Article 6: Fair trials, contempt of court and evidence Flashcards
Rights in A6.1 for criminal cases:
(1) Fair trial
(2) Before an independent and impartial tribunal established by law
(3) Within a reasonable time
(4) Held in public (subject to exceptions)
Rights in A6.3
(1) To be told promptly and fully of the case against you
(2) To have time and facilities to prepare defence
(3) To have a lawyer, paid for by the state if necessary
(4) To call witnesses, and cross-examine prosecution witnesses
(5) To have an interpreter when needed
Engel v The Netherlands (1979–80)
What counts as a criminal charge for A6? Imposition of penalties for avoiding national service, in this case, did count, so A6 was engaged
Process for this:
1. Does the national law class it as ‘criminal’?
2. If not, is it similar to a criminal trial? E.g.:
a. Is a determination of guilt or innocence made?
b. Is there an element of punishment?
Osman v UK (1998)
Article 2: Breach can occur when authorities know of a specific, direct threat to a person, and fail to take reasonable steps to act (though this wasn’t made out here)
Article 6: Blanket immunity for the police in operational matters breaches A6
R (Anderson) v Secretary of State for the Home
Department
The Home Secretuary had the ultimate power to set a tariff (minimum term of imprisonment), on the judge’s recommendation. She set a longer tariff than the judge recommended. This breached A6.1, as this was part of the trial and needed to be done by an independent and impartial tribunal.
T v United Kingdom (2000)
Two 11-year-old boys were tried in the Crown Court. This breached A6.1 and the right to effective participation, as although some steps were taken to help the boys understand proceedings, these were insufficient in the circumstances
Note: Jamie Bulger case
What are the requirements for statutory criminal contempt of court?
(1) Proceedings are active
(2) There is a publication, which
(3) Creates a substantial risk that proceedings will be seriously prejudiced, and
(4) No defence applies
NOTE: No intention to prejudice proceedings needs to be shown - the offence is strict liability
When do criminal proceedings become “active” for the purposes of criminal contempt of court?
Usually when a person is arrested
(Or, when they’re charged, if that’s earlier)
What are the defences to criminal contempt of court?
(1) Innocent publication (e.g. not knowing proceedings are active)
(2) Reporting what’s happening in court
(3) Discussions in good faith of public affairs or matters of general public interest, if the risk of prejudice is merely incidental
When does common law criminal contempt of court apply?
When there is an intention to interfere with or prejudice the course of justice
In contempt of court, when does the defence of “innocent publication” apply?
(1) The person honestly doesn’t know proceedings are active
(2) The person has distributed material but honestly isn’t aware, having taken all reasonable care, that it contains the material in question
NOTE: Burden of proof is on defendant
A-G v English [1982]
If the risk of prejudice to legal proceedings arises incidentally from a discussion of matters of general interest, then this isn’t contempt of court
A doctor is on trial for the murder of a deformed baby
The Daily Mail publish a story condemning letting deformed children die, but do not mention the doctor by name
The Daily Mail are acquitted (on appeal)
A-G v News Group Newspapers [1987]
When a (civil) trial was 10 months away, it was held that there was no substantial risk of serious prejudice
A-G v Hislop [1991]
In contempt of court, it doesn’t matter whether a particular person is pressured or influenced by a publication… The purposes of the offence include not creating a risk of perception of such risk to other litigants in other cases
Private Eye publish articles defaming the wife of the Yorkshire Ripper, trying to pressure her into dropping her case
It doesn’t matter, therefore, whether she is influenced, or whether the jury were - it’s about the risk of such prejudice
How does PACE 1984 define a “confession”?
s82(1): “Any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not, and whether made in words or otherwise”
