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

Evaluating the Strasbourg and British approachesnot simply a question of considering whether there is a significantpublic interest in compelling a person to speak: the Court'sdismissal of the Irish Government's "fight against terrorism"argument in Heaney and McGuinness makes that clear. 65 Proportionateor not, the compulsion to speak destroyed the essence ofthe right and rendered it ineffective. That case would surely nothave been decided differently if emphasis had been placed onthe fact that the applicants had been asked "a single, simplequestion." 66 Moreover, compulsion arising from financial penaltiesmay be sufficient to invoke the privilege, as the Funke andJ.B. decisions demonstrate, so the argument that section 172 ofthe Road Traffic Act 1988 prescribes only modest penaltiesshould not, of itself, save it from incompatibility with Article 6. 67One particular distinction between the prevailing Strasbourgand British approaches is that, although they share the view thatthe rights in Articles 5 and 6 are not absolute, they differ as towhat this means. For the British judges, it is taken to indicate thepropriety of balancing the right against public interest considerations,and the reliance on a concept of proportionality asbroad as that applied in Articles 8-11. To the Strasbourg judges,it is not usually treated as opening the way to a generalbalancing exercise, and in the rare situations where the specialforce of public interest considerations is recognised, it is taken torequire a three-way adjustment between the essence of the rightitself, the public interest considerations, and safeguards for thesuspect or defendant. This triangulated approach 68 was taken inDoorson v. Netherlands, 69 for example, and we shall see in thethird lecture that the provision of safeguards is often taken to bea significant indicator of an overall commitment to fairness.None of this is to suggest that the approach of the StrasbourgCourt is unproblematic. The decisions discussed extensively insection B above appear powerful when read alone, but it is notclear how they would stand with decisions such as Salabiaku v.France, Ashingdane v. United Kingdom, and the others mentionedin part (i) of this section. The Court has never considered howthe "essence" doctrine applies to other rights implied intoArticle 6, let alone how it applies to the presumption of innocencein Article 6(2), so readily balanced away in Salabiaku. 70 Nor hasthe Court considered in one judgment the various streams ofauthority on silence and self-incrimination. The decision in J.B.v. Switzerland fails to mention Heaney and McGuinness v. Ireland,probably the most striking case. Both Heaney and McGuinnessand Saunders accept that the privilege against self-incriminationis not absolute, but it has not yet emerged what the significanceof this qualification is. Both Saunders and J.B. insist that the66