Article 6 Flashcards
Step 1: What is Article 6?
Article 6 is the right to a fair trial. This is a limited right which means the state can restrict the right if it is prescribed by law and is allowed for under the Article or the state derogates
Step 2: History of right to a fair trial
The right to a fair trial has a long standing history in English Law
-
Magna Carta 1215: promised ‘to no one shall we refuse or delay, right or justice’
- ‘delay’ - reasonable time
- Bill of Rights 1689: banned the use of excessive fines and prtected the right to trial by jury
- Act of Settlement 1701: enshrined judicial independence protecting the judiciary from political pressure which were more recently guaranteed in s.3 Constitutional Reform Act 2005
Step 2: History of right to a fair trial
Common law also protects the right to a fair trial
- Woolmington v DPP: protects the presumption of innocence and put the burden of proof on the prosecution
Step 3: Article 6 (1)
Article 6 (1) doesn’t provide any restrictions however amongst other things, it requires a public hearing
When can the press and public be excluded from all or part of a trial?
- morals
- public order
- national security
- interets of juveniles
- protection of the private life the parties require
- the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice
Step 3: Article 6 (1)
Civil rights and obligations
Art 6 (1) includes a fair trial of civil rights. These are private rights in areas such as tort law, employment law, family law etc
They are usually areas of civil law where money is involved. It does not apply to public rights, taxation, immigration or political matters
Step 3: Article 6 (1)
Criminal charge
The ECtHR has given a general meaning to ‘criminal charge’ so that states cannot avoid the rights under Art 6. To decide if the charge is criminal, they will consider
- if the state defines the offence as criminal the ECtHR will also
- the nature of the offence and the severity of the penalty
ECtHR has accepted that antisocial behaviour orders (ASBOs) are a civil matter even though breach of an ASBO results in a criminal sanction (McCann v UK)
Step 3: Article 6 (1)
Reasonable time
Criminal and civil cases should be heard within a reasonable time. What is considered ‘reasonable’ will depend on the complexity of the case
Beggs v UK: he was awarded €6,000 for a violation of Article 6 when his appeal took over 10 years to reach the Scottish appeal courts
Step 3: Article 6 (1)
Reasonable time
What are the reasons for an early trial?
- the witness’ memory of the incident
- preseveration of the evidence
- preventing a long state of uncertainty for the accused
- the maintenence of public confidence
Step 3: Article 6 (1)
Independent and impartial tribunal
The decision makers in the court must be impartial from political pressure and the partied themselves. If there is evidence or prejudice or bias in a civil case, damages will be awarded. Evidence of the same in a criminal case will result in a conviction being quashed or a re-trial
- Bryan v UK:* no violation of Article 6 because the applicant could apply for judicial review of such a decision
- Pincochet:* The decision makers in the court must be impartial from political pressure and the parties themselves. Violation of Art 6 as one of the judges wasn’t impartial - Lord Hoffman
Step 3: Article 6 (1)
Independent and impartial tribunal
Jury tampering
In criminal cases where there is evidence of jury tampering, the judge has the right under s.44 Crimimal Justice Act 2003 to try the case without a jury.
This power has only been used once in R v Twomey to convict armed robbers who stole £1.7 million from Heathrow Airport
Step 3: Article 6 (1)
Independent and impartial tribunal
What will happen if there is evidence of prejudice or bias in a criminal case?
Re Pinochet
The conviction will be quashed or there will be a re-trial
There was a lack of independence in Re Pinochet due to one of the judges failing to declare his links to Amnesty International
Step 3: Article 6 (1)
Independent and impartial tribunal
What will happen if there is evidence of prejudice or bias in a civil case?
Bryan v UK
damages paid to the C
There was no violation in Bryan v UK even though it was shown that there was a lack of independence because the applicant could apply for judicial review
Step 3: Article 6 (1)
Public Hearing
The right to a public hearing protects individuals from secret decisions that may breach their rights and limit their ability to appeal. Trials held ‘behind closed doors’ have the illusion of corruption and go against the notion of natural justice
An oral declaration of the outcome of a case and allowing the public to watch proceedings, is a long established tradition in the court. Public confidence in the legal system is improved when justice is seen to be done when the court is open to the public
Art 6 (1) may allow cases involving national security to be held in private.
- R v Incedal and Rarmoul Bouhadjar:* trial held partially in secret as is was to do with national security. Mental Health Tribunals and Youth Courts are always held in private
- Osman v UK:* Always be open to C’s to put their case before a judge and blaket rule which interfered wasn’t acceptable
Step 4: Article 6 (1)
Elements of a fair trial
- Access to court
- Equality of arms
- Attendance at court and right to participate
- Rules of evidence
- Presumption of evidence
- Legal representation
- A reasoned and final judgement
Step 4: Article 6 (1)
Elements of a fair trial
Access to Court
Access to court requires a structure of courts and appeals.
Some cases of limitation periods which prevent cases being brought after a certain amount of time (3 years for personal injury claims and 6 years for contract law or property claims in court)
Some people’s access to court is restricted by their financial position. Although legal aid is available in some cases, individuals may find their access to court very limited
- Steel and Morris v UK:* The levels of complexity and the different levels of legal support were so great to make the case unfair under Article 6
- Golder v UK:* a prisoner wanted to sue the prisoner and wasn’t allowed to see a solicitor. This was a violation of Art 6 as the right to a fair trial includes access to court