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Evaluating the Strasbourg and British approachesabsolute—or, at least, not until the scope of their application hasbeen determined—but it is plain that they are not intended togive way to "public interest" considerations.Another category of Convention rights might be termedqualified or prima facie rights—the right is declared, but it isalso declared that it may be interfered with on certain grounds,to the minimum extent possible. Examples of this are the rightto respect for private life (Article 8), the right to freedom ofthought and religion (Article 9), the right to freedom of expression(Article 10), and the right to freedom of assembly andassociation (Article 11).A11 these qualified rights are subject tointerference, if it can be established that this is "necessary in ademocratic society" on one of the stated grounds.Lying between non-derogable rights and qualified rights is anintermediate category, which is less easy to label and less easyto assess. In the European Convention the category wouldinclude the right to liberty and security of the person (Article 5)and the right to a fair trial (Article 6). One might refer to therights in this intermediate category as "strong rights", todemonstrate that they have a strength which is not qualified tothe extent that the rights in Articles 8-11 are qualified. Indeed,in the internal logic of the Convention, this may prove to bequite a significant distinction. What it suggests is that, althoughstrong rights are less fundamental than the non-derogablerights, any arguments for curtailing a strong right must at leastbe more powerful than the kind of "necessary in a democraticsociety" argument that is needed to establish the acceptability ofinterference with a qualified right.This is a different and more nuanced approach than that ofDworkin, which was developed in the context of the UnitedStates constitution. The Convention may be said to assigndifferent strengths to different groups of rights, with the resultthat the non-derogable rights are even more powerful thanDworkin's concept of a basic right, whereas the qualified rightsare weaker than Dworkin's unitary concept. The suggestionhere is that the "minimum kit" for a basic right should be that itbe strong enough to override a simple argument that publicsafety would be enhanced if the right were curtailed: if the rightwere to give way in the face of a claim at that level, it wouldhardly be worthy of description as a "fundamental right". Thisof course means, in practical terms, that a claim should not beregarded as a basic right unless one is prepared to accord it thisdegree of priority or special weight. Whether this description ofa right is precisely that which is implicit in the EuropeanConvention itself is a matter for debate: I would argue that it is76
Evaluating the Strasbourg and British approachesclearly compatible with the structure and interpretation of thenon-derogable rights and the strong rights, but there is room fordisagreement about the structure and interpretation of qualifiedrights such as those in Articles 8-11. Those Articles allowinterference where it is "necessary in a democratic society" and,although the Court has articulated principles of proportionalityand subsidiarity in its application of that crucial phrase, it is truethat the list of possible grounds for interference is extensive andbroadly phrased. Perhaps the most appropriate summation atthis stage is that the European Convention has the structure andpotential to be applied in this way, but also (in respect of thequalified rights) the potential to be interpreted in a way thatdilutes their application to an extent which might be taken toundermine their status as fundamental rights.(iv) Victims' rights and the public interestA further problem concerns the rights of victims and potentialvictims. It can be argued that many of the collisions I havementioned are not between individual rights and some general"public interest" or interest in public safety, but rather betweenthe rights of some individuals (suspects and defendants) and therights of other individuals (victims and potential victims).Indeed, as we saw above, Dworkin argues that, in principle,individual rights can only be curtailed by other individual rightswith which they conflict, and not by broader public interestconsiderations except in extremis. 100 The Convention itself allowscertain individual rights (such as the qualified rights in Articles8-11) to be curtailed either "for the protection of the rights andfreedoms of others", or by reference to public interest factorssuch as national security, the prevention of crime and disorder,and other stipulated heads of justification which are held to be"necessary in a democratic society". The focus here will be onthe former, exploring the proposition that a right can becurtailed if it conflicts with or threatens to curtail anotherindividual right.Why is this argument potentially more powerful? In the firstplace, it is capable of giving rise to the curtailment of strongerrights such as the right to confront witnesses. Thus in Doorson v.Netherlands 101 the Court held that, where there were credible andspecific dangers of reprisals (one of the two witnesses had beenattacked before by a drug dealer against whom he had testified,and the other had been threatened on this occasion), 102 theprotection of the witnesses' right to security of person underArticle 5 should be allowed to detract from the defendant's right77
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THEKAMLYNHuman Rights, Serious Crim
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TABLE OF CONTENTSAcknowledgementsCo
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The Hamlyn Lectures1961 British Jus
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The Hamlyn Lectures1989 Protection
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The Hamlyn TrustProfessor N. Dawson
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Table of CasesBrown (Margaret) v. S
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Table of CasesLooseley [2001] UKHL
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Table of CasesVan Mechelen v. Nethe
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Why bother with Rights when Public
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Why bother with Rights ivhen Public
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Taking a "Balanced" View of the Pub
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IndexCriminal Justice and Police Ac
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IndexFair trial rights—cont.curta
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IndexPublic interest—cont.fundame
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Does the United Kingdom StillHave a
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