Hoffman on the European Court
Lord Hoffman has criticised the decisions and processes of the Strasbourg Court. Where I am positive about the Strasbourg Court is that it is independent of the cosy consensus that exists in the legal establishment in the UK.
Someone who expresses the views that I express in public would be unable to make a living as a barrister in England simply because the judges would take against him (or her). This has been confirmed to me by barristers who support (some of) those things I say, but are unwilling to say them in public.
Lord Hoffman's detailed speech I hope to upload onto the JFF website as the only available copy is in Word which is not that good.
I would like to look at the three issues that he raises. These are the Sanders Case and self-incrimination. A case involving Hearsay and a third case about flights in Heathrow and Judicial Review.
Dealing with them in reverse order. Judicial review is a very difficult procedure to succeed with in England and involves major risks being taken by anyone with average wealth. From that perspective, therefore, it is not an "adequate remedy". I, therefore, agree with the European Court when "the Court nevertheless held by 16 votes to 1 (that being Sir Brian Kerr, the UK ad hoc judge) that judicial review had been an inadequate remedy."
It is not surprising that the UK judge felt that it was OK and it shows the strength of an external perspective. The concept of adequate remedies is an important concept otherwise people are powerless against the state.
The second one was where hearsay evidence was admitted in a criminal trial. I am concerned about the deontological versus consequentialist approach that has driven legal culture in recent years. On one side we have the treatment by the state of a defendant and the use of unreliable evidence. On the other side we have the consequence of someone guilty going unpunished. He cites a case where hearsay evidence was admitted. There is actually a good argument for a retrial in this situation - a retrial in which the hearsay evidence is not allowed. I do think we really need to take a look at the extent to which justice in England and Wales has been polluted by both unreliable expert opinion (something the law commission have noticed recently) and hearsay evidence.
The third case was the Sanders case. Someone has turned up to my advice bureau now so I will hope to comment on this later.