Joint Committee on Human Rights First Report


Annex 2

Explanations of some important terms employed in the text

LEGAL CERTAINTY

The principle of legal certainty, well known in European law, requires that if an interference with a right is to be justifiable, it must be lawful, and that:

(1)  the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case;

(2)  a norm cannot be regarded as law unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able-if need be with appropriate advice-to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.[119]

In the European Convention on Human Rights, this idea is expressed in terms such as 'prescribed by law', 'in accordance with the law', 'lawful', and 'in accordance with a procedure prescribed by law'. The following are examples of the application of these principles.

The European Court of Human Rights held in Malone v. United Kingdom[120] that the method of regulating interception of communications then current in the United Kingdom, which permitted interference with the right to respect for private and family life, home and correspondence (ECHR, Article 8.1), could not be justified under Article 8.2. It was not 'in accordance with the law', because interceptions were authorised by administrative practices which had no legal foundation, and English law did not allow the target of an interception any remedy.

The European Court of Human Rights held in Steel and others v. United Kingdom[121] that arrest for breach of the peace was lawful under the Convention because the requirement for violence or a threat of violence, which is a necessary element in a breach of the peace in England and Wales and Northern Ireland (although probably not in Scotland) set a sufficiently determinate standard. By contrast, in Hashman and Harrup v. United Kingdom,[122] the Court held that binding over anti-hunting protesters to be of good behaviour violated Article 10, because the contra bonos mores standard involved no threat of violence and was otherwise too vague to be 'prescribed by law' under Article 10.2.

NECESSITY

If an interference with a Convention right is to be justifiable, it must normally be shown to be 'necessary in a democratic society'. This requirement protects people against arbitrariness, including the excessive use of public powers. The European Court of Human Rights has explained this principle as follows:

...whilst the adjective 'necessary'... is not synonymous with 'indispensable'..., neither has it the flexibility of such expressions as 'admissible', 'ordinary'..., 'reasonable'... or 'desirable'. Nevertheless, it is for national authorities to make the initial assessment of the reality of the pressing social need implied by the notion of 'necessity' in this context.

...[T]he principles characterising a 'democratic society' [include in Article 10 freedom to express] not only 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no 'democratic society'. This means, among other things, that every 'formality', 'condition', 'restriction' or 'penalty' imposed in this sphere must be proportionate to the legitimate aim pursued.[123]

Justifying an interference as necessary in a democratic society thus involves showing that there was a pressing social need to take action in order to advance a legitimate aim, and that the response is proportionate to the aim.

PROPORTIONALITY

Proportionality is a principle which requires decision-makers, contemplating an interference with a right, to balance the severity of the interference with the intensity of the social need for action. Proportionality has a number of elements. They have never been codified, but the following factors are often relevant.[124]

1.  An interference must not take away the very essence of a right. For example, when a Swiss court made an order preventing someone from making statements about the alleged dangers of microwave ovens, the interference with his right to freedom of expression was disproportionate because it entirely prevented him from expressing his views on that subject.[125]

2.  There must be a sufficient factual basis for believing that there was a real danger to the interest which the State claims there was a pressing social need to protect. For example, action by the Austrian Government to prevent distribution of a periodical to soldiers in order to preserve discipline was held to be disproportionate when the European Court of Human Rights was not satisfied that the content of the periodical had represented a serious threat to discipline.[126]

3.  The State's measure or act must interfere with the right in question no more than is reasonably necessary in order to achieve the legitimate aim. This calls for an assessment of both the extent of the interference and of the relative merits of different ways of pursuing the aim.

4.  Measures are likely to be regarded as disproportionate if they impose heavy burdens on one individual or group, apparently arbitrarily, in order to achieve a social benefit, or if they impose penalties which appear to be excessive in relation to the circumstances of the offence to which they relate.

5.  The effectiveness of any legal controls over the measures in question, and the adequacy of compensation or legal remedies for those affected by the measures, will be relevant to the proportionality of any interference.

6.  All these matters fall to be assessed in the light of the circumstances, and must be reassessed when circumstances change.

FAIR TRIAL, AND THE EFFECT OF REVERSE-ONUS RULES AND EVIDENTIAL PRESUMPTIONS

The right to a fair trial of a criminal charge includes the right to be presumed innocent until proved guilty according to law. This is a fundamental principle of law both in the national legal systems of the United Kingdom and under ECHR Article 6.2. Anything which threatens the principle, such as a rule placing the burden of establishing innocence on the accused, has implications for the fairness of the trial as a whole. In Salabiaku v. France[127] the European Court of Human Rights held that provisions which strip the trial court of 'any genuine power of assessment and deprive the presumption of innocence of its substance' would be incompatible with:

 'the object and purpose of Article 6, which, by protecting the right to a fair trial and in particular the right to be presumed innocent, is intended to enshrine the fundamental principle of the rule of law ... Article 6(2) does not therefore regard presumptions of fact or law with indifference. It requires states to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence.'

Under the Human Rights Act 1998, the principles of Article 6.2 apply in the United Kingdom alongside pre-existing principles of national law. It remains to be seen how (if at all) this will affect criminal procedure. In R. v. Lambert and others[128] (a case decided before the Human Rights Act 1998 came fully into force but giving guidance on its likely effect) Lord Woolf CJ, giving the judgment of the Court of Appeal, noted that while the common law is 'fiercely resistant to a burden of proof being placed on a defendant',[129] Parliament can introduce statutory exceptions, although, 'When it does so it must use clear language if it is successfully to achieve its purpose.'[130] Lord Woolf expressed agreement with a dictum of Lord Hope of Craighead to the effect that Article 6 requires a fair balance to be struck between 'the demands of the general interest of the community and the protection of the fundamental rights of the individual.'[131] Lord Woolf continued:[132]

'In doing this it is important to start with the structure of the offences. If the defendant is being required to prove an essential element of the offence this will be more difficult to justify. If, however, what the defendant is required to do is establish a special defence or exception this will be less objectionable. The extent of the inroad on the general principle is also important.... It is also important to have in mind that legislation is passed by a democratically elected Parliament and therefore the courts under the Convention are entitled to and should, as a matter of constitutional principle, pay a degree of deference to the view of Parliament as to what is in the interest of the public generally when upholding the rights of the individual under the Convention. The courts are required to balance the competing interests involved.'

It seems likely that courts will adopt this general approach, but its effect on particular statutory provisions in different circumstances will not always be easy to predict.

FAIR TRIAL, AGENTS PROVOCATEURS AND ENTRAPMENT

Sometimes the fairness of a hearing may be affected by methods used to investigate the case before the hearing begins. For example, where investigators induce a person to commit an offence in order to allow them to arrest and charge him, they can be seen as being to some extent implicated in the commission of the offence. The question then arises whether a trial for the offence, which makes use of the evidence of officers who have instigated or participated in the commission of the offence, can be said to be 'a fair hearing' within the meaning of ECHR Article 6.1. The case-law of the European Court of Human Rights establishes that using evidence tainted by acts done before the trial begins can affect the fairness of the hearing. In relation to the use of evidence obtained by entrapment, agents provocateurs and surreptitious surveillance, the outcome depends on a delicate exercise of judgment taking account of a number of factors.

In Teixeira de Castro v. Portugal[133] the European Court of Human Rights decided that there had been a violation of Article 6.1 when a person was convicted of drug dealing having been approached by undercover police officers who asked him to procure heroin for them. They had no reason to suppose that he was a drug dealer. He agreed to supply the heroin, and bought some for that purpose. The evidence of his sale to the undercover officers was the basis of his conviction. In those circumstances, the Court held that the accused had not had a fair trial. The Court set out two tests for the fairness of a trial using evidence from entrapment. First, if officers instigate an offence, and there is no evidence that it would have been committed without their instigation, the evidence will have been unfairly obtained. Secondly, the use of the evidence of the agent provocateur in those circumstances makes the trial unfair.

If this case stood alone, it would be necessary for officers seeking to employ the provisions of clause 33 to ensure that the technique is used only against those who are suspected of having already committed similar offences, and that the youth under the direction of the officers does not pressurise the licensee into selling the alcohol, in order to avoid the trial violating Article 6.1. However, in Schenk v. Switzerland,[134] where covert police methods had been used against a suspected drug dealer, the Court stressed that questions relating to the admissibility of evidence were primarily a matter for the national courts, a view reiterated in Teixeira de Castro. In Khan v. United Kingdom,[135] the Court indicated a willingness to defer to the national court's assessment of the effect of admitting particular pieces of evidence on the fairness of the trial overall, as long as the national law (in that case, section 78 of the Police and Criminal Evidence Act 1984) allowed the effect on the fairness of proceedings to be fully considered.

It remains to be seen how far this will affect the approach of judges in the United Kingdom to such cases under the Human Rights Act 1998.


119   Sunday Times v. United Kingdom, Eur. Ct. HR, Judgment of 26 April 1979, Series A, no. 30, 2 EHRR 245, at para. 49 of the Judgment. Back

120   (1984) 7 EHRR 14. Back

121   (1999) 28 EHRR 603. Back

122   (1999) 30 EHRR 241. Back

123   Handyside v. United Kingdom, Eur. Ct. HR, Series A, No. 24, Judgment of 12 December 1976, 1 EHRR 737, at paras.48-49 of the Judgment. Back

124   Fuller discussions are provided by D. J. Harris, M. O'Boyle and C. Warbrick, Law of the European Convention on Human Rights (London: Butterworths, 1995), 290-301; Jeremy McBride, 'Proportionality and the European Convention on Human Rights', in Evelyn Ellis (ed.), The Principle of Proportionality in the Laws of Europe (Oxford: Hart Publishing, 1999), 23-35. Back

125   Hertel v. Switzerland (1998) 28 EHRR 534. Back

126   Vereinigung Demokratischer Soldaten Österreichs and Gubi v. Austria (1995) 20 EHRR 56. Back

127   (1988) 13 EHRR 379 at p. 388, para. 28. Back

128   [2001] 2 WLR 211. Back

129   Ibid. at para. [8], p. 217. Back

130   Ibid. at para. [9], p. 217. Back

131   R. v. Director of Public Prosecutions, ex parte Kebilene [2000] 2 AC 326 at p. 384. Back

132   [2001] 2 WLR at p. 219, para. [16]. Back

133   Eur. Ct. HR, (1998) 28 EHRR 101. Back

134   Eur. Ct. HR, (1988) 13 EHRR 242. Back

135   Khan v. United Kingdom, Eur. Ct. HR, Judgment of 12 May 2000. Back


 
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Prepared 26 April 2001