The triangulation of interests fallacy

Some criminal courts apply a model that they call a "triangulation of interests" when they purport to determine whether a course of action would be fair to the accused. According to this model, which is flawed, the interests of the accused are balanced against those of the community and those of the victim. It is false to suggest that a fair trial for the accused is not a community interest. Fair trials for accused persons is so important that the community, through its laws, recognises that the prosecution must prove guilt beyond reasonable doubt before a conviction can be entered. Similarly, fair treatment for victims is also an important community interest. However, criminal trials are different from civil trials in an important respect. In civil cases fairness can be a matter of triangulation of interests. That may mean that proceedings have to continue notwithstanding some forensic disadvantage to a party. The court, in these cases, has the task of ensuring any such disadvantages do not amount to civil unfairness in a triangulated sense, and of staying the proceedings if there is no other way of avoiding an unfair trial.

But in criminal cases, the accused's right to procedural fairness is the dominant, or basic, concern. In contrast, the prosecution may have to accept some unfairness, for example where probative evidence against the accused is ruled inadmissible for public policy reasons. It is often said that if an accused cannot be tried fairly then he should not be tried at all. Triangulation is not an appropriate method of determining unfairness to the accused, but unfortunately this point has not always been clear.

In R v A (No 2) [2002] 1 AC 45 (HL) at 65 Lord Steyn acknowledged the absolute nature of the accused's right to a fair trial, and that a conviction obtained in breach of this right cannot stand (citing R v Forbes [2001] 1 AC 473, 487 para 24). He referred to the balancing exercise as being directed at what a fair trial entails. This asks us to contemplate a triangulation process to determine what course is appropriate, and to use that to define the procedural fairness of the trial from the accused's point of view. One might wonder whether, if the meaning of "fair trial" is determined by balancing, the right to a fair trial can really be said to be absolute.

Another variation on the triangulation model was used in Mohammed v The State [1999] 2 AC 111 (PC), in which Lord Steyn was a member of the Board. The model used in this case envisages the balancing exercise as applicable to rights that are "lesser" than the accused's right to procedural fairness, but in respect of the latter right no balancing is permitted because his right is absolute. This seems to leave intact the meaning of "fair trial" but without saying what that meaning is.

There is, unfortunately, some evidence of a drift back to a flawed approach whereby fairness to the accused is seen as something that can be diminished (derogated from). In R(Ullah) v Special Adjudicator [2004] UKHL 26 (17 June 2004) Lord Steyn, in some obiter comments in para 44 that were, it is respectfully suggested, unfortunate, said that the rights in Article 6 of the Convention (which include the accused's right to a fair trial) are subject to derogation in time of war or public emergency, in which circumstances a triangulation of interests arose. It is difficult to see what relevance extreme conditions have to the ordinary administration of the law. The other Law Lords did not refer to this point, and Lord Carswell, said (carefully) that he agreed with what Lord Steyn and Lord Bingham said about Articles 2,4,5,7 and 8 (ie omitting 6). Lord Bingham referred to the need for a "flagrant" denial of the right to a fair trial, but he effectively said in para 24 that that means that there must be a strong case for the claim that there would be unfairness. Baroness Hale rather briefly, and confusingly, said she agreed with Lords Bingham, Steyn and Carswell.

For an update, see my tribute to Lord Bingham in this commentary, 16 September 2010.