What is Balanced on the Scales of Justice? In Search of the Essence of the Right to a Fair Trial

Abstract

The very concept of trial fairness is deeply theoretical but highly practical. This article explores the recent predilection for balancing the defendant's right to a fair trial against expediency (juridical and political) in the administration of justice. It argues that balancing has no place in the concept of a fair trial because there is no antithesis between the interests in play. Instead, the right to a fair trial is a common good enjoyed by the defendant, the complainant, all other participants in the trial and the community at large. The article challenges the authenticity of the UK concept of balancing within Article 6 of the ECHR and deplores its infiltration into jurisprudence of the European Court of Human Rights through Al-Khawaja v UK (Grand Chamber 2012). It probes the 'essence of the right' principle underpinning the ECHR guarantees, and discusses how the ECtHR's 'sole or decisive' rule had acted as a bulwark of the protection of the essence of the right to challenge witnesses under Article 6(3)(d). It discusses the perplexing disappearance of the essence of the right concept in Al-Khawaja. It analyses the different approaches taken to quashing convictions under English, Scots and ECtHR law for breach of Article 6, and contends that, contrary to UK case law, where a trial has been found to be unfair as a whole, that necessarily means that the conviction must be quashed as not having been conducted in accordance with the rule of law, and a retrial ordered if feasible. Finally the article ventures a reconfiguration of the fair trial right under ECHR Article 6(1) and (3).

Keywords: criminal procedure, hearsay evidence, right to fair trial