Common Law Evidence and the Common Law of Human Rights: Towards a Harmonic Convergence?

This Article considers the impact which European Human Rights Law has made upon the common law rules of evidence with reference to the approach the European Court of Human Rights (ECtHR) has adopted towards exclusionary rules of evidence. Particular attention will be given to rules that have been developed by the ECtHR in relation to the right to counsel during police questioning (the so-called “Salduz” doctrine) and the right to examine witnesses (the so-called “sole or decisive” evidence rule). The Article argues that the effect of these rules has encouraged common law judges to engage more holistically with the effect of certain kinds of evidence on both the weight of the evidence as a whole and on the fairness of the proceedings as a whole. The result has been to encourage a shift in the nature of both their epistemic and non-epistemic reasoning during the trial.

In its most recent decisions, however, the Court appears to have drawn back from its more activist stance of setting standards of fair participation in evidentiary matters. Instead, the Court has become more fixated on the traditional common law concern with reliability. This has somewhat pushed back the potential that the ECtHR has to shift the common law toward reaching a more harmonic convergence between achieving truth and fairness in criminal proceedings.