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Evaluating the Strasbourg and British approaches114 The authorities are not all in the same direction, however. The decision inTeixeira de Castro v. Portugal (1999) 28 E.H.R.R. 101, on evidence obtained byentrapment, overrode the national law and found that the trial was unfair.See also the dissent by Judge Tulkens in P.G. and J.H. v. U.K., judgment ofSeptember 25, 2001.us j p ra£ j e l, "The Criminal Justice Systems facing the Challenge of OrganisedCrime" (1998) 69 Revue Internationale de Droit Penal 673, at p. 683 referring tothe Czech Penal Code.116 Chap. 1, part D9.117 Above, pp. 74-77.118 See discussion of the British cases in part C of this lecture.119 See generally Emmerson and Ashworth, Human Rights and Criminal Justice(2001), Chap. 9; among the few leading decisions are Salabiaku v. France (1988)13 E.H.R.R. 379 and Phillips v. U.K. [2001] Crim.L.R. 817.120 Schwartz [1988] 2 S.C. 443.121 Whyte [1988] 2 S.C. 3.122 Downey [1992] 2 S.C. 10. For comments on these decisions, see K. Roach, DueProcess and Victims' Rights (Toronto U.P., 1999), pp. 104-105, and in greaterdetail, D.R. Stuart, Charter Justice in Canadian Criminal Law (2nd ed., Carswell,1996), pp. 325-349.123 See the fascinating study by A.W.B. Simpson, Human Rights and the End ofEmpire (Oxford U.P., 2001).124 In the context of Article 6, the Court has developed an array of "impliedrights" on access to justice, equality of arms, silence and self-incrimination,and so forth.125 For example, Tyrer v. U.K. (1979) 2 E.H.R.R. 1 on corporal punishment,Dudgeon v. U.K. (1982) 4 E.H.R.R. 149 on the criminalisation of homosexualacts between consenting adults in private, and Doorson v. Netherlands (1996)22 E.H.R.R. 330 on the rights of witnesses and victims in court.126 C. Douzinas, "Justice and Human Rights in Postmodernity", in C. Gearty andA. Tomkins (eds), Understanding Human Rights (Pinter, 1996), pp. 129-130.127 From the debates on the second reading: H.L. Deb., vol. 582, col. 1309.128 The term coined by Murray Hunt: see above, n. 97 and accompanying text.129 e.g. K. Ewing, "The Human Rights Act and Parliamentary Democracy" (1999)62 M.L.R. 79.130 Loughlin, above, n. 91 at pp. 56-58.92
3. Taking a "Balanced" View of thePublic InterestIn the second lecture I contended that the use of "publicinterest" arguments to outweigh the human rights protections inArticle 5 and 6 of the European Convention on Human Rights isof doubtful legitimacy. I referred to several attempts by governmentsto circumvent or minimise the right to a fair trial, notablyin arguments addressed to the European Court of HumanRights, and showed that in most cases that Court declined togive way. However, such arguments have met with greatersuccess in the British courts since the implementation of theHuman Rights Act, and I criticised the judgments in some casesfor their failure to take proper account of the Strasbourgdecisions and of the structure and spirit of the Convention. Ialso went on to show that "public interest" arguments may beless strong than some of their protagonists believe them to be.The debates about the conflicts between individual humanrights and wider public interests are not solely about judicialapproaches to the Convention. On the contrary, governmentministers and other politicians refer to those conflicts whenexplaining policy initiatives, particularly in relation to seriouscrime. Ministers are unlikely to admit openly to a desire todispense with the protection of human rights. 1 It is much morelikely that they would wish to proclaim that the Governmentrespects and promotes human rights, and would then seekmethods of circumventing or minimising human rights protectionswhere possible. In this lecture I draw together five ways ofavoiding human rights—developing exceptions to human rightsbased on the seriousness of the crime; manipulating the civilcriminalboundary; expanding the definitions of exceptionalcategories; propounding a "no rights without responsibilities"thesis; and arguing that the curtailment of a human right isnecessary for the protection of the human rights of otherindividuals. The lecture begins by looking at how other countriesdeal with some of the types of serious crime we are93
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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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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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