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

Why bother with Rights when Public Safety is at risk?84 (1989) 11 E.H.R.R. 117.85 The text of the derogation is reproduced in Schedule 2 to the Human RightsAct 1998.86 See H. Fenwick, Civil Rights: New Labour, Freedom and the Human Rights Act(Longman, 2000), pp. 76-80.87 See, e.g. D. Pannick, The Times, December 4, 2001.88 See part C(iii) above.89 e.g. O'Hara v. Chief Constable of the Royal Ulster Constabulary [1997] 1 All E.R.129, and O'Hara v. U.K., judgment of October 16, 2001.90 A. Sanders & R. Young, Criminal Justice (2nd ed., Butterworths, 2000), pp. 141-179.91 For a brief discussion of those cases, see A. Ashworth, The Criminal Process(2nd ed., Oxford U.P., 1998), Chap. 1.92 This connection with Article 6(3)(b) was made by the Commission in the earlydecision in Jespers v. Belgium (1981) 27 D.R. 61, para. 58.93 Edwards v. U.K. (1992) 15 E.H.R.R. 417, para. 36; Rome and Davis v. U.K. (2000)30 E.H.R.R. 1, para. 60.94 ibid., para. 61. Note that the reasons for the grounds of exception differ in theirnature: a conflict between individual rights may raise different considerationsfrom a clash between an individual right and the public interest.95 Attorney General, Disclosure of Information in Criminal Proceedings (2000), para.3.96 See the report of the Crown Prosecution Service Inspectorate, Thematic Reviewof the Disclosure of Unused Material (2000).97 See, e.g. J. McEwan, Evidence and the Adversary Process (2nd ed., Hart, 1998), pp.106-115.98 See, e.g. Rowe and Davis v. U.K., above, n. 93.99 Van Mechelen v. Netherlands (1997) 25 E.H.R.R. 647, para. 54.100 Trivedi v. U.K. (1997) 89A D.R. 136.101 For a recent example, see Luca v. Italy [2001] Crim.L.R. 747; cf. Trivedi (lastnote).102 See Council of Europe, Intimidation of Witnesses and the Rights of the Defence,Recommendation R (97) 13; N.R. Fyfe, Protecting Intimidated Witnesses (Ashgate,2001).103 Austria v. Italy 2 Dig. 722 (Commission); in English law the provisionrequiring the exclusion of a confession obtained by "oppression" in s.76(l) ofthe Police and Criminal Evidence Act 1984 may be said to have the sameeffect. However, what about real evidence discovered in consequence of aconfession obtained by oppression?104 See, e.g. Teixeira de Castro v. Portugal (1999) 28 E.H.R.R. 101, and the broadlysimilar decision of the House of Lords in Looseley [2001] UKHL 53. TheStrasbourg Court applied Khan in P.G. and J.H. v. U.K. (judgment ofSeptember 25, 2001), but see the challenging dissent by Judge Tulkens.105 Khan v. U.K. (2001) 31 E.H.R.R. 45, supporting the views of the House ofLords in Khan [1997] AC 558; cf. now Sargent [2001] UKHL 54.106 An argument along similar lines was developed by Lord Woolf C.J. inAttorney General's Reference (No. 2 of 2001) [2001] EWCA Crim. 1568, when heheld that a breach of the guarantee of trial within a reasonable time mightsuitably be dealt with, not by staying the prosecution or quashing theconviction, but by means of mitigation of sentence or financial compensation.107 per Black J. in Green v. U.S. 355 U.S. 184 (1957), pp. 187-188.108 For a discussion of recent official proposals, and their foundations, see I.Dennis, "Rethinking Double Jeopardy: Justice and Finality in CriminalProcess" [2000] Crim.L.R. 933.109 Protocol 7 to the Convention, Article 4.2.48