ECBA Conference 1998, Strasbourg, France

The second Conference of the ECBA

25 - 26 June 1998

Theme: "The Individual and the State"


II. The second Conference of the ECBA was held at the Human Rights Building, Strasbourg, on 25/26 June 1998, under chairmanship of Rock Tansey QC


Barristers, Solicitors and lawyers from England, Scotland, Northern Ireland, The Netherlands, Germany, Italy, Latvia, Luxembourg, Austria and Iceland attended.


The theme of the conference was "the Individual and the State" and the thrust of the shared concerns of the delegates on human rights issues was the perception that in recent years the majority of Governments had been introducing measures which any right thinking person should appreciate would tend to erode human rights. This was happening:
(1) to save money;
(2) to enable populist politicians, encouraged by the media, to be seen to be "tough on crime", ill-considered and draconian measures being introduced for political advantage, not only in the field of terrorism, drug trafficking and serious violence, but also creeping into less serious crimes leading to the demonisation of the defendant and the unpopularity of the lawyers who has the gall to defend him.

The "lynch mob" ignores the presumption of innocence. The state should not. The new "victim" culture ignores the fact that the wrongly accused is also a victim. The state should not.
It should recognise the need for fair investigation, disclosure, trial and disposal, including imprisonment which is not inhuman or degrading.
European lawyers who admire our Legal Aid system received with surprise the confident prediction of Christopher Murray (Kingsley Napley) representing the London Criminal Solicitors Association, that a Public Defender system and block contracts were imminent in our country.

They warned that from their experience this only served to devalue justice and lead to third rate representation. Professor Alan Miller (Glasgow) expressed dismay that a pilot Public Defender Scheme was being introduced in Edinburgh. He, Professor Franz Salditt (Germany) and Professor Paolo Iorio (Italy) spoke on the Ethics and Independence of Counsel. It was clear that, whether within an inquisitorial or accusatorial system, all strived for independence and trust within their lawyer/client relationship, resisting attempts by the state to set the Codes of Conduct. Independence of lawyers can easily be subverted by Governments with promises of or hopes for advancement.

Dean Spielmann (Luxembourg) and Dr Jan Sjocrona (Netherlands) spoke on Mutual Assistance in Criminal Matters and the Right to a Fair Trial, dealing with the international effect of illegally obtained evidence, with contributions from Colin and Clive Nicholls QCs on extradition based on such evidence.

Tamara Trottman (Netherlands) and Steven Kay QC spoke on the trial and sentencing of Young Persons who have committed serious offences, eg.: murder, rape.
The concerns were not so much the age of criminal responsibility, which varied widely between countries, as that states should not claim that a child, who cannot understand or concentrate or is frightened, is having a fair trial simply because his lawyer does understand. The recent trial of 10 year olds for rape, unnecessarily held at the Old Bailey, exemplified the desire of the state to be seen to be "tough on crime".

On the second day Christopher Murray addressed us on Money Laundering, Confiscation and Human Rights, highlighting the recent alarming legislation which makes it a criminal offence for a lawyer in certain circumstances not to disclose to the police matters otherwise privileged, so breaching the client's "fundamental rights" (R -v- Derby Magistrates' Court ex p. B (1995) 4 AER 526). A lawyer now runs the risk of prosecution if he does not disclose and being sued if he does!

David Corker (Peters and Peters) followed on our draconian Drug Trafficking confiscation provisions, whereby a man can be deemed to benefit where there is no benefit and capable of realising property which cannot be realised.

Gerard de Jonge (Netherlands) spoke on Human Rights and Treatment of Prisoners, a subject sometimes forgotten by lawyers.

Finally, Dr Michael Rosenthal (Germany) spoke on Anti-Terrorist Procedures and Human Rights, followed by a forceful address by Arthur Harvey QC (Northern Ireland), in which he said that the real test of a country's commitment to human rights is how it deals with crimes as serious as terrorism.

He and his colleague, Barra McGrory, spoke of the Diplock Courts which extend far wider than is popularly believed, with no juries, doubtful confessions admitted and doubtful interrogation techniques accepted.
He said that there had been recent improvements as a result of the presence of international observers in the Appeal Courts, and stressed that one of the reasons why bodies such as the ECBA are so important is so that human rights supporters can keep an eye on "Big Brother".