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

triangulation of interests of the accused, the victim and society. In this context
proportionality has a role to play.” 30 Lord Steyn approved the description of the
task given by Lord Lester of Herne Hill QC:
The first question the courts must ask is: does the legislation interfere
with a Convention right? At that stage, the purpose or intent of the
legislation will play a secondary role, for it will be seldom, if ever, that
Parliament will have intended to legislate in breach of the
Convention. It is at the second stage, when the Government seeks to
justify the interference with a Convention right, under one of the
exception clauses, that legislative purpose or intent becomes relevant.
It is at that stage the principle of proportionality will be applied. 31
The distinctive nature of Article 6
3.25 It has been held by the Strasbourg Court that interference with the right to a fair
trial has to pass a stricter test than interference with other rights and freedoms:
Having regard to the place that the right to a fair administration of
justice holds in a democratic society, any measures restricting the
rights of the defence should be strictly necessary. 32
3.26 This principle has also been recognised domestically:
… difficult choices may have to be made by the executive or the
legislature between the rights of the individual and the needs of
society. In some circumstances it will be appropriate for the courts to
recognise that there is an area of judgment within which the judiciary
will defer, on democratic grounds, to the considered opinion of the
elected body or person whose act or decision is said to be
incompatible with the Convention. … It will be easier for [this
discretionary area of judgment] to be recognised where the
Convention itself requires a balance to be struck, much less so where
the right is stated in terms which are unqualified. It will be easier for
it to be recognised where the issues involve questions of social or
economic policy, much less so where the rights are of high
constitutional importance or are of a kind where the courts are
especially well placed to assess the need for protection. 33
3.27 The seriousness of the crime alleged will not justify greater intrusion on
fundamental rights:
30 A [2001] UKHL 25, para [38].
31 “The Act of the Possible: Interpreting Statutes under the Human Rights Act” [1998]
EHRLR 665, 674. Lord Steyn also commended Bertha Wilson J, “The Making of a
Constitution: Approaches to Judicial Interpretation” (1988) PL 370, 371–372; and David
Feldman, “Proportionality and The Human Rights Act 1998” in The Principle of
Proportionality in the Laws of Europe (1999) pp 117, 122–123.
32 Van Mechelen and Others v The Netherlands [1998] 25 EHRR 647, para 58.
33 R v DPP ex p Kebilene [2000] 2 AC 326, 381, per Lord Hope.
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