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

Evaluating the Strasbourg and British approachesC. BRITISH COURTS AND THE"PUBLIC INTEREST"It has been and remains the position that, where the StrasbourgCourt hands down a decision adverse to the government of aMember State, that government is obliged (through the mechanismof the Committee of Ministers) to give effect to thedecision. Since the implementation of the Human Rights Act1998, British courts also have certain direct obligations to applyConvention rights: section 6 requires courts and other publicauthorities to act in conformity with Convention rights, section 3requires courts to interpret legislation so far as is possible in away that applies the Convention, and section 2 requires courtsto take account of the decisions of the Strasbourg organs,notably the Court.In the first year or so since the implementation of the 1998 Acton October 2, 2000, the courts of England and Wales haveinvoked "public interest" arguments with some frequency whendealing with Convention rights. The Act has been in forcelonger in Scotland: the courts there have been less stronglydrawn to the use of "public interest" arguments to limit theeffect of Convention rights, but we will see that the PrivyCouncil has relied on "public interest" arguments to overturnthe Scottish courts on more than one occasion. First, however,we must go back to the Strasbourg jurisprudence. The decisionsdiscussed in sections A and B above have not been prominent inthe reasoning of the English courts. Instead, their attention hasfocused on a different strand of authorities, not surprisinglythose which recognise that certain rights can be "balanced"against the "public interest". We must consider two sets ofthose authorities briefly, before going on to describe theapproach of the House of Lords and Privy Council.(i) Scattered Strasbourg Authorities on "Balancing":First, even though it has been accepted that the right to a fairtrial should not be "balanced" against other goals, leadingBritish judges have adopted the view that there is room forbalancing when deciding whether the trial has been fair. 36 Inadopting this approach, they have taken their cue from a smallnumber of over-broad statements made by the StrasbourgCourt, 37 and have paid little attention to the authorities set out inpart B above. It is true, however, to say that there is oneStrasbourg decision on Article 6 which does appear to favour62