Krebs, Johannes
Description
In the recent fight against terrorism Western liberal democracies
have significantly expanded pre-emptive measures, such as
inchoate and preparatory offences or control orders. As these
measures rely increasingly on the use of sensitive information,
their application poses a dilemma. On the one hand, sensitive
information may be necessary as evidence in an open court to
justify the coercive measure or demonstrate the innocence of the
suspect. On the other...[Show more] hand, states are reluctant to disclose such
information where there is a risk to national security,
preferring either to supress the information or to use it in
secret. Such practices, however, may seriously violate the
principle of fairness - and its attached individual right to a
fair trial - a principle sitting not only at the core of the
criminal justice system, but also forming part of the rule of law
and democracy itself. The thesis poses the questions of what
limitations are acceptable to the right to a fair trial, and what
safeguards are necessary when states allow the suppression or use
of sensitive information in criminal and related proceedings.
The thesis is therefore concerned with finding an appropriate
judicial methodology for addressing the dilemma in court. It
argues that without a proper process (often generally described
as balancing), minimum standards of fairness are more likely to
be lowered due to security pressures. Principles, however, which
emphasise the right to a fair trial and require justifications
for any limitation in the interest of national security are
capable of retaining higher standards. Hence the thesis suggests
that while what is fair must be decided in the particular
circumstances, what needs to be taken into consideration in order
to achieve fairness can be defined.
By comparing the case law from Australia and the United Kingdom,
the thesis then offers an in-depths analyses of various degrees
of balancing and principles when dealing with sensitive
information, as well as the dynamics and interaction that
accompany the two approaches between the branches of government.
The two countries are particularly suitable for such an enquiry
as they share a legal heritage, but have diverged increasingly
over the last decades in how to protect human rights. While the
thesis generally favours a principled approach as now
predominantly applied in the UK, it does not simply propose a
legal transplant for Australia, which so far has rejected any
legislation including principles. Rather the comparison points
out the reasons why Australian judges behave differently and
challenges the Australian Parliament to amend the relevant
legislation in accordance with its own values in order to retain
high standards of fair trial protection in proceedings dealing
with sensitive information.
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