Strasbourg again favouring safety of conviction over cross-examination of witnesses?

“Previously I made comments on a similar decision earlier this year in Seton v. the United Kingdom, Application no. 55287/10, 31 March 2016 (see previous UKHRB coverage here) highlighting the dilution of the right contained within Article 6(3)(d). Instead of upholding the right to cross-examine witnesses, the Court’s current approach places an undue weight upon the existence of supporting incriminating evidence.

The impact of the emphasis placed on sufficient supporting evidence is again seen in this judgment. Fundamentally, it appears that the Court’s three-step test from Al-Khawaja and Tahery v. the United Kingdom [GC], Application nos. 26766/05 and 22228/06, 15 December 2011 has almost morphed into a single step test – was there other supporting evidence securing the conviction other than the evidence of the absent witness? The previous first step regarding the existence of good reasons for non-attendance is no longer decisive. Secondly, in assessing whether the evidence in questions was “sole or decisive”, the existence of other incriminating evidence clearly influences the Court’s conclusion. Finally, the Court drastically lowers the threshold for the sufficiency of counterbalancing factors in the event that the absent witness evidence is less important (which, again, is heavily influenced by the existence of additional incriminating evidence!).

It appears that the stronger the case against the applicant, the less likely it is that the right under Article 6(3)(d) will need to be respected.”

UK Human Rights Blog

Strasbourg_ECHR-300x297Simon Price v. the United Kingdom, Application no. 15602/07, 15 September 2016 – read judgment.

In a unanimous decision, the European Court of Human Rights has held that the proceedings that lead to the conviction of an individual for drug trafficking charges were entirely compliant with Article 6, ECHR. Despite the inability to cross-examine a key prosecution witness, the Court considered that in light of the existence of supporting incriminating evidence (amongst other factors) the proceedings as a whole were fair.

Background

In June 2004 a ship, entering the port of Rotterdam, was searched by customs officials and found to contain a quantity of cocaine worth £35 million. The applicant, Simon Price, was arrested after he made enquiries into the container shortly after. He was subsequently charged with an offence under s.20, Misuse of Drugs Act 1971, and with the attempted importation of drugs from Guyana…

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