Calibrating the right to confrontation

AuthorLiz Heffernan
DOI10.1177/1365712716631761
Published date01 April 2016
Date01 April 2016
Subject MatterArticles
Article
Calibrating the right to
confrontation
Liz Heffernan
Trinity College Dublin, Ireland
Abstract
In ‘Confronting Confrontation’, published in 2012, Professor Mike Redmayne elucidated a
critique of the relatively strong confrontation rights embedded in the US constitutional and
ECHR traditions. He argued in favour of an alternative, more narrow conceptualisation of
confrontation as the positive right of an accused to cross-examine available witnesses. Drawing
on some of the threads stitched in ‘Confronting Confrontation’, the present article explores
the challenge of applying the ECHR confrontation right in common law courts. Particular
emphasis is placed on the need within the Strasbourg doctrine to assess the potential sig-
nificance of the evidence to the prosecution’s case at trial.
Keywords
confrontation, criminal trial, ECHR, evidence, hearsay
Introduction
Professor Mike Redmayne’s exceptional contribution to scholarship on the law of evidence is personi-
fied in his acclaimed writing in areas such as expert evidence and character evidence. Less widely
acknowledged, although by no means less perspicacious, are his reflections on hearsay and confronta-
tion. The present discussion draws inspiration from Redmayne’s discourse on ‘Confronting Confronta-
tion’ which was published in 2012 in an intriguing collection titled Criminal Evidence and Human
Rights: Reimagining Common Law Procedural Traditions and edited by Professors Paul Roberts and Jill
Hunter (Redmayne, 2012b). In ‘Confronting Confrontation’, Redmayne elucidated a critique of the
relatively strong confrontation rights embedded in the US constitutional and ECHR traditions. He argued
in favour of an alternative, more narrow conceptualisation of confrontation as the right of a criminal
accused to cross-examine available witnesses.
1
Drawing on some of the threads stitched in ‘Confronting
Confrontation’, the present article explores the challenge of applying the Strasbourg doctrine in common
law courts, with focus in particular on the emphasis within the confrontation doctrine on the need to
Corresponding author:
Liz Heffernan, Law School, Trinity College Dublin, 39 New Square, Trinity College, Dublin 2, Ireland.
E-mail: liz.heffernan@tcd.ie
1. The discussion in ‘Confronting Confrontation’ drew on some of Redmayne’s earlier work including Redmayne (2006, 2009).
The International Journalof
Evidence & Proof
2016, Vol. 20(2) 103–111
ªThe Author(s) 2016
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DOI: 10.1177/1365712716631761
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