Evidence in Criminal Proceedings: Hearsay and related topics [1997] EWLC 245(5) (19 June 1997)

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5.1 Before assessing six different options for reform in the next Part, we consider in this Part the implications of the European Convention on Human Rights for any proposed reforms. The United Kingdom has ratified the Convention, and has thus undertaken obligations in international law that it will conform in its domestic practice with the terms and principles of the Convention. (1)

5.2 In the consultation paper we explained that we tendered our provisional view on the relevance of the Convention with great diffidence, as it is difficult to predict with confidence the attitude of the European Court of Human Rights ("the Strasbourg Court"). (2) There are three reasons for this. First, the terms of the Convention are vague. Second, on many issues there is a dearth of decided authority. Finally, perhaps because the Strasbourg Court aims to interpret the Convention as a "living, developing document", the doctrine of precedent weighs much less heavily with the Strasbourg Court than it does in English law, and the court appears to be changing its attitude to hearsay. In any event, "there is little predictive value, and not a great deal of consistency". (3)

ARTICLE 6

5.3 The principal provision of the Convention which protects the rights of the defendant at trial is Article 6, the relevant parts of which read as follows:

5.4 The requirements of Article 6(3)(d) comprise one of the factors to be considered when the Strasbourg Court decides whether or not there has been a fair trial within the meaning of Article 6(1); the two provisions are not considered independently of each other. (5)

5.5 Although several judgments of the Strasbourg Court in the last ten years have considered the impact of these provisions on the use of hearsay evidence by the prosecution, none of these cases come from the United Kingdom. (6) These decisions are hard to reconcile.

5.6 A series of decisions of the Court makes it plain that the word "witness" goes beyond its usual meaning (to an English lawyer) of someone who attends the trial to give oral evidence. It also includes a person who has made a formal statement to the police, which the prosecution has then put in evidence at trial. (7)

5.7 All the people whom the Strasbourg Court has so far categorised as "witnesses", however, are people who have fed information, consciously and voluntarily, into the criminal justice system. In English parlance, the cases are concerned with depositions and police witness statements. It does not necessarily follow that a casual remark allegedly made by a third party, which a live witness repeats in evidence, counts as a statement of a "witness", thus triggering the defendants right to question the witness for instance, where a policeman giving evidence says "Smith had said to me that he was going to the church with a ladder, so I went there, and found him on the roof stripping the lead." Relying on Smiths statement for its truth would fall foul of the hearsay rule in England and Wales, but it would be considered unobjectionable in most Continental systems, and whether or not it breached Article 6(3)(d) would probably depend on all the circumstances taken together. The use of documentary evidence such as trade or business records, as evidence of transactions which are ingredients in the offence charged, seems less likely to be in breach of Article 6(3)(d) than the use of depositions and police witness statements in place of oral evidence from the witness. (8)

5.8 When will a trial be found to be unfair? The Strasbourg Court has said that the general principle of fairness is that all the evidence should be produced in the presence of the accused at a public hearing with a view to adversarial argument. (9) However, the cases show that this principle is not invariably observed to the letter. In the context of possible reforms to the English hearsay rule, the significance of the rule that the accused should have the opportunity to put questions to the "witnesses against him" raises the following three issues:

Is there a right to put questions directly?

5.9 The right "to examine or have examined witnesses against him" could be read as requiring the questions to be put directly by the defence: the defendant has the right "to examine witnesses" by putting questions in person where he or she is unrepresented or "to have witnesses examined" by getting the defending lawyer to put them, where the defendant is represented. If it is read in this way then it is understandable that Article 6(3)(d) was not found to have been violated where the lawyer was allowed to put questions to the witnesses, but the accused himself was not allowed to be present (13) though it may seem surprising that the Strasbourg Commission found Article 6(1) to be satisfied in these circumstances.

5.10 It is much more likely, however, that the phrase "examine or have examined" was used to take account of the two different methods which the various European legal systems use for the examination of witnesses the common law method, where witnesses are examined directly by the parties, and the method used in France, Germany and many other countries, where it is the presiding judge who examines the witnesses, and who can insist on the parties putting any questions they may have through the judge. (14) Thus, for example, it would not offend against Article 6(3)(d) to provide that certain kinds of highly vulnerable witness should have the questions of both sides put to them through a single neutral person. (15)

Must the defence be able to put its questions at the trial itself, or may the questions be put at an earlier stage?

5.11 It is clear that the questions need not be put during the course of the trial itself. While the Strasbourg Court has said that it is preferable for the witnesses to be questioned orally at trial, the defendants rights are not infringed if the court hears or reads the statement of an absent witness, provided that the defence had an opportunity to put its questions to him or her at an earlier stage. (16)

5.12 From this it follows that there could be no objection under Article 6(3)(d) of the Convention to an English court hearing the deposition of an absent witness which had been taken before a magistrate with the defence present, under provisions such as sections 42 and 43 of the Children and Young Persons Act 1933. Nor would there be any objection to the sort of procedure which the Pigot Committee proposed for taking the evidence of children ahead of trial. (17) On the other hand, provisions like section 23 of the 1988 Act, which make admissible statements given to the police when the accused is neither present nor represented, could, in certain circumstances, be incompatible with the Convention.

Will a statement be inadmissible if the accused has never had a chance to question the witness?

5.13 Is it ever possible to put before the court the statement of an absent witness whom the defence has never had a chance to question, without infringing the defendants rights under Article 6(3)(d)? There are two possible views. On a literal reading of Article 6, the answer might well be in the negative, and in the consultation paper we tended to this view. (18) Article 6(1) guarantees the defendant a trial that is in broad terms fair, and Article 6(3) gives him or her certain minimum rights without which the trial cannot be fair. Thus if the evidence in question counts as the statement of a "witness" it may not be used in evidence unless the defence had a chance to put its questions, however inconvenient that may be for the prosecution.

5.14 This is the line taken by the Strasbourg Court in Unterpertinger v Austria, (19) where it was held that the use of statements made to the police at an earlier time infringed the defendants rights. It was irrelevant that it was impossible to arrange a confrontation between the witnesses and the defence because the witnesses decided to exercise their privilege, as relatives of the defendant, to refuse to give any further evidence. The Court took a similar approach in Windisch v Austria (20) when it said:

5.15 This was also the approach of the Court in Lüdi v Switzerland, (22) and the same principle was reiterated in Saïdi v France (23) where the accused had been convicted of drugs offences and involuntary homicide on identification evidence. The witnesses were examined by the juge dinstruction, but the defendant was not present and his request for a confrontation was refused. The Court held that the accused had not been given an "adequate and proper opportunity to challenge and question a witness against him".

5.16 However, we said in the consultation paper that it might be legitimate to take an alternative view; (24) and in the light of the responses received, we are now inclined to this alternative view. This would involve saying (contrary to the literal wording of the Convention) that the rights expressly conferred by Article 6(3) are not absolute rights: they are merely factors which have to be considered in deciding a broader question "Did the defendant receive a fair trial as required by Article 6(1)?" On this view it is proper for the court to allow in evidence the pre-trial statement of an absent witness whom the defendant has had (and will have) no chance to question, provided, first, that it is genuinely impossible to produce the witness for defence questioning, and second, that this evidence is supported by other evidence against the defendant.

5.17 Although this line of reasoning is not really compatible with the dicta we have cited from the Unterpertinger and Windisch cases, it is the line that the Strasbourg Court has taken in a number of other cases. (25) Unterpertinger has not been reversed or overruled, but its effect has been diluted. In at least three later decisions the court has accepted that criminal proceedings can be "fair" despite the use of statements from witnesses whom the defence was unable to question. (26)

5.18 Thus in one case the Court condoned the use of the statement where the witness was excused from the further questioning which the defence had requested, partly because of his age and ill-health. (27) In another case, it condoned the use of the statement where the key witness, who had been questioned by the police and by the presiding judge, but not by the defence, could not be heard because she could not be traced. (28) The majority of the Court found that the existence of other incriminating evidence, coupled with the accuseds role in avoiding a confrontation with the witness at the pre-trial stages, justified the reception of the statement. One of the dissenting judges, Judge Vilhjálmsson, held that such a breach of the defendants rights could not be justified in this way, because Article 6(3)(d) provided a "minimum" right.

5.19 In a third case the Court condoned the use of the statement where the witnesses, as relatives of the accused (as in the Unterpertinger case), had exercised their privilege not to testify, saying that "the right on which [the witness] relied in order to avoid giving evidence cannot be allowed to block the prosecution". (29) This ruling conveys the impression that, when striking the balance between the public interest in securing convictions of the guilty and the public interest in the adequate protection of the accused, the Court has had regard on occasion to the practicalities of criminal procedure, which must, nonetheless, remain fair. (30)

5.20 In each of these cases the Strasbourg Court thought it was an important element in making the trial a fair one that the national court had been able to base its guilty verdict on other evidence as well though it is hard to see how the "other evidence" in Asch which justified the verdict (medical evidence and evidence of the accuseds disposition) differed in quality from that in Unterpertinger (medical evidence, the accuseds accounts and the divorce file), which did not. In these later cases the Court has, in effect, accepted that there can be derogations from a strict interpretation of Article 6(3)(d) on the grounds of sufficiency of other evidence. (31) This must necessarily entail the Court not only deciding which items of evidence carried weight with the regional court, but also engaging in the exercise of assessing that evidence, as Judge Thór Vilhjálmsson said was being done in Artner v Austria.(32)

The use at trial of a witnesss previous statements

5.21 There is a decision of the Strasbourg Commission which indicates that, in certain circumstances, it is not unfair for the court to rely on the contents of previous statements of witnesses who testify in court. In X v FRG (33) two witnesses, A and W, had made statements to the police that they had received heroin from the accused. These statements were read out at trial. The witnesses were called and they both denied that they had received heroin from the accused. On appeal, their statements were read out again. W gave oral evidence again and still denied that the statement was true, whereas A was not heard (and the accused did not object). The Commission held that there was nothing wrong with the court relying on the original statements "as long as the use of such evidence is not in the circumstances unfair". It found that there was no unfairness because the accused had the opportunity to put questions to both witnesses at trial and to one of them on appeal; the accused had not objected to As statement being read at the appeal without A being called; it was not the only evidence, the other evidence consisting of oral evidence from two police officers and a third civilian witness; and the court had carefully considered the issue of the witnesses credibility. (34)

Victims of crime and the Convention

5.22 Most of the case law of the Strasbourg Court on issues of criminal procedure has arisen from the parts of the Convention which provide guarantees for defendants. However, victims of crimes have human rights as well, and if a countrys rules of criminal law, procedure or evidence are ineffective to protect such victims, this deficiency sometimes enables them to complain that their rights under the Convention have been infringed.

5.23 In the consultation paper we noted that English law is arguably open to criticism to the extent that it sometimes gives a vulnerable complainant the right in theory to be heard, but extracts for this right a price which many reasonable people in that category (or those whose job it is to care for them) might find so high that they would prefer to let the offender get away with it. (35) In one recent case a woman who was both mentally handicapped and epileptic was obliged to give evidence in open court, and undergo a prolonged cross-examination which caused her to suffer epileptic fits. (36) In another, a sex case, a child of 12 was cross-examined for over a week. (37) The requirement to give oral evidence is a greater obstacle for mentally incapacitated people than for others. Although the hearsay rule has an impact upon the particular problems faced by vulnerable witnesses, we believe that the issues surrounding the evidence of such witnesses are beyond the scope of this report and need to be considered separately. (38)

5.24 In the United Kingdom all official proposals to reform the hearsay rule have proceeded on the basis that the rule, and any exceptions to it, must operate in the same way for the prosecution as for the defence. (39) As far as the Convention is concerned, this is clearly not the case: although Article 6(3)(d) puts limits on the extent to which the prosecution may make use of hearsay evidence, nothing in Article 6 restricts the use of hearsay evidence by the defence. However, the second part of Article 6(3)(d) requires the attendance and examination of witnesses called against the accused under the same conditions, and some dicta of the Strasbourg Court describe the aim of Article 6 as being to put defence and prosecution on an equal footing. (40)

The right of the defendant to adduce hearsay evidence

5.25 We have previously referred to cases such as Sparks, (41) in which the Judicial Committee of the Privy Council held that a trial judge had rightly rejected evidence that the three-year-old victim of an indecent assault had told her mother that the wrongdoer was a coloured man, whereas the accused was white. Since Article 6(3)(d) does not apply to the defence in the same way as to the prosecution, it does not follow that evidence which the prosecution could not adduce should be excluded if tendered by the defence. On the contrary, the exclusion of cogent exculpatory evidence could constitute a violation of the right to a fair trial under Article 6(1). But where there are a number of defendants, the exercise by one defendant of a right to put in hearsay evidence might be fair under the Convention from that individuals point of view, and yet be unfair as against another defendant.

PROVISIONAL CONCLUSIONS IN THE CONSULTATION PAPER

5.26 If a complaint is made that there has been a breach of the Convention, the Strasbourg Commission and the Court will look at all the circumstances of the case, and consider the proceedings as a whole, in order to decide whether there has been a violation of Article 6(1) or Article 6(3)(d). In Saidi v France it was held that

the taking of evidence is governed primarily by the rules of domestic law and it is in principle for the national courts to assess the evidence before them. The [Strasbourg] Courts task is to ascertain whether the proceedings in their entirety, including the way in which evidence was taken, were fair. (42)

5.27 In the consultation paper we drew five main conclusions for possible reforms to the hearsay rule in England and Wales. (43) First, the use of hearsay evidence is compatible with the Convention if it consists of the statement of a witness whom, in the pre-trial phase, the defence has had a chance to question.

5.28 Secondly, the use of hearsay evidence which consists of statements from people whom the defence has had (and will have) no chance to question is probably compatible with the Convention where questioning by the defence is genuinely impossible; but such evidence should not found a conviction if it stands alone. (44)

5.29 Thirdly, where a witness does appear in court, there would apparently be no breach of Article 6(3)(d) if the court were to accept an earlier statement made by the witness as evidence of the truth of its contents even where the witness has later contradicted that statement in the course of his or her oral evidence. (45)

5.30 Fourthly, although it is not necessary for the rules of evidence to apply in the same way to the prosecution and to the defence, the Convention requires that the accused should not be in a less advantageous position than the prosecution.

5.31 Finally, if a defendant were not allowed to use a cogent piece of evidence because it fell foul of the hearsay rule, he or she might be able to complain successfully that this infringed the right to a fair trial under Article 6(1); and the present operation of the rule leaves it open to this criticism. (46)

We believe the risk of there being a breach of the Convention where a person stands to be convicted on hearsay evidence alone is sufficiently serious to warrant requiring the court to stop the case where hearsay is the only evidence of an element of the offence. We provisionally propose that unsupported hearsay should not be sufficient proof of any element of an offence.

THE RESPONSE ON CONSULTATION

5.33 On consultation, we received cogent and powerful criticisms of the conclusion and provisional proposal in the preceding paragraph. These criticisms came from respondents with substantial knowledge of the Convention and of general criminal law principles. There were two aspects to these criticisms: that we were unduly cautious in our assessment of what the Convention requires, and that our proposal was beset with practical difficulties.

5.34 Phillips LJ was not persuaded that the provision we proposed was positively required by the Convention. He considered that it would "introduce a potentially complex and obstructive technicality without solving that problem." He pointed out that if Article 6(3)(d) really is contravened by the hearsay rule, then it is not only English law that is vulnerable to criticism: "half the continental procedure is also likely to have to be torn up". This is because other legal systems use a written dossier, compiled at the pre-trial phase, which includes statements of witnesses and is admissible in evidence at the trial. It is significant that in many European countries what would be called hearsay in England and Wales is admissible, and does not appear to be in contravention of the Convention. (47) Buxton J also doubted that the jurisprudence on the Convention justified our proposal. According to Dr Andrew L-T Choo, (48) the judgments on the Convention suggest that

5.35 Turning to the practical implications of our proposal, we were told by many respondents of the difficulties it would cause. First, we were warned by Stuart-Smith LJ and Jowitt J, amongst others, that we would be likely to encounter problems with the concept of "supporting evidence" similar to those of corroboration. (49) Professor Sir John Smith commented that

5.36 Secondly, if our provisional proposal were implemented, complex judicial directions to juries would be needed. The Office of the Judge Advocate General pointed out that this requirement "may be one of the principal stumbling blocks to reforming the current rules".

5.37 Thirdly, we were told by Phillips LJ, Buxton J and Professor Sir John Smith that our requirement would introduce complexity and lead to endless argument.

5.38 Finally, the Crown Prosecution Service made the valid point that a literal interpretation of our provisional conclusion was that however much other evidence there might be, if the only evidence of one element is hearsay then there would be no case. They cannot support that position; nor can the Society of Public Teachers of Law.

5.39 We found these arguments very persuasive. It became clear to us that not only would our proposal lead to much legal argument about what constitutes supporting evidence, but that in some cases there could be no better evidence than the hearsay evidence which under our proposal would need to be backed up. For example, the hearsay statement might consist of a statement in a business document prepared by somebody with substantial knowledge of the matters set out, and yet be incapable of any form of corroboration save for a statement by the writers superior that the writer was a reliable and conscientious employee.

5.40 In the light of the comments received on consultation, we have reconsidered our provisional proposal and looked again at the safeguards that could be given to the party against whom the hearsay evidence would be adduced. These are set out in detail in Part XI below and summarised at paragraphs 1.48 1.50 above. We are satisfied that such safeguards, and in particular the duty on the court to acquit or direct an acquittal if the case depended wholly or substantially on unconvincing hearsay evidence such that a conviction would be unsafe, (50) would provide adequate protection for the accused.

CONCLUSION

5.41 Our conclusion, therefore, is that the Convention does not require direct supporting evidence where it is sought to prove a particular element of the offence by hearsay. Adequate protection for the accused will be provided by the safeguards we propose, and in particular by recommendation 47. We are inclined to agree with the suggestion of Phillips LJ that we ignore that provisional proposal "unless and until the jurisprudence of Strasbourg demonstrates that our hearsay rules are in conflict with the Convention". (51) The other conclusions set out in paragraphs 5.27 5.31 above stand.

(5)"The purpose of 6(3)(d) is to put the accused person on an equal footing with the prosecution": X v FRG Appl 1151/61, (1962) 7 Collection of Decisions of the European Commission of Human Rights 118. See also Barberà, Messeguè and Jabardo v Spain (1989) 11 EHRR 360 and Ochensberger v Austria (1995) 18 EHRR CD170, 171.

(6)In Blastland v United Kingdom Appl 12045/86; (1988) 10 EHRR 528, the Strasbourg Commission found that what it understood to be the purposes of the hearsay rule of English law, namely ensuring that the best evidence is before the jury and avoiding undue weight being given to evidence which cannot be tested by cross-examination, were legitimate and that in principle the rule did not entail a breach of Article 6(1). The Commission did not discuss the legitimacy of the exceptions to the rule.

(7)This is implicit in the judgment in Unterpertinger v Austria (1991) 13 EHRR 175. The Strasbourg Court made the point explicitly in Kostovski v The Netherlands (1990) 12 EHRR 434, para 40; Delta v France (1993) 16 EHRR 574, para 34; Artner v Austria (1992) Series A No 242, para 19; and Windisch v Austria (1991) 13 EHRR 281, para 23.

(14)In X, Y and Z v Austria Appl 5049/71, (1973) 43 Collection of Decisions 38 (a case before the Strasbourg Commission which was declared inadmissible), important witnesses were heard "on commission" abroad. Neither the prosecutor nor, despite requests, the defendants representative were allowed to be present. Article 162 of the Austrian Code of Penal Procedure expressly provides for this procedure. Supplementary questions were put to the witnesses on the same basis at the request of the defence after it had studied the record of the first examination. The Commission therefore found that the accuseds right "to have examined witnesses against him" had been respected. Because Article 6(1) did not apply to the proceedings, the Commission could not go on to consider whether the trial as a whole was fair. Commissioner Trechsel has said extra-judicially in a speech to the Ministry of Justice in Vienna ("Die Garantie des fair trial nach Art 6 EMRK und das strafprozessuale Vorverhahren", 17 September 1992) that the defendants rights under the article are met if he or she can put questions through the judge.

(15)As the Pigot Committee proposed for very young or seriously traumatised children: Report of the Advisory Group on Video Evidence (Home Office, 1989), pp 27 ff.

(16)In Kostowski v The Netherlands (1990) 12 EHRR 434, para 41, the Strasbourg Court held unanimously that

The Strasbourg Court repeated this statement in Delta v France (1993) 16 EHRR 574, para 36, in Asch v Austria (1993) 15 EHRR 597, para 27, and in Saïdi v France (1994) 17 EHRR 251, para 43. If the witnesses are questioned at a pre-trial hearing in the absence of the accused, this will not necessarily be unfair if the witnesses were heard again at trial when they could be questioned by the defence: X v FRG Appl 6566/74, (1975) 1 D & R 84; Liefveld v The Netherlands (1995) 18 EHRR CD103. See also Isgrò v Italy (1991) Series A No 194. The same approach is taken in Canada: Potvin [1989] 1 SCR 525.

(19)(1991) 13 EHRR 175. The accused was charged with assault on his wife and step-daughter. Although they had made statements to the police, by the time of the trial they refused to testify. They claimed a privilege which would not be available to them under English law. However, the scenario of alleged victims of assault refusing to testify is a familiar one.

(22)(1993) 15 EHRR 173. The accused had been convicted of drug trafficking on evidence which included statements by an anonymous witness, an undercover police officer, who, to preserve his anonymity, was never examined by the presiding judge, let alone by the defence. The Strasbourg Court found that Article 6(3)(d) had been breached.

(25)The Court has followed an approach taken by the Strasbourg Commission in X v Austria Appl 4428/70, (1972) 15 YB EHRR 264, where the Commission rejected the appellants complaint as inadmissible on the ground that there was no absolute right to examine opposition witnesses. Part of the evidence against the appellant had consisted of hearsay evidence of a former Czech diplomat and an anonymous German secret service agent. The conviction stood nonetheless.

(27)Bricmont v Belgium (1990) 12 EHRR 217 although it should be noted that in the case of Mr Bricmont, who was co-accused with his wife, the complaint succeeded. As there was no other evidence against him, the Strasbourg Court held that the trial had not been fair.

(28) Artner v Austria (1992) Series A No 342. Both the Commission and the Court reached their decisions in this case by majorities, of 9-7 and 5-4 respectively.

(30)The same balancing act can be seen in the reasoning in a Commission decision, X v Belgium Appl 8417/78, (1979) 16 D & R 200, where the accused was charged with arson occasioning loss of life. His brother had died in a house fire which the police originally thought was accidental. However, an unnamed person told the police that the accused and his brother had had a row on the night of the fire. A police witness repeated in court what the anonymous informer had said. It was plain that the accused would not have been prosecuted had it not been for the remark of the informant. The Strasbourg Commission approached the question thus (at p 208):

(34)See also a comparable case of the Canadian Supreme Court: R v KGB (1993) 79 CCC (3d) 257; para 10.99, n 108 below.

(38) See paras 11.40 11.41 of the consultation paper and paras 12.15 12.16 below. An inter-departmental group with representatives from the Home Office, the Lord Chancellors Department, the Legal Secretariat to the Law Officers, the Crown Prosecution Service, the Department of Health and the Scottish Office is reviewing court procedures for people with learning disabilities.

(39)Eg, the proposals of the CLRC Evidence Report, para 250. See para 12.10 of the consultation paper.

(46)The defendant in Blastland v United Kingdom 12045/86; (1988) 10 EHRR 528 (para 5.5, n 6 above) ran this argument, but the Strasbourg Commission declared his complaint inadmissible partly because, although he was not permitted to lead hearsay evidence of what the third party had said, he knew who the person was and there was (theoretically) nothing to stop him calling that person as a defence witness; and partly because he had the right to challenge the ruling, and it could not therefore be said that there was not "equality of arms". This consideration weighed heavily with the Commission, and if this possibility had not existed the answer might have been different. See Vidal v Belgium (1992) Series A No 235-B, where the Strasbourg Court upheld the defendants complaint that he had not received a fair trial where the Brussels Court of Appeal had refused to allow the defendant to call possibly relevant defence evidence, because they had given no reason for their refusal.

(47)See paras 5.6 and 5.7 above and Appendix B of the consultation paper, which sets out in greater detail the provisions of different civil jurisdictions.

(48)The author of the newly published monograph, Hearsay and Confrontation in Criminal Trials (1996).

(49)These rules were repealed by the Criminal Law and Public Order Act 1994, s 32, following recommendations made by this Commission in Corroboration of Evidence in Criminal Trials (1992) Law Com No 202. Mr Peter Mirfield of Jesus College, Oxford asks "What, precisely, will be capable of amounting to corroboration such that the case can go ahead? Will we not need some technical rules Baskerville reborn, perhaps?". For details of the complexities of the law of corroboration and the problems of Baskerville reference should be made to Law Com No 202, paras 2.7 2.12, and Cross on Evidence (7th ed 1990) ch 6.

(50) This safeguard was not put forward in the consultation paper. It is considered in more detail at paras 11.26 11.32 below.

(51) Mr Peter Mirfield implored us to "do the right thing and let the Convention look after itself".

The Law Commission