Justifications for limits on fair trial rights

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.[188]

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’.[189]

10.155         Another general question that might be asked is: does this law increase the risk of a wrongful conviction?[190]

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.[191] 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.[192]

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’.[193] Dennis cites examples of proportionality reasoning in English courts in relation to the privilege against self-incrimination,[194] the presumption of innocence,[195] and legal professional privilege.[196]

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.