Evidence of Bad Character in Criminal ... - Law Commission

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
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.
6 As in Barbera, Messegue and Jabardo v Spain (1999) 11 EHRR 360.
7 As in Stanford 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).
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).
9 Harris, O’Boyle and Warbrick, Law of the European Convention on Human Rights (1995)
p 164.
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.
11 Kaufman v Belgium (1986) 50 DR 98; Neumeister v Austria (No 1) (1979–80) 1 EHRR
91.
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