 25   (1996) 22 EHRR 330, para 3(c). In Van Mechelen v The Netherlands (1998) 25 EHRR 647 the court applied the Doorson balancing test, and thereby held that the national courts had given too much weight to the rights of police witnesses by granting them anonymity such that the defendants’ rights under Article 6 had not been sufficiently respected. At paragraph 56 the court stated: Although their interests – and indeed those of their families – also deserve protection under the Convention, it must be recognised that their position is to some extent different from that of a disinterested witness or a victim. They owe a general duty of obedience to the State’s executive authorities and usually have links with the prosecution; for these reasons alone their use as anonymous witnesses should be resorted to only in exceptional circumstances.     [Back]

Note 26   Human Rights Act 1998, which came into force on 2 October 2000.    [Back]

Note 27   [2001] UKHL 25.    [Back]

Note 28   Brown v Stott [2001] 2 WLR 817, 851a, per Lord Hope of Craighead.    [Back]

Note 29   See para 3.2 above.    [Back]

Note 30   A [2001] UKHL 25, para [38].    [Back]

Note 31   “The Act of the Possible: Interpreting Statutes under the Human Rights Act” [1998] EHRLR 665, 674. Lord Steyn also commended Bertha Wilson J, “The Making of a Constitution: Approaches to Judicial Interpretation” (1988) PL 370, 371–372; and David Feldman, “Proportionality and The Human Rights Act 1998” in The Principle of Proportionality in the Laws of Europe (1999) pp 117, 122–123.    [Back]

Note 32   Van Mechelen and Others v The Netherlands [1998] 25 EHRR 647, para 58.    [Back]

Note 33   R v DPP ex p Kebilene [2000] 2 AC 326, 381, per Lord Hope.    [Back]

Note 34   Saunders v UK (1997) 23 EHRR 313, para 74; cited with approval in Heaney and McGuinness v Ireland [2001] Crim LR 481; application no 34720/97, 21 December 2000, para 57.    [Back]

Note 35   Heaney and McGuinness v Ireland [2001] Crim LR 481; application no 34720/97, 21 December 2000, para 58. In that case, at para 55, it was decided that the privilege against self-incrimination had effectively been extinguished: ... the Court finds that the “degree of compulsion”, imposed on the applicants by the application of section 52 of the 1939 Act with a view to compelling them to provide information relating to charges against them under that Act, in effect, destroyed the very essence of their privilege against self-incrimination and their right to remain silent.    [Back]

Note 36   This point is also emphasised by D Friedman, “Defending the Essence Of The Right: Judicial Discretion and the Human Rights Act 1998” [2001] Archbold News (4) 6, 8: ... even if the purpose behind legislation is deemed to be valid in terms of protecting the wider interests of the community, a court is required to consider whether the effect of the legislation nevertheless produces invalid results from the point of fundamental rights and freedoms. Friedman cites the Canadian case of Big M Drug Mart Ltd (1985) 18 DLR (4th) 321 as an example of this approach.    [Back]

Note 37   A [2001] UKHL 25, para [44].    [Back]

Note 38   HRA 1998, s 4.    [Back]

Note 39   HRA 1998, s 3(2)(b). See R v Sec of State for Home Department, ex p Simms [2000] 2 AC 115, 131, per Lord Hoffmann.    [Back]

Note 40   HRA 1998, s 3(2)(c).    [Back]

Note 41   An example from New Zealand is Ministry of Transport v Noort [1992] 3 NZLR 260, which concerned the right to seek legal advice by telephone before submitting to a compulsory blood or breath test. It was held that, notwithstanding the lack of provision in the Transport Act, the Act could be read as subject to the right, under the Bill of Rights, of an arrested person to consult a lawyer without delay. See Lord Cooke of Thorndon, “The British Embracement of Human Rights” [1999] EHRLR 243, 249–50.    [Back]

Note 42   The Lord Chancellor has also given some support to the view that the scope of the powers granted by primary legislation can be pared down so that they do not allow Convention rights to be transgressed. See Lord Irvine of Lairg LC, “The Development of Human Rights in Britain under an Incorporated Convention on Human Rights” [1998] PL 221 at 228–229. A helpful discussion of the application of s 3 of the HRA, including the possible relevance of the techniques of “reading in” and “reading down”, is provided in Clayton and Tomlinson’s The Law of Human Rights (2000) vol 1, paras 4.04 – 4.38.    [Back]

Note 43   A [2001] UKHL 25, para [44].    [Back]

Note 44   A [2001] UKHL 25, para [108]. We note also that the Home Secretary stated before the enactment of the HRA that it was not the Government’s intention that the courts “should contort the meaning of words to produce implausible or incredible meanings”: Hansard (HC) 3 June 1998, vol 313, col 422.    [Back]

Note 45   A [2001] UKHL 25, para [45].    [Back]

Note 46   Ibid, paras [136] and [13] respectively.    [Back]

Note 47   Ibid, para [109].    [Back]

Note 48   Ibid para [46].    [Back]