ECHR Fairness with evidence

European Convention on Human Rights (ECHR)

Fairness with evidence

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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.

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“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

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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.

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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
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Non-disclosure to the defence may equally amount to a breach

- Foucher v. France 25 EHRR 234

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Forensic Conduct and Standards

Dealing with duty of all prosecution (including police and civilian staff) and defence examiners and experts.

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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

Recording Telephone Calls

Recording Telephone Calls

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A question that often gets asked is "Can I record a telephone call?" and the answer to that is that you can (according to publicly available material), but conditions apply dependent upon the circumstances under which the recording is taking place and whether you intend to disclose part or all of the recording to a third party. There is a huge amount of information about recording of telephone calls in the workplace, too much to deal with here, so I have highlighted some reference material of which to be aware:

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Recording Calls in the Workplace:

Telecommunications (Lawful Business Practice)(Interception of Communications) Regulations 2000 ("LBP Regulations")

http://www.ico.gov.uk/upload/documents/library/data_protection/practical_application/coi_html/english/supplementary_guidance/monitoring_at_work_3.html

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Statutory Instrument 1999 No. 2093

The Telecommunications (Data Protection and Privacy) Regulations 1999

http://www.opsi.gov.uk/si/si1999/19992093.htm

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Regulation of Investigatory Powers Act 2000

http://www.opsi.gov.uk/acts/acts2000/ukpga_20000023_en_1

Regulation of Investigatory Powers Act 2000

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Human Rights Act 1998

http://www.opsi.gov.uk/ACTS/acts1998/ukpga_19980042_en_1

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Data Protection Act 1998

http://www.opsi.gov.uk/Acts/Acts1998/ukpga_19980029_en_1

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Moreover, a further web document worth obtaining from the OFCOM archive holding OFTEL's web data is "47/99 19 August 1999 Recording telephone conversations on private networks". OFTEL produced this document in response to a request from the Home Office to publish new guidance to companies covering their responsibilities about recording phone calls in the workplace for business purposes. Document 47/99 of the 19 August 1999 was published after the Human Rights Act 1998 was introduced and the successful employment case relating to an employee's rights to privacy at work following the European Court of Human Rights (ECtHR) decision of June 1997 in the case of Halford vs UK.

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Recording Calls for Personal Use:

OFCOM's current general guidance on this matter is available from their website under 'Recording and monitoring telephone calls or e-mails'. A general overview of interception, recording and monitoring of communications.

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Specifically, the guidance poses answers to common questions about telephone calls. What is quite useful about the current OFCOM guidance is that it seems not to have changed from the original guidance OFTEL gave back on the 07/12/2000 in "Frequently Asked Question" that were published following the introduction of RIPA 2000.

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Q: Can I record telephone conversations on my home phone?

A: Yes. The relevant law, RIPA, does not prohibit individuals from recording their own communications provided that the recording is for their own use. Recording or monitoring are only prohibited where some of the contents of the communication - which can be a phone conversation or an e-mail - are made available to a third party, ie someone who was neither the caller or sender nor the intended recipient of the original communication. For further information see the Home Office website where RIPA is posted.

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Q: Do I have to let people know that I intend to record their telephone conversations with me?

A: No, provided you are not intending to make the contents of the communication available to a third party. If you are you will need the consent of the person you are recording.

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http://www.ofcom.org.uk/static/archive/oftel/consumer/advice/faqs/prvfaq3.htm

CDS Regulations SI 2001 No.1437 & ECHR Article 6

CDS Regulations SI 2001 No.1437 & ECHR Article 6

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Statutory Instrument 2001 No. 1437
The Criminal Defence Service (General) (No. 2) Regulations 2001
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PART VI - MISCELLANEOUS
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Authorisation of expenditure
19. - (1) Where it appears to the solicitor necessary for the proper conduct of proceedings in the Crown Court for costs to be incurred under the representation order by taking any of the following steps:
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(a) obtaining a written report or opinion of one or more experts;
(b) employing a person to provide a written report or opinion (otherwise than as an expert);
(c) obtaining any transcripts or recordings; or
(d) performing an act which is either unusual in its nature or involves unusually large expenditure
he may apply to the Costs Committee for prior authority to do so.
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(2) The Commission may authorise a person acting on behalf of the Costs Committee to grant prior authority in respect of any application made under paragraph (1).
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(3) Where the Costs Committee or a person acting on its behalf authorises the taking of any step specified in paragraph (1), it shall also authorise the maximum to be paid in respect of that step.
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ECHR Article 6 – Right to a fair trial
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1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
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2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
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3. Everyone charged with a criminal offence has the following minimum rights:
a. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; b. to have adequate time and facilities for the preparation of his defence; c. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; d. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; e. to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

CDS Regulations SI 2001 No.1437 & ECHR Article 6

CDS Regulations SI 2001 No.1437 & ECHR Article 6

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Statutory Instrument 2001 No. 1437
The Criminal Defence Service (General) (No. 2) Regulations 2001
.
PART VI - MISCELLANEOUS
.
Authorisation of expenditure
19. - (1) Where it appears to the solicitor necessary for the proper conduct of proceedings in the Crown Court for costs to be incurred under the representation order by taking any of the following steps:
.
(a) obtaining a written report or opinion of one or more experts;
(b) employing a person to provide a written report or opinion (otherwise than as an expert);
(c) obtaining any transcripts or recordings; or
(d) performing an act which is either unusual in its nature or involves unusually large expenditure
he may apply to the Costs Committee for prior authority to do so.
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(2) The Commission may authorise a person acting on behalf of the Costs Committee to grant prior authority in respect of any application made under paragraph (1).
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(3) Where the Costs Committee or a person acting on its behalf authorises the taking of any step specified in paragraph (1), it shall also authorise the maximum to be paid in respect of that step.
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ECHR Article 6 – Right to a fair trial
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1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
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2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
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3. Everyone charged with a criminal offence has the following minimum rights:
a. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; b. to have adequate time and facilities for the preparation of his defence; c. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; d. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; e. to have the free assistance of an interpreter if he cannot understand or speak the language used in court.