article 6 eval Flashcards
evaluation points (5)
Violations of this are the highest of all right
Access to Justice and Legal Funding
Use of a Jury
Secret Trials and Special Advocates (Terrorism cases)
Evidence
Violations of this are the highest of all right dev
11, 543 violations between 1959-2019 (just over 5,000 for lack of a fair trial and the rest for unreasonable delays)
Italy had the most with 1,197, Turkey second with 932. UK had 93 violations for breach of fair trial and an additional 30 for delays
Violations of this are the highest of all right extra
Shows how important it is that this right exists and that it can be challenged in the ECtHR to ensure protections for citizens in all nations
Violations of this are the highest of all right extra point
Also despite the UK having very thorough procedures under PACE and other laws, breaches still exist
Access to Justice and Legal Funding dev
This is a big issue here – as without legal funding some people cannot go to trial at all, regardless of whether it is fair or not (especially in civil law)
Article 6(3)(c) provides for necessary legal aid in criminal cases
S.58 PACE gives right to legal advice upon arrest and at initial hearings
However they still have to pass the interests of justice test (Hammerton v UK – risk of prison) and the means test = some won’t get representation
Leads to increase in self-representation (may be found guilty when had workable defence – Benham v UK)
Access to Justice and Legal Funding extra
However after LASPO 2012 civil funding was cut drastically (£279m)
This created “legal aid deserts” where some areas of the country had no solicitors offering legal aid as it was not economically viable
This effectively removed access to justice for a large number of civil cases
Access to Justice and Legal Funding extra point
‘No win, no fee’ agreements attempted to deal with this – but these have issues (success fees, not always available unless case looks likely to succeed)
Can be a big issue where a lot of civil cases involve individuals against powerful/rich corporations – as seen in Steel & Morris v UK
Use of a Jury dev
Article 6(1) requires trial within an impartial and independent court
In the UK for serious criminal trials in the Crown Court this will include use of a jury
This helps to achieve fairness as it involves the public, and a jury should on balance be more impartial and independent at making decisions that judges
There are also cases which show jury equity being used to come to a decision that may be technically and legally incorrect, but which is morally right (Ponting’s case / R v Kronlid)
Use of a Jury extra
However as most European countries do not use juries, there is nothing in article 6 which specifically requires a jury decision
This means that it is possible for some trials in the UK to take place without a jury
Under s.44 Criminal Justice Act 2003 this can happen if there is a change of jury being tampered with or ‘nobbled’ – in which case the judge will make the decision if D is guilty or not
Use of a Jury extra point
This is used very rarely, but does show how in some circumstances a long established principle of ‘trial by your peers’ can be removed, without any breach of article 6 (so these need to stay rare)
On other hand, a judge has more expertise than a jury & will deal with case faster at cheaper cost
Secret Trials and Special Advocates (Terrorism cases) dev
Trials should be open to the public to ensure scrutiny and make sure procedures are being followed
However some trials are being held in secret – usually for national security reasons
R v Incedal – article 6(1) public hearing waived at trial as issue involved terrorism and concerns over discussion of evidence becoming public due to national security concerns. Court of Appeal ruled not whole trial could be in secret – some elements had to be public such as the defendant’s names – but some parts were able to remain secret
Secret Trials and Special Advocates (Terrorism cases) extra
Also in cases involving terrorism there may be Special Advocates used
When not all evidence can be disclosed for national security reasons, a Special Advocate is a “middle-man” who will work with the Defendant and their lawyers to help them with the case, but cannot specifically tell them what the secret evidence is
Secret Trials and Special Advocates (Terrorism cases) extra point
Therefore secret trials or special advocates are necessary to protect the public in national security situations – but there needs to be balance to ensure fair trials remain intact
Evidence dev
Under UK law evidence procedures are protected under PACE 1984 – s.76 (confessions by oppression) and s.78 (unfair evidence)
However disclosure of evidence (police passing evidence to the defense to help in preparation for a trial) is not always as well established
Disclosure of evidence and ensuring it is used fairly is key for protecting rights of defendants under article 6
Failure to disclose evidence is one of the most common reasons for a breach of article 6
Seen in famous miscarriage of justice cases (Guildford Four / Cardiff 3) where innocent people were convicted due to failures in the evidence process
Evidence extra
Criminal Procedure and Investigations Act 1996 creates an imbalance here in favor of the police
This is made worse by the sheer volume of digital evidence (e.g. social media stories/mobile phone footage and logs) in complex modern cases)
Therefore rights might not be as well protected in this area
Evidence extra point
In addition some safeguards are needed when questioning witnesses who are vulnerable (e.g. rape survivors)
Cross examination in court can be upsetting & stressful and also leads to low conviction rate and withdrawal of complaints
Pre-recorded video evidence of V’s account of what happened will save trauma of appearing in court
