Report and Recommendations - Scottish Government

incrimination. It should be specifically stated that statements obtained by theuse of methods amounting to coercion or oppression in defiance of the will ofthe suspect are thereby inadmissible 53 . Where objection is taken to evidenceof an admission by a suspect, the onus would remain on the Crown to prove tothe satisfaction of the trial judge, on a balance of probability, that theadmission of the statement would not render the trial unfair. Such a provisionwould make it clear that this area of law must be governed by the applicationof Article 6 principles; that is to say from the perspective of the accused’shuman rights. It cannot be done by way of a general balancing of individualand societal rights as would be the case at common law, as that has thepotential for decisions to be in conflict with the Convention 54 .6.2.61 A trial is either fair or not and fairness is not capable of modification to meetperceived societal requirements in any individual case 55 . The Review hasconsidered whether the standard ought to be proof of fairness “beyondreasonable doubt”. However, that is the test used in the overall factualassessment of a person’s guilt and not in the determination of eitherconstituent parts of a case or questions of law, such as the admissibility ofevidence. In practice, it may not matter a great deal what standard is applied,but it would be consistent with principle if it remained that of balance ofprobability, as accepted in Thompson v Crowe 56 .53 see Gafgen on the interaction between Articles 3 and 6, at para 17554 e.g. McLean as analysed in Cadder55 cf Gafgen at para 17856 2000 JC 173, LJG (Rodger) at 192 following the approach of the Australian courts in Wendo v TheQueen (1964) 109 CLR 559, Sir Owen Dixon at 572; followed in Platt v HM Advocate 2004 JC 113,LJG (Cullen) at para 11198