Balancing Convention Rights: P.G. and J.H. v United Kingdom
| Published date | 01 March 2002 |
| Date | 01 March 2002 |
| Author | Susan Nash |
| DOI | 10.1177/136571270200600203 |
| Subject Matter | Case Note |
CASE
NOTE
Balancing Convention rights:
P.G.
and
J.H.
v
United Kingdom
By
Susan Nash
School
of
Law,
University
of
Westminster
he decision of the European Court of Human Rights in
PG.
and1.H.
v
United
Kingdom'
confirms that evidence obtained in violation of a right
guaranteed by the European Convention on Human Rights can be adduced
at trial without necessarily infringing the right to a fair trial. In this case, the
majority of the European Court of Human Rights was satisfied that the use of
intercept evidence did not deprive the accused of a fair hearing notwithstanding
that it had been obtained in breach of national law and in violation of privacy
rights protected by Article
8
of the Convention. Providing the Court is satisfied
that defence rights have been respected, the use of this type of evidence is not
contrary to the requirements of Article
6.
While the Court has accepted that the
guarantees contained in Articles
5
and
8
of the Convention place constraints on
the exercise of police powers to control and prevent crime,2 this case confirms
that, when considering questions of admissibility, the trial judge must simply
apply the criterion of fairness in Article
6.
Applying principles established in the
cases of
Schenk
v
Switzerland3
and
Khan
v
United Kingd~rn,~
the Court held that its
task under the Convention is not to give a ruling on whether evidence is properly
admitted but to determine whether the proceedings as a whole, including the
way in which the evidence was gathered, were fair. Arguably, sanctioning the use
of
evidence obtained in breach of a right protected by the Convention serves to
frustrate the aims of the Convention and reduces its effectiveness. Furthermore,
in refusing to censure the gathering of evidence in this manner, the Court is
1
Application
No.
44787/98. 25
September
2001.
3 (1988) 13
EHRR
242.
4 (2000) 31
EHRR
45.
r
2
Oman
v
United
Kingdom
(2000) 29
EHRR
245.
THE INTERNATIONAL JOURNAL
OF
EVIDENCE
&
PROOF
125
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