Article 6 - Evaluation Flashcards
AO1: Introduction
Article 6 is the right to a fair trial
Limited right - the state cannot interfere with the right unless it is allowed under the right itself (Art 6(1)) or the state derogates
Woolmington v DPP - ‘golden thread’ in criminal law = innocent until proven guilty and the burden of proof is on the prosecution
AO1: Article 6 (1)
Civil rights - includes the right to a fair civil trial
Criminal charge - the ECtHR will decide if an offence is criminal by looking at the nature of the offence and the penalty
Public hearing - to protect individuals from corruption and bias, the court case is held in public. Except when 6(1) allows this right to be limited, e.g. cases of national security, mental health tribunals and youth courts
Reasonable time - what is ‘reasonable’ time is based on the complexity of the case. In Beggs v UK – 10 years to get an appeal was not reasonable
Independent and impartial – the judge, Magistrate or jury should not be pressurised or biased. Evidence of jury tampering can be heard by a judge alone (s.44 CJA 2003) - as seen in R v Twomey and Others. Also, a HL judge was not impartial in the extradition case of the Chilean dictator Pinochet as he supported Amnesty International
AO1: Achieving a fair trial
Access to court - a full and accessible court structure of trial and appeal courts. Golder v UK - was not allowed to see a solicitor whilst he was in prison, so his access to court was restricted and a violation of Article 6(1)
Equality of arms - Steel and Morris v UK were sued by McDonalds for defamation but couldn’t get legal aid
Attendance in court and the right to participate - children may not understand and can’t participate – T and V v UK (11 year old killers of Jamie Bulger)
Rules of evidence - the ECtHR decide if the rules are fair because different countries have different rules
Presumption of innocence – Woolmington v DPP – the right to silence and the right to not self-incrimination
Legal representation - lack of legal aid can be a violation of Article 6 (Benham v UK)
A reasoned and final decision
AO1: Article 6 (2)
Everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law
AO1: Article 6 (3)
Everyone charged with a criminal offence has minimum rights including:
- Informed promptly of the allegations in a language he understands
- Have adequate facilities to prepare a defence
- Legal assistance
- Chance to examine witnesses
- Have a free interpreter
AO3: Limited right
Article 6 is a limited right and is therefore protected from state interference (P).
This right protects the rights of the public in both civil and criminal hearings, however, criminal hearings are more protected which is justified because a person’s liberty is at stake in a criminal case (DP).
Civil cases are however, somewhat effectively protected as they still need to be heard within a ‘reasonable’ time and have access to court, however, limits on legal funding and inequality of bargaining power was criticised by the ECtHR in Steel and Morris v UK when there was no possibility of a fair trial when the defendants were sued by McDonalds (WDP).
AO3: Use of a jury
One way the UK protects the public is the use of juries in all serious criminal cases which effectively protects the defendant as it makes hearing public and the jury should independent and impartial compared to a judge (P).
Furthermore, Jury Equity stops the jury’s decision from being influenced or changed by the judge (DP).
However, Article 6 does not specifically protect the right to jury trials as most European countries do not use them and s.44 CJA 2003 can allow a juryless trial to occur if there is evidence of jury tampering, as seen in R v Twomey (WDP).
AO3: Legal funding
Article 6(3)(c) somewhat effectively protects the public as it says that if the defendant doesn’t have the money to pay for assistance, it should be given for free (P).
However, the Government cuts to legal funding in 2012 means less people are eligible for free legal assistance in court and to get free legal assistance, defendants are subject to the ‘interests of justice’ test, and if the defendant is deemed able to proceed without a lawyer, they won’t get legal aid (DP).
This was shown in Benham v UK, the ECtHR said there was a violation of Article 6 when the defendant didn’t qualify for legal assistance at the Magistrates’ Court and was sent to prison for not paying his poll (council) tax (WDP).
AO3: Article 6 (2)
This part of Article 6 effectively protects the public as the presumption of innocence is seen as the ‘golden thread’ in the criminal law (Woolmington v DPP) in that it is one of the main forms of protection of the right to a fair trial (P).
This means that no one has to prove their innocence and the prosecution hold the burden of proof (DP).
However, if the defendant raises the defence of insanity or diminished responsibility, the burden is on the defendant. This is because it would be too big a task for the prosecution to prove sanity in every criminal case (WDP).
Conclusion
Article 6 arguably effectively protects the public as there are a lot of protocols and procedures in place to avoid bias and corruption.
The procedures in particular that protect individuals include hearings being public and being dealt with by an independent and impartial panel, including the doctrine of Jury Equity.
However, these could debatably be seen as not wholly effective as not all hearings are public, e.g. those of national security are excluded.
Also though it is a violation to not receive legal assistance, those who are not eligible for legal aid will not receive free legal assistance
