Policy fairness and trial fairness

There are times when the concept of a fair trial calls for explanation. Different notions of what a fair trial is lie behind the 6-1 split in the Chamber Court in Gafgen v Germany [2008] EctHR 565 (30 June 2008).

Evidence had been obtained after the police had subjected the accused to threats which amounted to inhumane treatment, in breach of Art 3 of the ECHR. Part of this evidence comprised his confessional statements made as a result of the threats, before trial, and these statements were ruled inadmissible. This appeal concerned the admissibility of real evidence obtained after the confession, when the accused showed the police where he had concealed the body of the child he had killed. This consisted of the finding of the dead child and the results of a subsequent autopsy, and the accused’s vehicle’s tyre marks in the ground near the body.

The majority noted that the Regional Court in Germany had determined the admissibility of this real evidence, applying a balancing exercise and ruling it admissible, and the European Court’s role was to consider the overall fairness (105). This was not a case where the police had used actual force on the accused so the trial was not one which would be automatically unfair.

That is the point at which one Judge dissented: he held that unfairness should follow automatically upon a finding of a breach of Art 3, which is absolute in its terms. There is no room, he said, for permitting some inhumane treatment just because the suspect poses a serious risk to the safety of the community. The breach of Art 3 was a breach of the accused’s right to silence and it thereby affected the fairness of the trial.

The majority’s view of the meaning of the fairness of a trial can be seen from its analysis of the position here (106-109). The accused, represented at trial, had made new and complete confessions. These proved he had planned the offences (kidnapping, demanding a ransom, and murder) and the statements were corroborated by a witness and by a note found at the accused’s flat. The police had observed the accused collect the ransom. The only use made by the trial court of the items of impugned evidence was to confirm the trial confessions. The impugned evidence was therefore, said the majority, of an “accessory” nature only, in the sense that it’s use was restricted to assessing the veracity of his trial statements. The two statements he made at trial, one at the beginning and one at the end, were in different terms, reflecting a defence strategy, and were not, said the majority, made as a result of his loss of rights as a result of breach of Art 3. The Regional Court had given a reasoned decision for its rejection of his submission that the evidence in question here was inadmissible, and so the accused’s trial rights were also observed in that regard.

From this perspective, the minority Judge was incorrect to the extent he implied that the only reason the accused was on trial was because he had been subjected to a breach of his Art 3 rights.

On what basis could the proceedings against Mr Gafgen have properly been said to be unfair? There are two relevant ways in which fairness is used in this context: public policy fairness and procedural fairness. Public policy fairness involves the balancing of an impropriety against other relevant values in order to determine whether challenged evidence should be excluded, or, where the impropriety is at the serious extreme, whether the proceedings should be stayed. The Regional Court in this case carried out this balancing exercise and ruled the evidence admissible. The Strasbourg Court did not interfere with that assessment, and it suggested that only where there is physically inhumane treatment should the proceedings be stayed. The dissenting Judge, in effect, would have held that any inhumane treatment, including threats, should be sufficient to require a stay of the proceedings.

The second way in which fairness is used is in the concept of a procedurally fair trial. This means a trial in which the law is accurately applied to facts that are determined impartially. The majority held that, given the correctness of the balancing decision to admit the evidence, there was no resulting impartiality. The trial Court did not give improper weight to other evidence as a result of the admission of the challenged evidence. Neither, as “accessory” evidence, was the challenged evidence given weight that it did not merit. On the other hand, the dissenting Judge, in effect, considered that the breach of Art 3 resulted in a breach of the accused’s right to silence, and impartiality arose from the prosecution having the advantage of more evidence than it would have gathered without the breach of Art 3.

The position would have been clearer if the ECtHR had been willing to examine the correctness of the Regional Court’s carrying out of the balancing exercise, although there are reasons of jurisdiction for it not having done so. If the Court had examined the balancing exercise, it probably would not have accepted that all breaches of Art 3 carry the same weight. Some forms of inhumanity are indeed more serious than others. Not all such improprieties require exclusion of evidence in serious cases. The dissenting Judge was wrong on the public policy aspect of the case. He treated policy matters that were the domain of the national court as if they were relevant to procedural fairness. He was also wrong to hold that the breach of the accused’s right to silence (assuming that there was such a breach) led to impartiality through the prosecution having more evidence than it should have had: the quantity of evidence is an admissibility issue to be determined by the public policy balancing exercise; an analogy may be made with evidence obtained through improperly conducted searches. The minority Judge’s concerns are subsumed in the balancing exercise.

Of course views on the correctness of Gafgen v Germany may differ. It is worth looking at the case to see how strikingly similar the balancing exercise is in German law to that in the jurisdictions that follow the English tradition. The similarity is enough to make you pick up your copy of George Fletcher’s “Rethinking Criminal Law” (1978) – happy 30th! – but as his American English is rather unclear I don’t get far with it, again. But don’t let my difficulties put you off; I am, apparently, the only person who thinks HLA Hart’s English English is tediously obscure.

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