ECBA Conference 1997, Strasbourg, France

First ECBA-conference

May 1997

I. The first Conference of the ECBA took place at the European Commission of Human Rights, Strasbourg, in May 1997

1.
C. Kruger gave the delegates an introductory talk on the work of the Commission, where one third of the cases that go before the Commission are criminal. In the present circumstances, where the methods of fighting crime can sometimes go too far, it was vital to have a body of defence lawyers, free from State interference, with free Legal Aid and suitable facilities, who can build up the case law for the rights of the defence, and conduct cases in an atmosphere where "equality of arms" had a real meaning.

2.
N. Cowdery set out the rules relating to both prosecution and defence disclosure as they have recently been developed. In relation to prosecution disclosure he stressed the need for proper and contemporaneous records to be maintained during a police investigation, but he listed a formidable number of ways in which disclosure was denied to the defence:  

1. it would be injurious to the public interest;
2. it would prejudice State security;
3. there was an informant whose identity needed to be protected;
4. it would reveal the internal workings of the police;
5. there were unusual methods used to detect the crime which should not be revealed;
6. investigations are still continuing into other defendants;
7. privilege;
8. the information was supplied on a confidential basis;
9. it was private or delicate material;
10. the disclosure might lead to other crimes being facilitated, or lead to violence or dishonesty.

He deplored the suggestion that disclosure might be made to a defence lawyer on condition the information was not disclosed to the client as being wrong in principle. In relation to defence disclosure he raised the point as to whether the limitations available to prosecution disclosure and the increasing degree of defence disclosure required (with penalties for non-disclosure) altered the balance of fairness in a criminal trial against the defence (as set out in ECHR Article 6(3)(a)). The reasons for the development of defence disclosure were: to meet practical situations (eg. an alibi defence, or expert evidence), governments trying to cut costs, victims' groups trying to reduce trauma for witnesses, the police believing the defence have an unfair advantage, and the political issues linked with the public perception of law and order.

He raised some controversial questions:  

1. Should there be reciprocal disclosure by the defence in return for "full" disclosure from the prosecution?
2. Could a defendant seek to reduce his sentence by helping with disclosure which proved his guilt and which saved time and costs?
3. Should investigators be obliged to follow up defence disclosure on the basis that the material might be helpful to the defence?

3.
Mrs Taru Spronken described pre-trial disclosure as it applies in the Netherlands, which is a non-adversarial system. She described a number of dangers to the fairness of pre-trial disclosure:

1. that the Minister for Justice can give directions to investigators and prosecutors. This undermines the "independence" of the prosecution;
2. with the increase of "pro-active" police methods and the targeting of criminals, the police and the prosecutors were becoming involved in the offences themselves;
3. again, with the "pro-active" policing, and an increasing amount of material being kept secret from the Courts, how could the prosecution remain independent?
4. with the increasing use of informants, anonymous witnesses, and of unknown observation posts, it was becoming impossible to advise a client properly, and to obtain adequate instructions from him.

4.
Anonymity of Witnesses

The recent case of Doorson -v- Netherlands 22 EHRR 330 (26.03.96) decided that the use of the evidence of anonymous witnesses did not lead to breaches of Articles 6(1) and 6(3). The present state of the law was discussed and the general consensus of all the delegates was that the same problems exist as before, and that the Doorman case simply left the issue wide open, with no effective remedy.

5.
Rock Tansey QC gave a detailed insight into the law in the UK and in Europe so far as telephone tapping and bugging were concerned. In the UK, although there was judicial control over the police in relation to the entry into premises to take material or to install "bugs", there was no such control over the interception of communications which could be achieved in defined cases by Executive Authorisation.

The UK tended, so far as its courts were concerned in applying the ECHR (Articles 6 and 8), to draw a distinction between the way the evidence was obtained and the use that could be made of it in a criminal trial. In Europe it was the gathering of the evidence that was all important so far as the application of the ECHR was concerned.

The weaknesses of the European approach were:

1. that Article 8 does not seem to have deterred the German authorities from being "the champions" in Europe (as Mr Tansey described them) for totalling 6,000 cases a year for telephone tapping. The only good point was that the results of telephone tapping cannot be used in a German court;
2. there was an increasing incidence of defence lawyers being targeted. It was generally agreed by the delegates that far more intrusive surveillance is being undertaken in Europe than those present ever found out from the police or prosecutors' files.

6.
Arthur Harvey QC (Northern Ireland) investigated in detail the recent case law and the procedural changes in the exercise of the "right to silence". His conclusion was that in Europe infringements on the right of a defendant to remain silent did not lead to the proceedings being considered unfair as a whole. In the UK (and Northern Ireland) the law concerning "adverse inferences" was allowing cases to go through to a verdict that would previously have been stopped for inadequate evidence.

This use of "adverse inferences" was:

1. incompatible with European law;
2. undermining the fairness and integrity of a criminal trial;
3. allowing judges to determine what the proper inferences were that the jury could consider. In Mr Harvey's experience he had never heard a judge direct a jury in the following terms: "As a matter of law, you cannot draw this inference";
4. a form of threat or compulsion by prosecuting authorities on the defendant

In relation to the "right of no self-incrimination", the cases of Funke, Saunders, Murray and others were reviewed. With some exceptions, Mr Harvey concluded that this right to prevent testimony being used that had been improperly compelled from a person, and which had been "read into" Article 6 of the ECHR, was being eroded.

7.
Another development discussed at this Conference which was likely to increase the use of illegally obtained evidence was the establishment of a European police force "Europol". Organised crime has led to methods being used which the courts and the defence knew nothing about. There seemed to be no democratic or judicial control over Europol, and indeed the Netherlands proposed to grant members of Europol immunity.

Entrapment remains no defence to a criminal charge in the UK. In Europe the view seems to have been taken that the stronger the criminal structure is, the more steps had to be taken by the police to deal with it. The delegates considered that there was no point under European law in having a right in relation to entrapment if the police can benefit from its breach. A tougher stand by the courts should b e taken against police breaches so that defence rights can survive and prosper.

8.
The Scottish experiment of televising court proceedings had not led to pressure to extend the current use of cameras in court. In any event only minimalist coverage had been allowed, mainly for education or documentary purposes, and not during any trial proceedings and not for news purposes or coverage.