Report and Recommendations - Scottish Government

The long term implication of this, which was highlighted in Cadder, is thatthere is a need to develop a system of criminal justice based on the protectionof human rights; in particular those contained in Articles 3, 5, 6 and 8 of theConvention. This has been the key consideration informing the Review.3.0.3 The Review’s task has been to identify the fundamental principles that mustapply in a modern, fair and effective system for the investigation andprosecution of crime and to assess the extent to which existing law andpractice needs to be developed, adjusted or even overhauled in order tocomply with those principles. It is clear that many of the formulations ofthose principles must now be derived mainly, and sometimes perhapsexclusively, from the Convention. In addressing this dimension, the Reviewhas been conscious that there has to be developed a system which isConvention compliant overall and not just one containing an accumulation ofindividually compliant but unrelated constituent parts.3.0.4 The Convention itself is a concise and relatively clear text. As drafted, it is areadily understandable code of human rights, each of which is manifest fromthe express terms of the individual articles and sub-articles. But the rightshave been interpreted by the European Court in a manner which is appropriateto the particular circumstances of individual cases. There has developed anextensive jurisprudence of implied, subsidiary or supplementary rights which,although not explicitly recognised in the Convention, are taken by the Court toform part of the protections that it provides. In the context of the Article 6right to a fair trial, for example, there exists an implied right to silence, the50