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

Taking a "Balanced" View of the Public Interestnecessary are permissible under Article 6(1). Moreover, in order toensure that the accused receives a fair trial, any difficulties caused tothe defence by a limitation on its rights must be sufficiently counterbalancedby the procedures followed by the judicial authorities. 120There may be room for debate about whether the Court hasinsisted on sufficient "counterbalancing" procedures in thesecases of public interest immunity, 121 but what is clear is that thereasoning must be structured, and that this lies some distancefrom the broad balancing in which English courts have sometimesindulged—even though two of the three "competinginterests" are public interests. Thus, on the rare occasions whenthe Strasbourg Court has recognised that a degree of balancingmay enter into the determination of rights under Articles 5 and6, it has insisted on structured reasoning. If English courts andpoliticians are to continue to adopt the metaphor of "balancing",it is submitted that they should at least move to a morerigorous and structured approach. As argued earlier, even thejustifications for interfering with the qualified rights underArticles 8-11 of the Convention must be reasoned according to aparticular structure of requirements: this renders all the morecogent the argument that rigorous and structured reasoningshould be used when there is a question of "balancing" a rightunder Article 5 or 6 against some public interests.Am I vaunting the Strasbourg approach unjustifiably? Afterall, there is no sign in Convention jurisprudence of a "metaprincipleto guide rational choice", 122 and so courts and governmentswill inevitably have considerable leeway in determiningthe answers to the structured questions. However, the notion ofa "meta-principle" might be thought illusory since, even if therewere an overriding principle of respect for human dignity, as inthe German constitution, its meaning when applied to differentsituations can only be developed and adjusted in a particularisticfashion. It may develop a core meaning, but its applicationwill invariably raise further questions and require further evaluations.The Strasbourg approach, as it is, also leaves considerableflexibility to the Court in the interpretation anddevelopment of the various Articles, but there appears to be lessdiscretion than is manifest in the broad balancing approach ofsome English judges. The metaphor of balancing suggests somekind of judicious procedure by which items with a particularweight are put into the scales with other items of a certainweight, so as to determine on which side the greater combinedweight is found. We can then have confidence in the objectivityof the solution. But a British court or politician claiming that allthe relevant interests have been weighed properly so as to130