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

may depart from the language of the statute to avoid absurd
consequences: section 3 goes much further. 37
3.31 A court must, if it is possible to do so, read and give effect to legislation in a way
which is compatible with the Convention rights even if an otherwise binding pre-
HRA judicial decision exists which would require that the legislation be applied
in an incompatible way. If it is not possible to interpret the provision in question
compatibly, a declaration of incompatibility must be made. 38 The rule does not,
however, affect the validity of primary legislation which cannot be interpreted
compatibly with the Convention, 39 nor the validity of incompatible secondary
legislation where primary legislation prevents the removal of the incompatibility. 40
Reading down
3.32 Section 3 might be used not only to interpret legislation but to restrict its scope,
by reading it as subject to certain limits. This technique seems most apt in
situations where the legislation permits a public authority, including a court, to
do something which, in some circumstances, would be a violation of the
Convention, but, in other circumstances, would not. 41 The technique is
sometimes known as “reading down”. 42
Reading in
3.33 A statutory provision which apparently conflicts with Article 6 may be saved by
the technique of “reading in”. To what extent will a court be prepared to read
words into a provision in order to make it compatible with the Convention? On
the one hand Lord Steyn has held:
In accordance with the will of Parliament as reflected in section 3 it
will sometimes be necessary to adopt an interpretation which
linguistically may appear strained. The techniques to be used will not
37 A [2001] UKHL 25, para [44].
38 HRA 1998, s 4.
39 HRA 1998, s 3(2)(b). See R v Sec of State for Home Department, ex p Simms [2000] 2 AC
115, 131, per Lord Hoffmann.
40 HRA 1998, s 3(2)(c).
41 An example from New Zealand is Ministry of Transport v Noort [1992] 3 NZLR 260,
which concerned the right to seek legal advice by telephone before submitting to a
compulsory blood or breath test. It was held that, notwithstanding the lack of provision in
the Transport Act, the Act could be read as subject to the right, under the Bill of Rights, of
an arrested person to consult a lawyer without delay. See Lord Cooke of Thorndon, “The
British Embracement of Human Rights” [1999] EHRLR 243, 249–50.
42 The Lord Chancellor has also given some support to the view that the scope of the powers
granted by primary legislation can be pared down so that they do not allow Convention
rights to be transgressed. See Lord Irvine of Lairg LC, “The Development of Human
Rights in Britain under an Incorporated Convention on Human Rights” [1998] PL 221 at
228–229. A helpful discussion of the application of s 3 of the HRA, including the possible
relevance of the techniques of “reading in” and “reading down”, is provided in Clayton
and Tomlinson’s The Law of Human Rights (2000) vol 1, paras 4.04 – 4.38.
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