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

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
23 MK v Austria (1997) 24 EHRR CD 59, 60–61.
24 See Keir Starmer, European Human Rights Law (1999) para 9.36.
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.
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