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

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
20 In Stanford 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.
21
(1986) 8 EHRR 235.
22 Article 8(1) provides: “Everyone has the right to respect for his private and family life, his
home and his correspondence.”
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