Human Rights, Serious Crime and Criminal Procedure - College of ...

Evaluating the Strasbourg and British approachesBritish courts so far, 118 as we saw in part C above. It is theprevailing approach in Strasbourg, as was evident in parts Aand B above, but the Strasbourg Court has sometimes, andwithout particular justification, adopted a more flexible stance.A prime example of this "flexibility" is the presumption ofinnocence: the jurisprudence of the European Court and Commissionof Human Rights on Article 6(2) is rather sketchy, butit also contains several decisions allowing reverse onus provisionsfor reasons that are capable of applying over a widerange of offences and therefore of substantially underminingthe presumption itself. 119 Similarly in Canada the SupremeCourt has upheld reverse onus provisions, on public interestgrounds, in relation to the possession of gun licences becauseof the importance of gun control, 120 in relation to being drunkin charge of a vehicle because of "the threat to public safetyposed by drinking and driving" 121 ; and in relation to living onthe earnings of prostitution because of the need to protectprostitutes, who are "a particularly vulnerable segment ofsociety." 122 These and other decisions may or may not appearjustifiable in their specific context. But, taken together, theyundermine the presumption of innocence by expanding thepublic interest exception in such a way that it could swallowup the principle itself. Many criminal offences are created inorder to enhance public safety, or to protect vulnerable sectorsof society. Very few offences of violence or sexual offenceswould fail to fulfil these criteria, and yet the whole purpose ofthe presumption of innocence is to protect people accused ofcrimes, for the reasons outlined in the first lecture. Justificationsfor making exceptions cannot be reasons which applygenerally, since general reasons would be inconsistent with theprinciple itself.Does this acknowledgement that there are controversialelements in human rights, in terms of the extent to which theyought to give way to public interest arguments, destroy theclaim that fundamental rights have some kind of objectivevalidity, over and above the changing output of legislatures?This question makes little sense unless one has a good idea ofwhat is meant by "objective validity". Probably in this contextit is another way of describing the foundational quality ofclaims and interests that come to be recognised as "rights": canone describe a right as fundamental and then accept that it isnot so fundamental that it cannot give way to public interestconsiderations in certain contexts? The problem may be thatcertain human rights are sometimes described as absolutewhen in practice they are not—a problem of exaggeration, a85