Article 6

Question 1

Step 1: What is Article 6?

Answer 1

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

Question 2

Step 2: History of right to a fair trial

The right to a fair trial has a long standing history in English Law

Answer 2

• 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

Question 3

Step 2: History of right to a fair trial

Common law also protects the right to a fair trial

Answer 3

• Woolmington v DPP: protects the presumption of innocence and put the burden of proof on the prosecution

Question 4

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?

Answer 4

• 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

Question 5

Step 3: Article 6 (1)

Civil rights and obligations

Answer 5

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

Question 6

Step 3: Article 6 (1)

Criminal charge

Answer 6

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)

Question 7

Step 3: Article 6 (1)

Reasonable time

Answer 7

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

Question 8

Step 3: Article 6 (1)

Reasonable time

What are the reasons for an early trial?

Answer 8

• the witness’ memory of the incident
• preseveration of the evidence
• preventing a long state of uncertainty for the accused
• the maintenence of public confidence

Question 9

Step 3: Article 6 (1)

Independent and impartial tribunal

Answer 9

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

Question 10

Step 3: Article 6 (1)

Independent and impartial tribunal

Jury tampering

Answer 10

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

Question 11

Step 3: Article 6 (1)

Independent and impartial tribunal

What will happen if there is evidence of prejudice or bias in a criminal case?

Answer 11

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

Question 12

Step 3: Article 6 (1)

Independent and impartial tribunal

What will happen if there is evidence of prejudice or bias in a civil case?

Answer 12

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

Question 13

Step 3: Article 6 (1)

Public Hearing

Answer 13

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

Question 14

Step 4: Article 6 (1)

Elements of a fair trial

Answer 14

1. Access to court
2. Equality of arms
3. Attendance at court and right to participate
4. Rules of evidence
5. Presumption of evidence
6. Legal representation
7. A reasoned and final judgement

Question 15

Step 4: Article 6 (1)

Elements of a fair trial

Access to Court

Answer 15

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

Question 16

Step 4: Article 6 (1)

Elements of a fair trial

Equality of arms

Answer 16

One party in a trial shouldn’t be at any disadvantage to the other. There should be a fair balance

Steel and Morris v UK

There is no absolute right for the prosecution to disclose all available evidence to the defence in a criminal case. The state may also justify non-disclosure due to national security or public interest immunity. A special advocate will be appointed to deal with parts of the case closed to the D in cases of national security

Question 17

Step 4: Article 6 (1)

Elements of a fair trial

Equality of arms: Child defendant

Answer 17

A child defendant should be able to understand the proceedings and take part but must not be intimitated or distressed

T and V v UK

Children who are charged with criminal offences are dealt with in a Youth Court which is heard by specially trained magistrates. The procedure is less formal than an adult court and the Magistrates have a range of sentences available to them, most of which have the am of deterring the child from committing future crimes rather than punishment

Children charged with the most serious crimes are tried in the Crown Court. Despite the ECtHR stating this is in violation of Article 6, this procedure remains in place

Question 18

Step 4: Article 6 (1)

Elements of a fair trial

Attendance at court and the right to participate

Answer 18

The D has a right to attend court and participate. However, the D may be removed whilst issues of national security are disussed, and children may be unable to participate in the case due to immaturity and lack of understanding (T and V v UK)

The D has the right to attend the trial but can waive that right. The judge will then have to decide if the trial continues in the D’s absence. If it does continue, the judge must ensure the trial is as fair as possible

Question 19

Step 4: Article 6 (1)

Elements of a fair trial

Rules of evidence

Answer 19

These differ in different states, so the ECtHR decides which rules are fair

Gafgen v Germany: evidence gained through ill treatment is unfair however, if that evidence has no effect on the outcome of the case, there is no violation of Art 6

Othman (Abu Qatada) v UK: there could be a violation if there is substantial evidence to suggest the sending of a person to a country where torture is used to gain evidence

Hearsay evidence cannot be used in a criminal case but may be accepted in a civil case. Evidence obtained through entrapment, evidence illegally obtained or obtained by torture will not be admissible

Question 20

Step 4: Article 6 (1)

Elements of a fair trial

Presumption of innocence

Answer 20

The presumption that an individual is innocent until proven guilty, is specifically provided for in Art 6 (2) in realtion to criminal cases, however it has a general application in Art 6 (1) when deciding if a trial is fair

Woolmington v DPP: puts the burden of prood on the prosecution in a criminal case. The burden of proof in a civil case is on the C

The right to silence is not an absolute right as the judge can draw adverse inferences for it (Murray v UK)

An individual has the right to not be compelled to give evidence that could be self-incriminating however this is not an absolute right and the state may compel evidence

Brown v Scott: The right of self-incrimination was not a absolute right and could be limited for reasons of public safety. It didn’t undermine the right to a fair trial as other evidence would be needed to be proved as well as any admission by accused

Question 21

Step 4: Article 6 (1)

Elements of a fair trial

Legal representation

Answer 21

The presumption than an individual should have access to legal representation is specifically provided for in Article 6 (3) in relation to criminal cases however, it has a general application in Article 6 (1) when deciding if a trial is fair

There is no absolute right to legal representation. However, being unable to affford legal represetation (means test) or failing the interests of justice test (merits test) could restrict the individual’s access to a fair trial

Benham v UK: D was not eligible for legal representation in the Magistrate’s court. This was considered an Article 6 violation when he was sent to prison for non-payment of the poll tax

Question 22

Step 4: Article 6 (1)

Elements of a fair trial

A reasoned and final judgement

Answer 22

A fair criminal or civil trial should have a clear final decision at the end of the hearing. The jduge does not need to explain every reason for their judgement but must include the main issues that were taken into account in the decision-making process

Question 23

Step 5: Article 6 (2)

What presumption is provided for under Article 6 (2)

Answer 23

the presumption of innocence

Question 24

Step 5: Article 6 (2)

What area of law does Article 6 (2) apply to?

Answer 24

criminal

also in Woolmington v DPP

Question 25

Step 6: Article 6 (3)

According to Article 6 (3), what are the minimum rights of a person charged with a criminal offence

6 (3)(a)

Answer 25

to be informed promptly, in a language which they understand and in detail, of the nature and cause of the accusation against him

ie. know the case against them in a language they understand and be told promptly

Question 26

Step 6: Article 6 (3)

According to Article 6 (3), what are the minimum rights of a person charged with a criminal offence

6 (3)(b)

Answer 26

to have adequate time and facilities for the preparation of his defence

Question 27

Step 6: Article 6 (3)

According to Article 6 (3), what are the minimum rights of a person charged with a criminal offence

6 (3)(c)

Answer 27

to defend himself in person or through legal assistance of his own choosing, or if has not sufficient means to pay for legal assistnace, to be given it free when the interests of justice so require

ie. Access to Justice

Question 28

Step 6: Article 6 (3)

According to Article 6 (3), what are the minimum rights of a person charged with a criminal offence

6 (3)(d)

Answer 28

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

R v Davis: by hiding witnesses and not giving the defence the opportunity to cross examine, was held to be unfair

Question 29

Step 6: Article 6 (3)

According to Article 6 (3), what are the minimum rights of a person charged with a criminal offence

6 (3)(e)

Answer 29

to have free assistance of an interpreter if he cannot understand or speak the langauge in court

R v Ibrahim

Question 30

Step 7: Restrictions on Article 6 (3)(c)

Answer 30

In cases involving terrorists the right to legal assistance may be delayed for longer than in standard criminal cases

Ibrahim v UK: legal assistance can can be delaed for up to 48 hours in cases involving terrorists. In this time poliuce conducted ‘safety interviews’ which were authorised by senior officers and D’s had been informed of the reasons to restrict legal assistance