Fair Trial Rights And Secret Evidence Notes

Argument: Goss is critical of the ECtHR jurisprudence in relation to A6; his central argument is that the case law is ‘incoherent, under theorized and poorly explained’ (3); the court is inconsistent in its approaches to the issues and fails to acknowledge the complexity inherent within its own judgments; his normative argument is for the court to adopt a rejuvenated approach to A6, one that is consistent, coherent and better explained; even if consistency is not possible, Goss argues that the court needs to give an explanation as to why in order to adhere to the RoL requirements to be met (ie. that the law be clear, open, stable and capable of guiding behaviour – Raz); in the HR context, RoL concerns are heightened as we need to know why rights are being limited; the court adopts an ‘irrational flexibility’ and doesn’t explain its approach

Precedent:

• The ECtHR does not run on a precedent system – the court is not formally bound but this doesn’t mean it shouldn’t pursue coherence of judgments in order to achieve certainty and adhere to the RoL

• Goss argues in any event, it is important to treat like cases alike and consistency in judicial DM should be valued

Raz and the RoL: ‘it is of the essence of law to guide behaviour through rules and courts in charge of their application. Therefore, the rule of law is the specific excellence of the law’ (Raz – the authority of law; 225)

• Goss argues the ECtHR jurisprudence in relation to A6 fails to measure up to this RoL measuring stick, which is problematic particularly as the court has held itself up to a RoL standard (Malone, Khan)

Interpretive issues:

• The courts employ techniques for interpreting A6 but then don’t explain why a certain technique is being employed in a certain case which leads to uncertainty

• EG. Jalloh: inadmissibility of evidence obtained by torture but failing to explain why automatic unfairness results; adoption of the proceedings as whole test not explained

How does the court view its role and how does this match reality?

• The court’s view of itself is ‘poorly defined and poorly explained’ (35) and disconnected to reality

• Is this because of the difficult political position the court finds itself in, particularly in reln to A6 and the use of evidence – ie. not wanting to undo a conviction cf. declaratory value of another violation such as A3

• Goss argues that even once the political considerations are taken in to account, it would be better for the court to be up front and acknowledge the difficulties it faces

• Instead, the court seems to express its role as modest and clearly in favour of deference to national courts but then in various instances fails to act like this

• EG. Jalloh: declaring any use of evidence obtained by torture as inadmissible

• Court often referring to the fourth instance doctrine and the limitations imposed by this (ie. the court is not a criminal appellate court)

• However, Goss argues it is clear distancing itself from such a role sits in stark contrast to the role it is being asked to play in det. whether a violation of A6 has occurred

• Goss argues the doctrine is too often invoked without adequate explanation and in any event too many exceptions have been recognized which has resulted in an incoherent and inconsistent doctrine

• The caveat to the doctrine (particularly relevant in reln to A6) is that trials need to be examined to see if rights have been infringed – how can a court determine whether fair trial rights have been infringed without engaging with the national court’s trial?

• Clearly the court will have to engage in the domestic trial both factually and legally but the court is failing to recognise this tension and Goss argues the caveat (engaging in scrutiny to see if rights have been infringed) is applied not as the exception, but as the rule

• The problem is the court is not acknowledging the reality and therefore the rhetoric is artificial

The court’s approach to the use of evidence: inconsistent and poorly explained

• Shenk: has often been repeated that it’s not the role of the court to lay down rules about evidence admissibility and this is not for the ECtHR (but this is what the court does in Jalloh) and the Schenk decision focuses on the fact that this isn’t laid down in the text of the convention (but a lot isn’t and its illogical to say it necessarily follows that bc it is a matter for national law, the ECtHR cannot making a ruling) – but Schenk is repeated a lot

• The problem according to Goss is that this creates a false dichotomy the court’s job isn’t to make rulings on admissibility but sometimes whether the trial is fair will depend on the evidence which was admitted and if we are considering whether the trial is fair as a whole, it is clear some cases will turn on the evidence admitted

• If Schenk is taken at face value, it looks as though the court is saying that it shouldn’t be examining the quality of evidence in considering whether a trial was fair but clearly evidence will be crucial

• Jalloh at [95] is an example of this and Jalloh repeats this false dichotomy and makes no reference to this when in [105] making ruling on evidence admissibility in reln to torture in the abstract

• Leaves open the poss in reln to inhuman at 166

• But the court doesn’t explain why its role changes with respect to evidence when A3 is in issue – the court explains that A3 is a fund. value of democratic societies but Goss argues this fact doesn’t explain what it is that makes the trial unfair (ie. the fact that unqualified and non-derogable)

• Goss recommends for the court to acknowledge that A6 cases will often involve appellate analysis and court’s shouldn’t disingenuous about its role – even if political complications involved, the court needs to acknowledge this transparently

Problematic use of tools for assessment:

• Diff tools being used by the court but no explanation as...