The states composing the Council of Europe, now 47 of them, have their own supreme court, the European Court of Human Rights, which – not unlike its US counterpart – has come under increasing fire for interfering unduly in member states’ affairs and trying to make one size of human rights compliance fit all. At a theoretical level there seems something wrong with this critique: one size should fit all, for the meaning and effect of fundamental rights cannot logically vary from one country to another. But at a practical level it addresses a real problem: decisions about legal processes framed at a level of generality large enough to embrace all member states may well be unworkable in some of them.
The first of these difficulties has historically been tackled by the use of the margin of appreciation, a literal rendering, meaningless in English, of the French marge d’appréciation, which means margin of judgment. It has proved handy in obscenity and blasphemy cases, allowing the court not to interfere with intolerant decisions made by national courts (the UK’s included) on the grounds that the latter have a better sense of local conditions and feelings – the very thing that intolerance thrives on and that the European Convention on Human Rights is there to guard against.
The margin of appreciation has furnished an occasional bolthole, but it’s hard to call it a legal principle. It is in any case not an expedient which by itself can resolve the second difficulty, the step down from the general to the particular. The reason for this is well illustrated by what has recently happened in relation to the use of hearsay evidence in criminal trials. In contrast to the unequivocal requirement of the US constitution that the accused must be able to confront the witnesses against him or her, the European Convention guarantees a more protean but less specific right to a fair trial. In an attempt to reconcile the confrontation principle with the need to protect frightened witnesses or to introduce the testimony of now dead ones, the European court has in the past held that the use of written statements will render a trial unfair if, but only if, their evidence is ‘decisive’ or ‘potentially decisive’.
The logic of this is arguably self-defeating. If a piece of evidence is not capable of contributing to the decision (and therefore of being potentially decisive), it ought not to be admitted at all. In any event, where the trial is by jury and the verdict consists of one word, it is often impossible to know what evidence was decisive. There is also a problem of principle: fairness embraces more interests than those of the accused. A trial needs to be fair to victims, to witnesses and to the public. To accept this, however, is to exchange any unitary notion of a fair trial for the least unfair way of adjusting competing claims to fairness. It may be unrealistic to inject into such a complex process a formulaic solvent like ‘decisiveness’.
Recognising the dilemma, English criminal procedure has in recent years become readier, subject to safeguards, to admit hearsay evidence. Parliament made statutory provision for it in 2003, but insisted – conformably with the human rights convention – that it was not to happen at the expense of fairness. When, in 2009, the UK Supreme Court was faced in the Horncastle case with convictions based on what was probably decisive hearsay evidence, it declined to follow the Strasbourg jurisprudence, concluded that the trials had been fair notwithstanding the admission of hearsay, and upheld the convictions. In the pair of cases decided by the Supreme Court in Horncastle, two of the defendants had been charged with intentionally inflicting grievous bodily harm on a victim who had died (from alcoholism) by the time the trial took place, and the victim’s statement, which was read at trial, was almost certainly decisive in securing convictions. The other defendants were charged with kidnapping a young woman, who was so frightened of giving evidence that she ran away. The Supreme Court’s cogently reasoned judgment came at a time when political pressure was building to reduce the European court’s interventions in the UK’s legal system.
How then was Strasbourg going to react to something close to defiance of its rulings by a national judiciary? A showdown seemed imminent because at the time of the Supreme Court’s decision two other cases, in each of which a chamber of the human rights court had found the UK to have denied a fair trial by admitting hearsay evidence, were waiting to be heard in the Grand Chamber. These cases raised the same issue in very different situations. One concerned a doctor charged with indecently assaulting two patients, one of whom killed herself before the trial took place. Her statement was read to the jury. In the other, the victim had been stabbed in the back. The accused had been identified as his assailant by a witness who absented himself from the trial, pleading fear. His statement too was read to the jury. Both men were convicted.
It was while the Strasbourg court was waiting to decide how to respond to the Supreme Court’s challenge to its approach that the president of the court, the UK’s judge, Sir Nicolas Bratza, delivered a measured paper defending the court’s record but arguing for a fuller and more constructive dialogue between the supranational court and national ones on issues such as this. The two Grand Chamber decisions, when they came out in December 2011, exemplified his approach. The court stood up for its own jurisprudence on fair trials and unseen witnesses, but accepted that the test of decisiveness could not be universally used. It held that, in the specific circumstances of each case and notwithstanding the admission in both of potentially decisive hearsay evidence, the trial of the doctor for indecent assault had been a fair one but the unlawful wounding trial had not.
These two Grand Chamber judgments were delivered the day after Lord Irvine, who as Lord Chancellor had been one of the main architects of the Human Rights Act, delivered a fiercely critical lecture on the way British courts have interpreted the Act’s requirement that they ‘take into account’ what the Strasbourg court has decided. He denounced what he saw as slavish adherence in some cases and commended the Supreme Court’s independent stance in the Horncastle case, going so far as to say that the obligation placed by Parliament on the courts was to depart from Strasbourg’s rulings where our courts considered them mistaken.
Irvine’s critique will have played well with the lobby which, for reasons that in some cases have little to do with the promotion of human rights, was aiming to use the Council of Europe’s High Level Conference on the future of the Strasbourg court, held in Brighton in April, to bring the court to heel. But the insularity of his argument constrains its logic. If it is acceptable for the UK to dismiss a Strasbourg judgment as insufficiently sensitive to the UK’s legal culture, why is it not acceptable for, say, Russia or Moldova on the same ground to dismiss a judgment condemning some of the unsavoury practices of their criminal justice systems? The adjustment that was called for was not of the kind Irvine was advocating but of the kind Bratza was adumbrating; and it was the latter which was endorsed by the Brighton Declaration: ‘The conference … welcomes the development by the court in its case law of principles such as subsidiarity and the margin of appreciation.’
I started by suggesting that the margin of appreciation hardly qualifies as a legal principle; but the same is not true of subsidiarity. Subsidiarity is – or should be – a principled approach which recognises that the primary obligation for compliance with the convention rests on the member state, and that the way the state goes about complying may legitimately vary from one legal system to the next. This is not the same thing as holding, as Strasbourg has done in the past, that the suppression of free speech can be justified by calibrating free expression to local prejudice.
Then, importantly, some eight weeks after its twin judgments on the fairness of the UK trials, the Strasbourg court handed down two more judgments which, perhaps because they related to Germany, passed almost unnoticed in the British press. In both cases, the media had been allowed to intervene in the argument through representative organisations.
The first concerned the personal privacy of Princess Caroline of Monaco, whose marriage to a German aristocrat has provoked years of unsought publicity, frequently involving personal harassment, in the German press. In 2004 she won a landmark case against Germany for failing to protect her privacy through its courts. The decision provoked outrage in the German press (‘Europas Richter hebeln die Pressefreiheit aus’ – ‘European judges throw out press freedom’ – the Frankfurter Allgemeine said, replicating the British view that Europe is always somewhere else); but German politicians rapidly realised that it was an unsolicited donation to their own personal privacy rights and assured the Council of Ministers that the ruling was being respected.
Princess Caroline then brought fresh proceedings for further invasions of her privacy. Since these had taken the form of unctuous Hello!-style coverage of her family’s affairs, the refusal of the German courts to give redress against them might simply have been endorsed by Strasbourg. But the Grand Chamber took a more radical course: it held that Germany had adjusted its jurisprudence to accord proper respect to private life, so that strong reasons – which were not present here – were now needed if the European court was to upset a national court’s judgment about it. Still more interestingly, the Grand Chamber on the same day handed down a judgment in favour of the Axel Springer press empire, which had been forbidden by injunction to report the arrest on a minor drugs charge of an actor known for his role as a TV police inspector. The case, which was decided under Article 10 (the freedom of expression provision), set out a checklist of relevant factors and concluded that, despite the contrary view of the national courts, they did not here add up to a proportionate interference with free expression. One listened for the sound of trumpets in the British media, but there was none. So it goes.