Saturday, July 11, 2009

ECHR Fairness with evidence

European Convention on Human Rights (ECHR)
Fairness with evidence
As part of the training syllabus for students, consideration is given to the professional, ethical and moral standards associated with the work of the examiner and expert and the evidence they produce.
“Equality of arms” principle
Enshrined in Article 6 ECHR and incorporated into HumanRights Act - the right to a fair trial involves observance of the principle under which the defendant in criminal proceedings must have “a reasonable opportunity of presenting his case to the court under conditions which do not place him at a substantial disadvantage vis-à-vis his opponent”
- Kaufman v. Belgium 50 DR 98;
- Neumeister v. Austria 1 EHRR 91;
- Delcourt v. Belgium 1 EHRR 355;
- Borgers v. Belgium 15 EHRR 92;
- Jespers v. Belgium 27 DR 61;
- Bendenoun v.France
ECHR Article 6
The principle of equality of arms under Article 6(1) overlaps with specific guarantees in Article 6(3) which are not confined to specific aspects.
Equality is relevant for example where an expert witness appointed by the defence is not accorded equal treatment with one appointed by the prosecution or the court, may amount to a breach of the principle
-Bonisch v. Austria 9 EHRR 191
Non-disclosure to the defence may equally amount to a breach
- Foucher v. France 25 EHRR 234
Forensic Conduct and Standards
Dealing with duty of all prosecution (including police and civilian staff) and defence examiners and experts.
The court held “It was the clear duty of government forensic scientists to assist in a neutral and impartial way in criminal investigations. The cause of the injustice to Miss Ward on the scientific side of the case stemmed from the fact that three senior forensic scientists…regarded their task as being to help police. They became partisan. It was their clear duty to act in the cause of justice. That duty should be spelt out to all engaged…in the forensic services in the clearest terms.”
- R v. Judith Ward (1992) CA 142 NLJ 859

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