10.153 Although it will never be justified to hold an unfair trial, particularly an unfair criminal trial, as this chapter has shown, many of the general principles that characterise a fair trial are not absolute.
10.154 Given the importance of practical justice, discussed above, one general question that might be asked of a law that appears to limit a fair trial right is: does this law limit the ability of a court to prevent an abuse of its processes and ensure a fair trial? Professor Gans submitted that ‘a key criterion for determining whether a Commonwealth law limits the right to a fair trial is whether or not a court’s power to prevent an abuse of process is effective’.
10.155 Another general question that might be asked is: does this law increase the risk of a wrongful conviction?
10.156 The structured proportionality principle discussed in Chapter 1 may also be a useful tool. The Human Rights Committee has suggested that proportionality reasoning can be used to evaluate limits of fair trial rights. Proportionality is also used in the fair trial context in international law.
10.157 In Brown v Stott, Lord Binghamsaid that limited qualification of the rights comprised within art 6 is acceptable, ‘if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for’. He went on to say that the European Court of Human Rights has:
recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, the search for which balance has been described as inherent in the whole of the Convention.
10.158 This reflects a proportionality analysis. Professor Ian Dennis writes that the European Court has not deployed the concept of proportionality with any consistency in the context of fair trial rights, but ‘the English courts have been more consistent in using proportionality to evaluate restrictions of art 6 rights, although the practice has not been uniform’. Dennis cites examples of proportionality reasoning in English courts in relation to the privilege against self-incrimination, the presumption of innocence, and legal professional privilege.
10.159 Proportionality reasoning is referred to in discussions of these features of a fair trial earlier in this chapter and in other chapters of this report. It is a useful method of testing whether laws that limit fair trial rights are justified.
This is evidently the position in Europe: ‘The jurisprudence of the European Court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly, within article 6 are not themselves absolute’: Brown v Stott (2003) 1 AC 681, 704 (Lord Bingham). Professor Ian Dennis has said that all the individual fair trial rights in art 6 of the European Convention ‘are negotiable to some extent’. Although the right to a fair trial is a ‘strong right’, ‘it is clear that the specific and express implied rights in art 6, which constitute guarantees of particular features of fair trial, can be subject to exceptions and qualifications’: Ian Dennis, ‘The Human Rights Act and the Law of Criminal Evidence: Ten Years On’ (2011) 33 Sydney Law Review 333, 345.
J Gans, Submission 2.
‘Like most rights, many of the criminal process rights may be limited if it is reasonable and proportionate to do so’: Parliamentary Joint Committee on Human Rights, ‘Guide to Human Rights’ (March 2014) 26 <http://www.aph.gov.au/joint_humanrights/>. As noted in Ch 1, many stakeholders in their submissions said that the proportionality principle should be used to test laws that limit important rights, although few discussed it specifically in the context of fair trial rights.
Brown v Stott (2003) 1 AC 681, 704 (Lord Bingham).
Dennis, above n 189, 346.
Brown v Stott (2003) 1 AC 681; R v S and A  1 All ER 716; R v K  2 WLR 905. See also Ch 12.
R v Lambert  2 AC 545; Sheldrake v DPP  1 AC 264.
In Re McE  2 Cr App R 1. See Ch 13 and Dennis, above n 189, 346.