Overview: Human Rights

Abstract

The Supreme Court decided 17 cases related to human rights in the 2011-12 legal year. Five of those cases related to Article 6 of the European Convention on Human Rights (ECHR)1 which protects the right to a fair trial. In Gale and another v Serious Organised Crime Agency,2 the appellant's case was that the judge applied the principle of `balance of probabilities' instead of `beyond reasonable doubt' to impute criminal conduct on the appellants and hence, infringed Article 6 of the ECHR. The Supreme Court dismissed the appeal on the ground that confiscation of property could be based on evidence which satisfied the civil standard of proof.3 The Supreme Court further held that the starting point in this case was that the appellants failed to provide a legitimate explanation for possession of such contested property.4 In Ambrose v Harris; HM Advocate v G; HM Advocate v M,5 the Supreme Court observed that the correct starting point when one is considering whether the person's rights under the ECHR have been breached is to identify the moment fromwhich he was charged for the purposes of Article 6(1) of the ECHR.6 The test is whether the situation of the individual was substantially affected. His position would have been substantially affected as soon as the suspicion against him was being seriously investigated and the prosecution case compiled.7 In HM Advocate v P,8 the issue before the Supreme Court was whether the prosecution could rely on evidence obtained from information disclosed during the course of a police interview with an accused person, without the accused person having had access to legal advice. The Supreme Court held that the question of whether such evidence should be admitted has to be answered by