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

Evaluating the Strasbourg and British approachesThe Court concluded that the restrictions on the rights of thedefence in this case were such as to deprive the applicant of afair trial, and a violation of Article 6 was found. The Court tookthe same approach in the similar case of Windisch v. Austria, 20where a conviction had been based on the statements of twoanonymous witnesses who were not heard by the trial court orexamined in the presence of the applicant or the defencelawyers. Fear of reprisals, together with the need to retain theco-operation of the public in investigating crimes, wereadvanced as reasons for the restrictions on the defence in thiscase. The Court held that the right in Article 6(3)(d) could not berestricted to such an extent.A similar approach was taken in Saidi v. France, 21 where theFrench Government had argued that reliance on the statementsof two anonymous witnesses was justified because it wasdifficult to obtain the attendance of witnesses in drugs cases andreprisals against witnesses were always likely. Finding that theapplicant's conviction was based solely on the statements of twopeople whom neither he nor his counsel had had the opportunityto examine, the Court held:The lack of any confrontation deprived him in certain respects of afair trial. The Court is fully aware of the undeniable difficulties of thefight against drug-trafficking—in particular with regard to obtainingand producing evidence—and of the ravages caused to society by thedrug problem, but such considerations cannot justify restricting tothis extent the rights of the defence of 'everyone charged with acriminal offence.' In short, there has been a violation of Article 6(1)and (3)(d). 22It will be observed that the Court objected to restricting therights of the defence "to this extent". This may be said to goagainst the argument being developed here, since it clearlyimplies that some restriction may be acceptable. But, as will beargued below, there is a significant difference between allowinglimited restrictions on a right and holding that any restrictionthat can be said to be proportionate to public interest considerationsis permissible. What is noticeable about the relevantStrasbourg decisions is that they emphasise that the essence ofthe right must be preserved, even where limited restrictions areallowed. Thus in Doorson v. Netherlands 23 the Court recognisedthat the security of witnesses against threats and reprisals mustbe safeguarded, that their anonymity was therefore justifiable,and that this would "present the defence with difficulties whichcriminal proceedings should not normally involve." The Courttherefore insisted that it must be:57