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

… the general requirements of fairness contained in Article 6,
including the right not to incriminate oneself, “apply to criminal
proceedings in respect of all types of criminal offences without
distinction from the most simple to the most complex”. 34
3.28 While it is true that the rights which go to make up the right to a fair trial in
Article 6(1) are not inflexible, they may not be so eroded, for the sake of some
other public interest, as to extinguish “the very essence” of Article 6(1). 35 As
Harris et al explain (see paragraph 3.4 above) Article 6 is result-focused. The
ultimate question must be whether the right is still effective. 36
HRA, section 3
3.29 If a court concludes that the legislature has apparently gone too far in
diminishing a part of a defendant’s right to a fair trial in order to achieve some
other goal, it must then consider whether the provision in question can be
interpreted compatibly with the Convention by praying in aid HRA section 3(1).
This reads:
So far as it is possible to do so, primary legislation and subordinate
legislation must be read and given effect in a way which is compatible
with the Convention rights.
3.30 As Lord Steyn has said,
the interpretative obligation under section 3 of the 1998 Act is a
strong one. … It is an emphatic adjuration … Section 3 places a duty
on the court to strive to find a possible interpretation compatible with
Convention rights. Under ordinary methods of interpretation a court
34 Saunders v UK (1997) 23 EHRR 313, para 74; cited with approval in Heaney and
McGuinness v Ireland [2001] Crim LR 481; application no 34720/97, 21 December 2000,
para 57.
35 Heaney and McGuinness v Ireland [2001] Crim LR 481; application no 34720/97, 21
December 2000, para 58. In that case, at para 55, it was decided that the privilege against
self-incrimination had effectively been extinguished:
... the Court finds that the “degree of compulsion”, imposed on the applicants by
the application of section 52 of the 1939 Act with a view to compelling them to
provide information relating to charges against them under that Act, in effect,
destroyed the very essence of their privilege against self-incrimination and their
right to remain silent.
36 This point is also emphasised by D Friedman, “Defending the Essence Of The Right:
Judicial Discretion and the Human Rights Act 1998” [2001] Archbold News (4) 6, 8:
... even if the purpose behind legislation is deemed to be valid in terms of
protecting the wider interests of the community, a court is required to consider
whether the effect of the legislation nevertheless produces invalid results from the
point of fundamental rights and freedoms.
Friedman cites the Canadian case of Big M Drug Mart Ltd (1985) 18 DLR (4th) 321 as
an example of this approach.
47