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

Evaluating the Strasbourg and British approachesestablished that the handicaps under which the defence labouredwere sufficiently counterbalanced by the procedures followed by thejudicial authorities. 24In this case the "counter-balancing" procedures were that theanonymous witnesses were questioned by the judge in thepresence of defence counsel, who had an opportunity to askquestions, and that defence counsel were able to challenge thestatements of the anonymous witnesses and to cast doubt on thereliability of their evidence. Of course the defence were handicappedbecause they did not know the identity of the witnessesand could therefore not attack their character. The Court alsothought it relevant that in this case there was other significantevidence of the applicants' guilt. It is particularly important tonote that this decision was reasoned on the basis of a clashbetween the defendant's rights (to a fair trial under Article 6)and the rights of witnesses (to physical security under Article 5),and not on the basis of a conflict between the defendant's rightsand a broader public interest in the suppression of seriouscrime. The Court saw itself as protecting the rights of particularwitnesses. 25All the decisions on Article 6 considered so far have concernedthe right of a defendant to confront witnesses againsthim or her, and the extent to which this can be restricted. Arather different issue under Article 6 is whether a defendant'sprivilege against self-incrimination can be restricted when thereare said to be public policy reasons for doing so. One differencehere is that the right of silence and the privilege against selfincriminationare rights that have been implied into Article 6.They are not expressly stated in the Convention, but aredeclared in other human rights documents such as the InternationalCovenant on Civil and Political Rights (Article 14), andthe Strasbourg Court has taken the view that they should beregarded as essential elements in the right to a fair trial. Thusthe Court in Saunders v. United Kingdom held that:although not specifically mentioned in Article 6 of the Convention,the right to silence and the right not to incriminate oneself aregenerally recognised international standards which lie at the heart ofthe notion of a fair procedure under Article 6. Their rationale lies,inter alia, in the protection of the accused against improper compulsionby the authorities, thereby contributing to the avoidance ofmiscarriages of justice and to the fulfilment of the aims of Article 6.The right not to incriminate oneself, in particular, presupposes thatthe prosecution in a criminal case seek to prove their case against theaccused without resort to evidence obtained through methods of58