Can fair trial rights be balanced against other interests?

Kevin Kerrigan, Michael Stockdale

Research output: Contribution to journalArticlepeer-review

Abstract

The right to a fair trial and due process is found in all relevant human rights instruments. Its fundamental value has never been doubted but controversy often flows from the question of what fairness demands in a given situation and the relevance of interests that are extraneous to or in competition with those of the right holder. The House of Lords decision in R v Davis [2008] UKHL 36 regarding the fairness of anonymous witness testimony and the emergency legislative response brings into sharp focus the lack of consensus over the essential constituent elements of a fair trial. The statutory code for witness anonymisation is predicated on a requirement that the measures must be consistent with the provision of a fair trial while at the same time potentially permitting a conviction to be based decisively on anonymous testimony. The history and context of this legislation demonstrates the delicate balancing act that legislature, executive and judiciary must perform when attempting to protect the rights of the accused whilst neither emasculating the ability of the criminal justice system to bring serious offenders to justice nor exposing witnesses either to the risks of intimidation or to the potentially life changing consequences of witness protection schemes.
Original languageEnglish
JournalWeb Journal of Current Legal Issues
Volume2009
Issue number1
Publication statusPublished - 27 Feb 2009

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