Sometimes you really do wonder if Labour’s wide-eyed Euro supporters realise just how tightly they have tied their own hands. Take Jack Straw, proposing new “emergency legislation” to allow anonymous witnesses in trials. No one seems to have mentioned the European Convention on Human Rights, which is senior to English law since our gullible MPs incorporated it in the 1998 Human Rights Act. In doing so, they handed to Strasbourg the right to decide what was a “fair trial”.
Straw is understandably furious about the £6m murder case collapsing when the Law Lords said anonymous witnesses were inadmissible. As The Times pointed out, dozens more cases are now at risk. But even if Straw changes those English laws, he will be unable to change the ECHR which has plenty to say on the subject of anonymous witnesses.
The test case was Kostovski v. The Netherlands in 1989, about anonymous witnesses used to convict an armed robber. Anonymous, because they feared reprisals. The conviction was quashed under Article 6 (3d) of the ECHR which says it is a basic human right in a trial for the defendant “to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”.
This Kostovski principle has been developed at cited in subsequent ECHR rulings such as the Windisch v. Austria ruling in 1990 and the Teixeira de Castro v.Portugal ruling of 1998. As I say in my News of the World column today – Straw can legislate all he likes, he cannot overturn the ECHR. He may think this is unfair, just as Jacqui Smith thought it was unfair when Abu Qatada was released under Article 6 of the ECHR.
And a word of advice to the Tories. This ludicrous situation cannot be overturned by a Bill of Rights, unless the Bill of Rights is explicitly made senior to the ECHR. And being an ECHR signatory is a condition to being on the Council of Europe.
And a word of warning to Tory supporters. The Shadow Home Secretary, Dominic Grieve, is a big fan of the ECHR and used his maiden speech to advertise that he disagreed with his fellow MPs “but it is a variance I have held for some time.” He’s a believer – so don’t expect him to be the one that pulls us out of this mess.
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