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The European Convention On Human Rights Law Essay

“the Convention made a clandestine entry into British law by the back door, being forbidden to enter by the front.” [4] 

With the passing of the HRA by the Labour government, courts and tribunals are now under a duty to interpret legislation so far as possible in a way that is compatible with the rights enshrined in the Convention (section 3(1)). If this cannot be done, the legislation remains in effect but, under s.4, a declaration of incompatibility is issued. The immediate influence upon the English legal system is clear. As noted by Lord Hope:

“the incorporation of the European Convention on Human Rights into our domestic law […] subject[s] the entire legal system to a fundamental process of review and, where necessary, reform by the judiciary.” [5] 

When considering its influence more specifically upon the English law of Evidence, it is the incorporation of Article 6, guaranteeing the right to a fair trial, which has arguably made the biggest impact. This assessment will focus upon the way courts reconcile reverse burden provisions with a defendant’s rights under art.6(2) and the compatibility of hearsay evidence with his rights under art.6(3)(d). The overarching objective of the courts is to ensure that the rights of the defendant are not unjustifiably or disproportionately infringed in pursuit of protecting the community as a whole.

Art.6(2) states that:

“(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

This mirrors the common law approach to the presumption of innocence, memorably summed up by Viscount Sankey in Woolmington v DPP:

“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to […] the defence of insanity and subject also to any statutory exception.” [6] 

Under this rule, the persuasive burden rests upon the prosecution, extending to every issue in a criminal trial; the prosecution must prove the actus reus, mens rea and lack of defence. Considering the repercussions of conviction upon the defendant, not least the potential loss of liberty, it seems just that it should fall to the prosecution to prove the defendant’s guilt beyond reasonable doubt, rather than to the defendant to prove his innocence. The presumption of innocence therefore gives more weight to the defendant’s right not to be falsely convicted than to the rights of the community to enforce the law. As Sankey notes, however, this may be subject to qualification. Should the accused rely upon the defence of insanity, the burden of proving this lies with the defendant. [7] Of particular interest to evidence law is the effect of the Convention upon the statutory exceptions, now manifold, [8] that shift the persuasive burden to the accused. A reverse burden increases both the likelihood of the prosecution securing conviction and the risk of that conviction being erroneous, so may appear to be incompatible with the presumption protected by art.6(2). However, looking at ECtHR case law confirms that this is not an absolute right. Presumptions of fact and law are permissible if they strike a fair balance between the rights of the defendant and the community and are confined to reasonable limits. [9] The courts must decide whether a reverse burden is both justified and proportionate, or if it represents an infringement of the defendant’s right to avoid mistaken conviction. However, as will be demonstrated, the complexity of issues considered in balancing these rights prevents the operation of a clear cut compatibility test.

It is important to distinguish between a reverse persuasive burden and, from the perspective of Convention compatibility, the less problematic reverse evidential burden. A reverse persuasive burden serves a similar purpose to the presumption of innocence, i.e. achieving a fair balance between competing rights, but favours the community interest in law enforcement. The defendant must prove his innocence on the balance of probabilities, increasing the risk of mistaken conviction. In contrast, a reverse evidential burden requires the defendant to adduce sufficient evidence of an exculpatory matter to satisfy the judge that it should be left to the jury for consideration. The persuasive burden remains with the prosecution to prove, beyond reasonable doubt, that such a defence is not available. As such, reverse evidential burdens do not infringe art.6(2). This means that if the imposition of a reverse persuasive burden on the defendant is held to be incompatible, courts can read it down under s.3(1) HRA as an evidential burden. This avoids the need to make a declaration of incompatibility under s.4, held to be a last resort.

The leading statements from the judgments of the House of Lords assist in understanding the criteria upon which courts differentiate on compatibility with the Convention. Dennis rightly suggests that judicial deference to the will of parliament is key when assessing the legitimacy and proportionality of reverse burdens. [10] In R v Johnstone, [11] Lord Nicholls confined the court to the role of legislative review, reinforcing the concept of separation of powers, noting that it is Parliament, not the court, which is responsible for policy decisions on the constituent elements of a criminal offence. He observed that the court would only deviate in conclusion from the legislature if the latter had attached insufficient importance to the presumption of innocence. Lord Wolf C.J. deferred further, putting forward an assumption that Parliament would not derogate from the presumption without good reason. [12] However, in Sheldrake, Lord Bingham voiced his concerns about the danger of such an approach, stating that it “may lead the court to give too much weight to the enactment under review and too little to the presumption of innocence and the obligation imposed on it by section 3.” [13] 

S.3 of the HRA enables courts to read down legislation so that it does not stand in conflict with Convention rights. Regarding the legitimacy of an act at a substantive level, it is highly unlikely that the judiciary will take issue with the social and economic aims of Parliament in enacting criminal legislation. Courts feel more comfortable when reviewing the proportionality of reverse burdens, a procedural issue in line with their constitutional function of upholding the rule of law. Derogation from the presumption must be proportionate to the aims and objectives at the heart of the legislation under review. Parliament must not remove more rights than is necessary. A diminution of the rights of the defendant, though facilitating law enforcement, increases the risk of a mistaken conviction – these rights should be balanced with those of the community.

The seriousness and associated classification of the offence impact upon compatibility of a reverse burden with the Convention. If an act is truly criminal, an interference with the presumption is less likely to be upheld than if the reverse onus is applied to an act regulated in the public interest. The justification for this distinction is that “the degree of censure, punishment and stigma flowing from conviction varies for different charges, and there will be a corresponding variation in the injustice of an erroneous conviction.” [14] A mistaken conviction arising from a regulatory offence is held to be more tenable because the punishment is theoretically less severe. House of Lords decisions on the application of art.6(2) follow this distinction. In R v Lambert, [15] the imposition of a persuasive burden on the defendant in connection with a serious drugs offence was held to be incompatible with art.6(2). Under the Misuse of Drugs Act 1971, the prosecution only needed to prove the defendant had in his possession, and knew that he had, a bag that contained controlled drugs. To establish a defence under s.28(3) of the same act, the accused had to prove on the balance of probabilities that he did not know that the bag contained a controlled drug. The burden was therefore legal rather than merely evidential. The charge carries a maximum penalty of life imprisonment. Mindful of what was at stake, Lord Clyde commented that if any error were to be made in weighing the scales of justice, it should be that the guilty go free, rather than an innocent person wrongly convicted. As Lord Steyn pointed out, such a reverse burden would compel a jury to convict if the defendant adduces sufficient evidence to raise a doubt as to his guilt but the jury remains unconvinced on the balance of probabilities that his account is true. The defence was so closely linked with mens rea that the transferral of the legal burden to the defendant would derogate from the presumption of innocence. As such, s.3 of the HRA was applied and references to proof were read down as intending an evidential burden rather than a persuasive one.

By way of comparison, the House of Lords upheld the reverse persuasive burden in R v Johnstone, [16] which concerned an infringement of trademark, even though the derogation from art.6(2) was clear. The defence centred upon the reasonable belief of the accused that no trade mark had been registered. Counterfeiting has far reaching social implications, damaging genuine economic trade and potentially endangering the safety of citizens. The offence is regulatory in nature, rather than truly criminal, so the objective is to protect the interests of the public. As Lord Nicholls remarked:

“those who trade in brand products are aware of the need to be on guard against counterfeit goods. They are aware of the need to deal with reputable suppliers and keep records and of the risks they take if they do not.” [17] 

The voluntary participation of the accused in a regulated activity from which benefit is derived suggests an acceptance of the risk of being held to account for any wrongdoing in carrying out that activity. Furthermore, the burden on the accused concerned facts that would be easy for him to prove as these were within his own knowledge or certainly easy for him to access. The defendant’s right to avoid an erroneous conviction was outweighed by the exigency factor, an unusual situation, and one only likely to occur in a regulatory offence, where the injustice of a wrongful conviction is perceived to be reduced. Thus, the loss of protection suffered by the defendant was considered justified and proportionate. However, assessing reverse burden compatibility by differentiating between truly criminal and regulatory acts on seriousness may prove controversial in light of the significant penalties attached to some regulatory wrongs. In this case, the regulatory offence was actually punishable by a maximum penalty of unlimited fine, 10 years in prison or both. The potential gravity of this consequence blurs the distinction between punishment emanating from offences that are truly criminal and those that are regulatory in nature – in this case the stigma and censorship are no less significant. A wrongful conviction would therefore be equally unjust.

Allied to seriousness is the element of the offence to which the reverse burden applies. As Hamer points out, provided the prosecution must prove the gravamen of the offence beyond reasonable doubt, then a reverse burden on an incidental matter may still be in line with art.6(2). [18] This is not to suggest that differentiating between crucial and peripheral matters is a simple task, but it has been held as a central issue. In Attorney General’s Reference No. 4 of 2002, [19] Lord Bingham (for the majority) objected to a reverse burden which operated on the essence of the offence. Under s.11(2) of the Terrorism Act 2000, it was for the accused to prove by way of defence that an organisation was not proscribed when he had joined or professed membership, and that he had not been active in the organisation once proscribed. The risk of mistaken conviction of a defendant who was innocent of any blameworthy or properly criminal conduct was unjustifiably increased. Linked to this is the concept of practicality of proof, which is offered by way of justification for a reverse burden. The balance of proof is ordinarily tipped in favour of the defendant – the burden on the prosecution is always higher, in line with the presumption of innocence. However, as per Hamer, in cases of an extraordinary imbalance a reverse burden may be justified, though an evidential burden, rather than persuasive, may be sufficient. In regulatory cases, for example, it may be less onerous for the defendant to prove he was qualified to act, rather than for the prosecution to prove to the contrary. So, in R v Halton Division Magistrates Court, [20] the reverse persuasive burden put upon the defendant to prove that trees were felled without a licence in a permitted situation was deemed necessary. Had it been on the prosecution, it would have required the negation of every possible justification for felling trees without a licence. Similarly, a matter that is in the defendant’s peculiar knowledge may be seen to imbalance the scales, and is cited as justification for a reverse burden, though the argument for this seems weak. While it is correct that the defendant may possess the knowledge that legitimates the disputed act, to uphold the presumption of innocence it is necessary for the prosecution to prove all elements of the crime, including the mens rea, pertaining to the state of mind of the defendant and often inferred from objective evidence. Therefore, such a pragmatic consideration is unlikely to carry weight with the court as justification for a reverse burden for a truly criminal act.

As has been demonstrated, the reconciliation of reverse burdens with the Convention is not a simple task and requires a case by case approach, rather than the application of a catch-all solution. As Lord Bingham wisely noted:

“The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case.” [21] 

However, the public interest in avoiding the wrongful conviction of the innocent will always take precedent over the public interest in ensuring a criminal is punished for his act and as such a defendant’s rights under the Convention are preserved.

The admission of hearsay evidence in trials is another contentious issue, due to the perceived conflict with art.6(3)(d):

“(3) Everyone charged with a criminal offence has the following minimum rights:…

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”

Generally, hearsay evidence is not admissible in a criminal trial, the purpose of which is to hear and test all evidence pertaining to the alleged commission of a crime. The potential weakness of hearsay evidence is that there is no opportunity for cross-examination, the means of testing the accuracy and truthfulness of the evidence tendered, so its admission may introduce mistake, ambiguity and dishonesty to the proceedings. However, a total exclusion of such evidence (where relevant to the trial) produced injustice, and as such a number of exceptions to the rule arose in the common law and statute. The law of hearsay therefore became complex and inconsistent. In his review, [22] Sir Robin Auld advocated a move away from the strict rules on inadmissibility of hearsay in criminal proceedings, instead trusting fact finders to give relevant evidence the weight it deserves. He was simultaneously mindful of promoting a fair trial for the defendant. The Law Commission conducted a review into the subject, reporting in 1997. [23] Much consideration was given to reconciling the rules on hearsay with the rights protected by the Convention, and particularly art.6(3)(d). The Government’s White Paper also championed a more inclusionary approach, noting:

“it is important to ensure that when witnesses are testifying, that rules of evidence do not artificially prevent the true and full story from being presented to the court. Justice is not served if important information is excluded for no good reason.” [24] 

Parliament subsequently enacted the recommendations under new statute codifying all issues of hearsay in criminal proceedings (Part 11, Chapter 2 of the Criminal Justice Act 2003) and abolishing previous common law and statutory exceptions.

The CJA 2003 does not make hearsay generally admissible, but prescribes a framework under which such evidence may be included, providing it belongs to certain categories or meets certain stipulations. The code preserves certain specified common law exceptions to the rule against admissibility of hearsay (s.114(1)(b) and 118). It lists a limited number of categories where hearsay evidence is admissible upon satisfaction of certain conditions (s.114(1)(a) and (c), 116-117, 119-120 and 127-129). Thus, where a witness is unavailable, hearsay evidence may still be admissible under s.116(1)(b) if the witness is identified to the court’s satisfaction and provided at least one of the criteria under s.116(2) is satisfied. These criteria include instances where the witness is unavailable due to death, bodily/mental fitness, the inability to locate the witness, and witness’ fear associated with giving evidence against the defendant. As regards compatibility with the right to a fair trial under the Convention, this is a potentially controversial area, due to the inability of the defendant to challenge or cross examine the witness, which conflicts with the minimum right of confrontation granted by art.6(3)(d). However, s.124 deals with credibility of the hearsay source and potentially works in favour of the defendant, counterbalancing any disadvantage he is under as a result of being deprived of the opportunity to cross examine the witness. Under s.124(2)(a), the defence may admit evidence pertaining to the credibility of the absent witness; under s.124(2)(b) the defence may put in material that, had the witness been present, could only have been asked of him in cross examination where his answers would have been final. It is argued that the defendant is therefore in a better position where the witness is absent, counterbalancing any disadvantage. Under s.125 the judge must stop a case that is dependent wholly or partly on hearsay evidence where that evidence is unconvincing the point that any conviction based upon it would be unsafe. These safeguards are intended to address any potential infringement of the defendant’s convention rights. An examination of some recent cases will suggest that the legislation has failed in its aim as far as the ECtHR is concerned.

The stance of the ECtHR on the compatibility of hearsay evidence with art.6 was made clear in the case of Luca v Italy. [25] The applicant appealed against a drug trafficking conviction made on the basis of statements of a witness whom he had never been given an opportunity to examine or have examined. Regarding the admission of such evidence, the ECtHR stated that it was “primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court's task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair.” [26] It was noted that art.6(1) and art.6(3)(d) require that the defendant be given adequate opportunity to challenge and question a witness against him. Following on from this, a conviction that is based solely or decisively upon hearsay depositions made by a witness whom the accused has had no opportunity to examine or have examined (whether during the investigation or the trial) represents an incompatible violation of his rights under the Convention. Therefore, the ECtHR held that the defendant’s rights under art.6(1) and (3)(d) had been infringed and he was awarded damages.

This result had subsequent repercussions for the English legal system. In the conjoined case of Al-Khawaja and Tahery v United Kingdom, [27] the applicants cited Luca and argued that in allowing the admission of hearsay evidence, their respective rights under the Convention had been similarly violated. Al-Khawaja, a doctor, was convicted on two counts of indecent assault on a female patient. The hearsay evidence, admitted under s.23 of the Criminal Justice Act 1988, was from the complainant witness, ST, who committed suicide for reasons unrelated to the assault after making the statement to the police. Tahery was convicted on one count of wounding with intent to do grievous bodily harm. At the voir dire, T, the eyewitness, gave evidence from behind a screen and was too frightened to testify before a jury at the trial. The judge was satisfied that T’s fear was genuine. Both death and fear qualify as triggers for the admission of hearsay evidence under s.116 of the CJA 2003 (though the judge must give leave in the case of fear). Following unsuccessful appeals in the domestic system (the Court of Appeal holding that the statements were admissible and that the convictions were safe) the applicants sought to enforce their Convention rights at Strasbourg. The ECtHR held that a breach of art.6 had arisen in each case, because the convictions had been based solely or decisively on statements which the appellants had no opportunity to challenge. Such a situation compromised the fairness of the trials, by denying the defendants the minimum right to question a witness tendering evidence that proved to be “sole or decisive” to the subsequent conviction. The UK Government requested this decision be referred to the Grand Chamber. In assessing whether it should be bound the decision in Al-Khawaja, the considerations of the ECtHR were critically reviewed by the Court of Appeal in R v Horncastle. [28] ECtHR case law on art.6(3)(d) was held to fall into two categories – cases where the witness is anonymous and those where he is identified but absent and therefore not available for cross examination by or on behalf of the defendant. It should be noted that the CJA 2003 is concerned with identified but absent witnesses and does not permit the admission of evidence from anonymous sources. The concept of a conviction being based “solely or decisively” on hearsay evidence came about in Doorson v The Netherlands, [29] which was a case concerning anonymous witnesses. However, in that case the defence had an opportunity to examine the witnesses, which was held a sufficient counter-balancing measure so as to avoid conflict with art.6. The Doorson formulation was subsequently reiterated in other cases where breaches were asserted, such as Van Mechelen v The Netherlands, [30] and Luca. These cases again featured hearsay from anonymous witnesses as the sole evidence against the defendant. The Court of Appeal in Horncastle went to great lengths to point out that balancing exercises for evidence from anonymous witnesses are different from those for identified but absent witnesses. The ECtHR held that none of the counterbalancing measures deployed by the Court of Appeal or codified within the CJA 2003 was sufficient to negate the prejudice caused to the defendants by the admission of hearsay. Bearing in mind that the CJA 2003 was drafted to ensure compatibility with the Convention, and that sections within it are based upon precedent set by the Strasbourg court, [31] the findings of the ECtHR were seen as damning criticism of the Court of Appeal’s approach to art.6(3). Any potential disadvantage to the defendant arising from the admission of hearsay evidence under this statute is intended to be addressed by three safeguards: s.124 permits the admission of evidence to challenge the credibility of absent witnesses (subject to conditions under s.124(2)); s.125 enables the judge to halt the trial where the hearsay is unconvincing; and s.126 allows judiciary discretion to exclude hearsay where the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence. The ECtHR found all three incapable of offsetting this disadvantage. This could be seen as Strasbourg attempting to exert the influence of the Convention beyond what had been anticipated by the 10 countries of the Council of Europe when it was originally drafted. As Lord Hoffman highlighted, signing a common statement on fundamental human rights does not connote acceptance of a uniform application of those rights across the signatory countries, and such a situation is now even more untenable as membership of the Council of Europe has swollen to 47 countries:

“Because, for example, there is a human right to a fair trial, it does not follow that all the countries of the Council of Europe must have the same trial procedure. Criminal procedures in different countries may differ widely without any of them being unfair. Likewise, […] the trade-offs which must be made between individual rights and effective government, or between the rights of one individual and another, will frequently vary from country to country, depending upon the local circumstances and legal tradition.” [32] 

The influence of the Convention on the English law of evidence has been extensive, prompting review and redrafting of key statutes. Though some may argue that the incorporation of a framework to protect human rights within English law is a positive thing, it is clear that the UK courts resent what Hoffman describes as intervention “in the details and nuances of the domestic laws of Member States.” [33] Criticism of the ECtHR’s ability to make decisions on whether the domestic law in a Member State protects or infringes the human rights of a defendant originates from the composition of the court. The ECtHR comprises a judge from each Member State of the Council of Europe (47 in total). Thus, it is questionable that a court which is undeniably international in makeup is qualified to make judgment on the implementation of the Convention rights within a specific Member State, for example to the point of contradicting decisions on the admission of hearsay evidence made by the Court of Appeal in the Al-Khawaja case. Surely, such decisions are best left to the domestic governments and courts, being sufficiently proximate as to better understand the effective application of those rights within their legal systems? However, such criticism overlooks the importance of the independence of such a court that comes from an international composition. The Convention was drafted by the Council of Europe after the Second World War in response to human rights atrocities that had occurred in states under the control of dictator-lead, totalitarian governments during the period. The purpose was to safeguard the human rights of European citizens via a common framework to be supported by democratically run governments, thus removing the threat of further warfare that a totalitarian system of government might revive. One need only look to the expanded membership of the Council of Europe (particularly the admission of Central and Eastern European countries) to appreciate that for some Member States, the spectre of a totalitarian system of government is not yet a distant memory. The ECtHR was established under art.19 of the Convention to ensure that all contracting Member States conformed to their obligations under the Convention, according these rights to everyone within their jurisdictions. As such, the Member States must generally accept its judgments as binding upon them. In the UK, a relevant judgment of the ECtHR must be taken into account when determining a question linked to a right protected by the Convention. The impartiality of the Strasbourg court that derives from its pan-European composition represents a further layer of protection for citizens from human rights infringements, testing alleged national violations against citizens at an international level. Therefore, the influence of the Convention upon the laws of Evidence in England and the impartial enforcement of the rights by the ECtHR, though often perceived as inconvenient, must be accepted. The only way to avoid this would be by repealing the HRA, and given the current international climate of human rights violations (especially in North Africa and the Middle East), such an action would be symbolically difficult for the UK and as such is highly unlikely.

WORKS CITED AND BIBLIOGRAPHY

Ashworth, A. and Blake, M. [1996]. ‘The Presumption of Innocence in English Criminal Law’,

Crim.L.R. 306.

Lord Bingham, ‘The Way We Live Now: Human Rights in the New Millennium’, The Earl

Grey Memorial Lecture, University of Newcastle upon Tyne, 29 January 1998.

Choo, A. (2009). Evidence. New York: Oxford.

Dennis, I. [2005] ‘Reverse Onuses and the Presumption of Innocence’, Crim.L.R 901.

Hamer, D. [2007] ‘The Presumption of Innocence and Reverse Burdens: a Balancing Act’,

C.L.J. 142.

Lord Hoffman, ‘The Universality of Human Rights’ (Speech at the Judicial Studies Board

Annual Lecture, March 2009) <http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/Hoffmann_

2009_JSB_Annual_Lecture_Universality_of_Human_Rights.pdf>

Malek, H., ed. (2009). Phipson on Evidence (17th Ed.). London: Sweet & Maxwell.

Pattenden, R. [2009] ‘Al-Khawaja v United Kingdom (26766/05): Rule Against Hearsay’, E&P

232.

Steventon, B. [2009] ‘Al-Khawaja v United Kingdom (26766/05): Criminal Evidence –

Admissibility of Hearsay Evidence’, Cov. L.J. 37.

REPORTS AND PAPERS

Auld LJ, ‘A Review of the Criminal Courts of England and Wales’, [2001].

Justice for All (White Paper, CM 5563, 2001).

Law Commision, Evidence in Criminal Proceedings: Hearsay and Related Topics (Law Com

No. 245, 1997).

CASES

M’Naghten’s Case [1843] UKHL J16

R v DPP, Ex. p. Kebilene [2000] 2 A.C. 326

R (on the application of Grundy & Co. Excavations Ltd) v Halton Division Magistrates Court

[2003] EWHC 272

R v Horncastle [2009] UKSC 14 (SC)

R v Johnstone [2003] UKHL 28

R v Lambert [2001] UKHL 37

Sheldrake v DPP [2004] UKHL 43

Woolmington v DPP [1935] UKHL 1

CASES – EUROPEAN COURT OF HUMAN RIGHTS

Al-Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1

Doorson v The Netherlands (1996) 22 EHRR 330

Luca v Italy (2003) 36 EHRR 46

Salabaiku v France (1988) 13 EHRR 379

Van Mechelen v The Netherlands (1997) 25 EHRR 647

STATUTES

Misuse of Drugs Act 1971

Criminal Justice Act 1988

Human Rights Act 1998

Terrorism Act 2000

Criminal Justice Act 2003

EUROPEAN MATERIALS

European Convention on Human Rights 1950


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