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Fair Trial Rights And Secret Evidence Notes

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4: FAIR TRIAL RIGHTS AND SECRET EVIDENCE A: FAIR TRIAL RIGHTS (i) GENERAL READING Goss: Fair Trial Rights
  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: o 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 o 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) o 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: o 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 o 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?
o The court's view of itself is 'poorly defined and poorly explained' (35) and disconnected to reality o 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 o 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 o 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 o EG. Jalloh: declaring any use of evidence obtained by torture as inadmissible o Court often referring to the fourth instance doctrine and the limitations imposed by this (ie. the court is not a criminal appellate court) o 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 o 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?
o 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 o 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 o 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 o 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 o 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 o 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 o Leaves open the poss in reln to inhuman at 166 o 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) o 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: o Diff tools being used by the court but no explanation as to why a certain one is being used or any reference to why a certain rule is considered appropriate to be used in a certain context and the overall picture is therefore incoherent o Goss argues that whilst different approaches might be appropriate, the reasoning behind usage needs to be properly explained in order to avoid 'irrational flexibility' being applied o A6 is different: it has no qualifications but it is derogable (cf. s 1 of the Canadian Charter which applies proportionality to all rights) o Court attempts to solve the puzzle of A6 through the use of the following tools:
 Proceedings as a whole
 Counterbalancing and defect curing
 Automatic unfairness
 Evidence being sole/decisive
 Public interest justifications/balancing/proportionality o Never fair: = no balancing at all
 With no explanation as to why no balancing is justified, the court employs never fair reasoning and applied the method inconsistently and doesn't explain why balancing isn't appropriate and there is no o

o

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explanation as to why in these cases a violation of A6 cannot be cured (in the context of impartiality)
 This doesn't line up with references to the proceedings as a whole being considered:
EG. Gafgen at 163 as a whole but at 166 talks about evidence of torture being automatically unfair, irrespective of the probative value of the evidence or whether it was decisive in the trial  ie. this is incompatible with looking at the proceedings as a whole bc it looks like it doesn't matter if the proceedings as a whole were fair bc the decisive element is the torture
 Inconsistent usage of never fair  ie. why torture but not inhumane = no explanation Sole/decisive evidence:
 For a long time, the court's approach was based on whether a conviction was based decsiviely on a piece of evidence and if so there would be a violation of A6 (Schenk - no violation bc conviction based on addn evidence)
 Al khawaja: complicates the picture  even if evidence is decisive but improperly obtained, if the evidence is strong and reliable this may avoid an A6 violation
 Khan: bc the recording was strong and reliable evidence, the need for corresponding supporting evidence is weaker and no violation of A6, even though no other evidence = weakening Schenk and resulting in two lines of cases Public interest inconsistency:
 In what sense has the court allowed the PI to be taken into acc in justifying A6 limitations and to what extent has the court been consistent in its approach to the public int?
 Goss argues the court is using structured balancing/proportionality in its use of the PI in reln to A6
 The court sometimes embraces use of the PI and sometimes forbids it
 Proportionality can mean two things:
1. Rigorously applied analysis and heavily structured proportionality
2. Broad brush balancing of competing interests
 A complex picture is drawn in reln to A6 - there is a debate as to whether or not proportionality/balancing is appropriate at all in reln to A6
 The case law is more complex than simply accepting a proportionality analysis in reln to A6 (cf. Canadian charter)  in some cases the court is avidly against the use of balancing but in others the court is willing to balance away A6 rights with proportionality analyses = internal incoherence reflecting a deep uncertainty as to how A6 should be interpreted - ie. should the court be balancing at all?
 Cases rejecting PI:
Saunders: [74] rejection
Heaney and Shannon: court rejects PI arguments on the basis of security concerns - Northern Ireland security context cannot be used to justify a fair trial limitation
Ramanauskus: no limitation on A6 on the grounds of expediency
 Cases allowing:
Jalloh: [117] 'weight of pI in investigating and punishment of the offence'
 Very essence:
The court is using PI to limit rights, but within limitations of the very ess of the right not being extinguished (ie. using the very essence of the right as a safeguard against the PI) but to be

useful, the court needs to define what it means by the very essence of the right  eg. Jalloh at [97]  conflicting with Heaney which says no PI  but then conflicting at [107] where court doesn't list PI in det. if v essence extinguished
so the court in Jalloh requires an assessment of whether there has been an A6 infringement on the basis of the [117] factors and if right is violated, the question is whether the v essence of the right remains using [101] factors - but not the PI
SO Goss says the court is using the v essence of the right as a safeguard against the PI being used to extinguish this right but this isn't explicitly explained and is undermined by the decision in O'Halloran (which seems to allow PI considerations to det. whether v ess of the right is extinguished)
  Should we be balancing at all?
o Goss' view is that there should be no PI balancing allowed in reln to A6 o A6 is an unqualified right - despite it being derogable o The text is clear no balancing is allowed o Goss says we need to go back to the position in Saunders in assessing A6 violations o A6 leaves states with the ability to derogate from it - cf. A3 and not balancing better reflects the text and will avoid these issues infecting the case law o If the court decides to continue balancing it needs to be clear and consistent and use a strict proportionality analysis rather than broad brush balancing (ii) RIGHT TO SILENCE AND PRIVILEGE AGAINST SELF-INCRIMINATION (i) GENERAL READING Jackson: re-conceptualising the right of silence as an effective fair trial standard Summary: Jackson makes the argument that the right to silence and the privilege against selfincrimination need to be distinguished in terms of their rationale; he argues it would be better for a distinction to be made, rather than only conceptualising the rights as part of the need for states to respect the individual dignity and autonomy of the individual. He believes the right to silence within the criminal process is entitled to special weighting, over and above the privilege against selfincrimination and the rationale for this special weighting is not to do with upholding substantive rights (dignity/individual respect) but in order to uphold the procedural rights of the defence; he argues this is the way forward and is preferable to the ECtHR's confused dilution of the A6 rights (public interest in Jalloh and O'Halloran). The argument is that the right to silence required procedural defence rights to be triggered not just at the trial phase of criminal proceedings, but also at the pre-trial stage at the point at which the suspect is called upon to answer allegations against him. HR's has developed special participatory rights for the defence and these principles should be applied at the pre-trial phase; if it is important for the D to be given full access to the rights of the defence at the stage when they are asked to account for allegations in order to amount an effective defence, then it is important that these rights are put in place and that a D is not called to account until they are put in place. This argument transforms the right of silence in the pre-trial stage of the criminal process from a right linked to the exercise of will into a procedural right linked to the participatory rights of the defence, requiring that there is no participation until the conditions for fair/informed participation are put in place. The distinction is therefore between the right to silence being linked institutionally with the rights of the defence and the privilege against self-incrimination being linked to respecting the will of the accused. Defence rights exist not just in order to respect the dignity of the individual, but are important in safeguarding institutional values. But once the rights of the defence are put in place, the right to silence is conceptualised as

reverting back to an exercise of will or choice on the part of the individual, but this is a choice which is made on an informed basis as part of a defence strategy. Ashworth: self-incrimination in European Human Rights Law - A Pregnant Pragmatism Summary: Ashworth argues the privilege against self-incrimination has been diluted (particularly as a result of the majority judgment in Jalloh's reference to the public interest) and it's importance needs to be reasserted by the ECtHR; he argues the privilege can be justified in principle as forming part of a rights-based approach to criminal justice; where the court wants to depart from the privilege, doing so much be recognised as an exception (eg. For minor offences connected to voluntary social enterprises that a citizen decides to become involved in or minor offences connected to taxation and other regulatory systems necessary for modern government to function efficiently and fairly); further exceptions might be to identify oneself or for material with an existence independent of the will as a result of consensus; in relation to Jalloh, it cannot be suggested that the privilege should be maintained when the D is accused of small time drug dealing but that the privilege can be abrogated where the D is accused of a more serious crime Introduction
 The text of A6 does not include the privilege against SI or the right of silence  these rights have been implied into A6 by the ECtHR Planting the seed
 Funke v France 1993: o Court found that imposing a fine for failing to produce bank statements violated A6 rights and the court introduced the privilege against SI into the court's jurisprudence, but without detailing the scope of the privilege or elaborating on its origins or rationale o The court made it clear that the privilege can apply to the delivery of documents and that the privilege cannot simply be balanced away against the public interest (cf. Commission's approach) Setting out the stall:
 Murray: o Right to silence and whether the court could draw adverse inferences from the accused's failure to answer questions put by the police during the investigation o The right to silence was recognised as being closely related to the privilege against SI (SI concerns the threat of coercion to make an accused yield certain information whereas the right to silence concerns the drawing of adverse inference when an accused fails to testify/answer questions) and neither appears on the fact of the text but their close relationship to the right to a fair trial under the Convention was confirmed by the court, relying on A14(3)(g) of the ICCPR o The rights were seen as recognised international standards which provide protection against improper compulsion and contribute to avoiding miscarriages of justice and securing A6 aims o But the right of silence is not absolute - there can be circumstances where inferences can be drawn o But where a conviction is based solely/mainly on the accused' silence this will be incompatible with A6 but at the same time, the immunities cannot prevent the fact that the silence of the accused in situations which clearly call for an explanation from him be taken into account in assessing the persuasiveness of prosecution evidence o It is clear then that the possibility of drawing these inferences arises from the nature of the circumstances, not from the type/seriousness of the offense and inferences can only be drawn if the prosecution has discharged its burden of proving a convincing case o Inferences are not absolutely prohibited but can only be drawn where the common-sense explanation of the accused's silence is that he has no answer to

the case (but the inferences cannot be the sole reason for the conviction) Saunders: o Privilege applied even though the applicant's statements under compulsion were not actually incriminating and as long as statements were made under compulsion, they shouldn't be capable of use by prosecution in criminal proceedings o Point: prosecution to prove case without resorting to evidence obtained through coercion/oppression in defiance of the will of the accused To what types of proceedings does the privilege apply?
 Saunders  the privilege relates only to the admission of evidence in criminal proceedings and does not prohibit the use of compulsory questioning powers in the course of an administrative investigation
 But where the investigation is criminal and not administrative, the privilege applies even at early stages
 Difference in cases: applicant's already having been charged with offences and where the failure to provide information is in itself a criminal offence and it was liability for that offence that violates the privilege
 Distinguishing cases from Heaney and Shannon on the ground that those cases involved compulsion to disclose an earlier offence whereas cases like King and Allen involved compulsion relating directly to what was being investigated and so the conduct constituted the offense rather than incriminating them in another offense 
but this is a confusing rationale because the same could be said of Heaney?
What is the scope of the privilege?
 Saunders: distinction between real evidence and oral evidence  related to respecting the will of the accused to remain silent cf. materials with an existence independent of the will
 Query: is this distinction one of substance or merely a pragmatic attempt to rein in the possible implications of the privilege  in terms of practical law enforcement, it is difficult to resist the pressure to allow procedures
 This might look like Funke was wrongly decided o Redmayme offers a way for Funke to be supporting  one can read saunders as supporting funke on the ground that the key issue was that the applicant was being forced to deliver up the documents; consistent with his proposal that the privilege should be seen as applying to certain means of obtaining information, one that requires cooperation and not a type of information and on this view because bodily samples can be obtained without cooperation (by using force) they can be differentiated form attempts to force someone to speak or hand over documents (***query this - can't you force documents to be delivered?; couldn't you argue the documents in Funke had an existence independence of the will of the accused?) o The court in Heaney affirmed Funke without referring to Saunders o In JB: the court distinguished documents from the materials in Saunders noting that blood/urine samples had an existence independent of the person concerned and were not obtained by means of coercion/in defiance of the will of the person o BUT it is doubtful whether this distinction is convincing - the key question should not be whether the documents have an existence independent from the will of the accused but whether a requirement to produce evidence (whether oral or real) operates as a coercion on the mind of the subject Is the privilege absolute or defeasible?
 Saunders did not decide this question but made clear that there was to be no question of balancing of the public interest: 'it does not accept the gov's argument that the complexity of corporate fraud and the vital public interest in the investigation of such fraud and the punishment of those responsible could justify such a marked departure as that which occurred in the present case from one of the basic principles of a fair procedure'
 The court also made clear that A6 applies in respect of all types of criminal

offences without distinction signalling that a departure from the privilege against SI will be rare and will call for justifications over and above the public interest
 The rejection of the PI is underscored by the Heaney decision, where the court expressed the view that proportionality reasoning was not the proper approach the matter and security/public order concerns could not justify any provision which extinguishes the very essence of applicants' rights
 SO IN SAUNDERS AND HEANEY = the court is clear that PI arguments were not persuasive and no departure could extinguish the very essence of the right Refinement, retrenchment or retreat?
 Before the cases of O'Halloran and Jalloh, the criticism of the court in this area was that its jurisprudence was uncertain and under developed (especially as the tax cases didn't seem to fit in with the saunders principles)
 O'Halloran: o Court changed its approach, holding that other factors could be relevant in deciding whether the essence of the privilege had been violated:
 The direct nature of the compulsion
 The fact that the compulsion is part of a regulatory scheme that fairly imposes obligations on drivers to promote road safety
 The fact that the information requires is the simple, specific and restricted fact of who was driving and not a general account of movements or answers to wide ranging questions
 That the offense contains a safeguard in the form of a defense of due diligence o Clearly then the court allowed factors other than direct compulsion to outweigh the compulsion o One could clearly argue there is a practical element in this case which has not been acknowledged: o European consensus that the privilege against SI should not apply in this situation and therefore this should be recognised as a limited exception o But the court didn't take the approach that this was an exception - once establishing that A6 was not an absolute right, they held that the focus of the decision needed to be on: the nature and degree of the compulsion, the existence of safeguards and the use to which the material was put o This approach exemplified the prevailing approach in the UK (Brown v Stott) 
where the issue was translated into the language of proportionality and balance o What is happening is that a basic right is being trumped by the public interest, exactly what was held to be impermissible in Saunders and Heaney o Whilst the GC in O'Halloran did not explicitly adopt the balancing approach (in terms of language), it was clear that they went some distance down this path and shifted the focus of previous Strasbourg jurisprudence by holding that where direct compulsion was involved, this would not automatically amount to a violation and that other factors needed to be taken into account o It is important to note with respect to this case however that in most situations, the piece of evidence required to be given will be one of only two items necessary for the conviction and punishment will follow o The court needs to be more honest and persuasive and describe this case as recognising an exception based on pragmatic need to promote road safety, adhering to the European consensus o Because the court didn't recognise this as an exception, it is arguable that the judgment suggests a loosening of the privilege in other cases (eg. Saunders; Heaney)
 This use of the public interest is even more problematic in Jalloh: o The majority noted that whilst the evidence did have an existence independent of the will of the accused (ie. The exception to the privilege as recognised in Saunders), the court recognised an exception to this exception holding that the privilege did apply because of the degree of force used (amounting to a violation of A3)

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