Chapter 10: ECHR Article 6 & 7 Flashcards
Introduction
Article 6 ECHR provides for the ‘right to a fair trial’. It comprises three paragraphs:
Article 6(1)
Lays down the basic overarching right to a ‘fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law’. The paragraph covers concepts such as access to justice, impartiality of the courts, and timely and fair legal process.
Article 6(2)
Contains the presumption of innocence
Article 6(3)
Provides for a set of minimum rights owed to everyone charged with a criminal offence, including the right to access legal representation.
Not just under 1 paragraph
It is worth noting that the rights and obligations that the courts have identified as falling under Article 6 do not always fall under just one paragraph. For example, the ‘right to silence’ has been
derived from the courts’ reading of article 6(1) and article 6(2) together. This is discussed below.
2 Article 6(1): Scope
Article 6(1) lays down the basic overarching right to a ‘fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law’. This is applicable where either
the applicant’s civil rights and obligations, or criminal charges against that person are being determined.
Only refers to hearings
It should be noted that article 6(1) only refers to a ‘hearing’. It may not always involve a ‘trial’ as such. The process in question must involve determination by an ‘independent and impartial
tribunal established by law’ and will not cover other types of decision processes.
Bank Mellat v HM Treasury (No 2) [2013] UKSC 39
The House of Lords concluded that article 6
was not engaged where the Treasury had made an order prohibiting anyone from participating in
business with Bank Mellat. While the order did impede the bank’s civil right to carry on its business, it did not amount, in itself, to a determination of that right by a tribunal.
2.1 Access to justice: Art 6(1)
Article 6 is arguably the most important right in the Convention because, without access to the
legal system, an individual will not be able to take the action necessary to protect their other rights. The right to a fair trial under article 6(1) thereby necessarily includes a right of access to
the courts. To be meaningful, such a right must constitute effective access to the courts, which
may encompass not only the ability to bring proceedings but also access to professional legal
advice and representation
Airey v Ireland (1979-80) 2 EHRR 305
The applicant was the wife of a violent husband who was seeking to apply to the High Court under Irish law for a legal separation. The proceedings were complex, legal aid was not available, and the applicant could not afford to pay a legal representative. The ECtHR found that the applicant had been effectively denied access to a court for the determination of her civil right to pursue legal separation and that this constituted a violation of article 6(1)
No right to free legal aid
The court stressed that their decision did not provide for a general right to (free) legal aid. What
constituted effective access to the courts would depend upon the particular facts of each case. In some cases, it might be appropriate for applicants to represent themselves, and it remained the responsibility of contracting states to adopt measures to ensure access. Legal aid was one
measure, but others might include a simplified legal procedure to reduce complexity and costs
Benham v UK [1996] 22 EHRR 293
The applicant was imprisoned for non-payment of the community charge (poll tax). He could not afford to pay for his own legal representation, he had no entitlement to (free) legal aid, and the magistrates had declined to use their discretion to
appoint a solicitor.
Denied effective access to justice
The ECtHR held that, because he could not access representation, he had been denied effective
access to justice. The ECtHR took into account the severity of the penalty at stake and the complexity of the case. The applicant faced a three-year prison term, and the court found that the relevant law was difficult to understand. There had been a violation of article 6(1), read together with the right to legal representation in article 6(3)(c)
R (Gudanaviciene and Others) v Director of Legal Aid Casework and Lord Chancellor [2014]
EWCA Civ 1622
In R (Gudanaviciene and Others) v Director of Legal Aid Casework and Lord Chancellor [2014]
EWCA Civ 1622, some of the claimants were successful in challenging refusals for a form of civil legal aid, known as exceptional case funding (ECF).
Legal Aid, Sentencing and Punishment of Offenders Act 2012
Under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, applicants relying upon
article 8 ECHR in immigration cases were no longer entitled to legal aid. Instead, they had to
apply for ‘ECF’ which was only available where a failure to provide legally aided services would
be a breach of article 6. The Lord Chancellor’s Guidance stated that ECF should only be granted in ‘rare cases’ and in very limited circumstances’ adding that the threshold for a breach of an applicant’s article 6 rights is ‘very high
Court of Appeal was critical of the Guidance
It held that there was no basis in ECHR case
law or article 6 itself, for providing such a high threshold. Instead, the ‘critical question is whether
an unrepresented litigant is able to present his case effectively and without obvious unfairness’.
This will depend on a number of circumstances, notably the difficulty of the legal issues at stake,
the capability of the litigant in person, and the volume of evidence.
2.2 Impartiality of courts: Article 6(1)
Article 6(1) provides that the determination of civil rights and obligations or criminal charges must be ‘by an independent and impartial tribunal established by law.’ The requirements for a tribunal to be independent and impartial were summarised by the ECtHR in Findlay v UK (1997) 24 EHRR 221
Is the tribunal independent
The Court recalls that in order to establish whether a tribunal can be considered as “independent”, regard must be had, inter alia, to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence […]
Question of Impartiality
As to the question of “impartiality”, there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect […]
Findlay
The ECtHR held that that the British Army’s court martial system breached article 6(1) because of the dominant and pervasive role of the ‘convening officer’ in the overall process. This role involved selection of charges, organisation of the hearing, and appointment of members of the court, as well as prosecuting and defencing officers. The ECtHR therefore concluded that the court-martial was not sufficiently independent of the convening officer’s role
McGonnell v UK (2000) 30 EHRR 289
The ECtHR held that there had been a breach of article
6(1) when the Bailiff of the island of Guernsey had participated as a judge in a planning appeal. This was because he had earlier, in an additional role, presided over the adoption by the
Guernsey legislative chamber of the development plan which had subsequently been at issue in the planning appeal.
2.3 Timely process: Article 6(1)
Article 6(1) entitles everyone to a fair and public hearing within a reasonable time. In HM Advocate v Watson, Burrows and JK [2002] UKPC D1, Lord Bingham explained the reason behind this
requirement
2.3 Timely process: Article 6(1)
The Strasbourg case law makes plain the object of the reasonable time requirement: to ensure
that accused persons do not lie under a charge for too long and that the charge is determined
[…]; to protect a defendant against excessive procedural delays and prevent him remaining too
long in a state of uncertainty about his fate […]; to avoid delays which might jeopardise the
effectiveness and credibility of the administration of justice […]
Three areas should be considered in determining the appropriate standard
He held that three areas should be considered in determining the appropriate standard: the
complexity of the case, the conduct of the defendant, and the manner in which the case has been dealt with by the authorities
Privy Council
Held that a period of 20 months between the date on which two police officers
were charged with perjury and the trial was not excessive, as it was due to the prosecuting authorities conducting a thorough investigation. However, a delay of 27 months, between the date on which a 14-year-old boy had been charged with various sexual offences and the date of his
trial, was excessive. The court clearly took into account the age of the boy concerned.
3 Fair process in criminal law
In criminal law proceedings, the fairness of an eventual trial may be affected by the whole legal process applying beforehand.
Key case: Murray (John) v UK (1996) 22 EHRR 29
In this case the Grand Chamber of the ECtHR held that article 6 may apply to the preliminary
investigation conducted by the police, as long as the suspect is eventually charged. (Article 6 will
not apply to the preliminary process if there is no charge.) In particular, alongside the general fairness requirement in article 6(1), article 6(3) may be applicable at the preliminary investigation stage where the fairness of the subsequent trial could
be prejudiced by an initial failure to comply with the specific rights in article 6(3).
Article 6(3)(c)
Which entitles a person ‘to defend himself […] through legal assistance of his own choosing’. In the case itself, the applicant had been denied access to a lawyer for the first 48 hours of his
detention following his arrest on suspicion of terrorist-related offences. As a result, he had not
been able to benefit from legal advice about the consequences of refusing to answer questions
during his police interviews
Adverse inferences
The law in Northern Ireland at that stage permitted a trial judge to draw ‘adverse inferences’ from the defendant’s refusal to answer such questions. The applicant had refused to answer any questions during his police interrogation and the judge in his subsequent trial had duly taken this refusal into account in convicting him
Paramount Importance to have a fair trial
The Grand Chamber emphasised the paramount importance to the fairness of the trial of the
accused person being able to have access to a lawyer at the initial stages of police interrogation
when national law allows adverse inferences to be drawn from the failure of that person to answer
questions during the police interrogation.
Restriction only under a good cause
Although in the course of its judgment, the Grand Chamber in Murray accepted that access to
legal advice can be restricted where there is a good cause for doing so, the court held that none
of the reasons advanced by the UK Government sufficed to justify the delay in this case. It held that there had been a violation of the right to a fair trial under article 6(1) read in
conjunction with the right to legal assistance under article 6(3)(c).
Magee v UK (2001) 31 EHRR 35
The applicant was questioned by two rotating teams of detectives for extended periods at regular intervals for more than 48 hours. He was not given
access to a lawyer and was kept in solitary confinement during breaks. During that period, he confessed to involvement in a conspiracy to bomb military personnel. The confession was taken
into account at his trial in which he was convicted.
Intimidating atmosphere
The ECtHR held that he should have been given access to a lawyer as a counterweight to the
intimidating atmosphere which was specifically devised to sap his will and make him confess to
his interrogators. There had been a violation of article 6(1) read with article 6(3)(c).
Brennan v UK (2002) 34 EHRR 18
The ECtHR found that the presence of a police officer within hearing range during the applicant’s first consultation with his solicitor infringed his right to an effective exercise of his defence rights, representing a violation of article 6(1) read in conjunction with article 6(3)(c).
It held that the presence of the police officer would have inevitably prevented
the applicant from speaking frankly to his solicitor. While access to legal advice may be subject to restrictions for good cause, there was no compelling reason why the police officer should have
been present in this instance.
4 Right to silence: Articles 6(1) and 6(2)
Article 6 does not expressly refer to a right to silence or a right against self-incrimination. Nevertheless, these rights form an important part of any fair criminal process. Accordingly, the ECtHR affirmed in Funke v France (1993) 16 EHRR 297 that the right to a fair trial under article 6(1) included the right to remain silent and the right not to incriminate oneself.
ss 34-37 Criminal Justice and Public Order Act 1994 (CJPOA).
While the right to silence has long been an integral part of the criminal justice systems in the UK,
the absolute maintenance of it has proved more controversial. Concerns have long been raised
that criminals may be able to rely on this right too easily to avoid conviction in situations in which
an innocent person would have been able to explain their conduct. Such concerns led to a change
to the law governing the right to silence, first in Northern Ireland in 1988 and then across the whole
UK
Permits courts to draw adverse inferences
This legislation permits a court to draw adverse inferences from a number of situations when
determining whether or not the accused was guilty of a criminal offence. The most notable is when an accused fails to mention, before or when they are charged, a fact or material piece of
evidence which they later rely upon in their defence. The overall effect of this is to enable a trial judge or jury to draw adverse inferences from the refusal of the accused to answer questions during police questioning or to give evidence at trial.
