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Law - B > Human Rights - Article 6 > Flashcards

Human Rights - Article 6 Flashcards

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1
Q

DEFINITION

A

The right to a fair trial including a fair and public hearing within a reasonable time, the trial should be independent and impartial with a public pronouncement and the possibility of press restrictions (also includes the right to appeal)

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2
Q

Civil Rights and Obligations - Ex.

A

For A.6 to apply must be a dispute an issue of genuine and serious nature directly affecting civil rights/obligations eg. role of SOS in planning appeals.

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3
Q

CR & O: Restrictions

A

Article doesn’t include claim to be educated at certain school or claim by prisoners to associate with other prisoners and issues/proceedings with foreigners/deportation

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4
Q

Criminal Charge: Ex. and case

A

In addition to protection to (6)(1)(2)(3), also includes the sentencing of offenders.
- Brown v Scott: Right of self-incrimination wasn’t an absolute right, could be limited like public safety.

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5
Q

CC: Ex. considered

A

Following considered if criminal:
1. Domestic classification of action (eg. CPS)
- Anti-social behaviour classed as civil not criminal (McCann v UK)
2. Nature of offence
3. Severity of possible penalty - fine, jail etc.

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6
Q

Fair hearing: Access to court Ex.

A
  • IMPLIED right state may impose some procedural restrictions.
  • Right is to check on state use of arbitrary power, state has to be fair and public, judicial processes & forbids state to deny access to process for deciding civil right. (For everyone).
  • No right to appeal against original decision.
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7
Q

ATC: Restrictions + Case

A
  • Limitation periods can be legitimately exposed when an action can be brought.
  • Permissible for court to impose restriction on who can bring a claim such as with vexatious litigants, imposing civil restraint/leave of court before claim issued.
  • Osman v UK
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8
Q

Fair Hearing: Equality of arms Ex.

A
  • Fair balance between parties.
  • Requires fair/public trial, judicial process. Available to everyone, doesn’t give right to appeal against decision.

(Steel and Morris v UK - Complexity and different levels of legal support breached A.6)

  • Not absolute right for prosecution to share all evidence.
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9
Q

Equality of Arms: Restrictions

A
  • Permissible for state to have justified reasons on grounds of natural security/public interest for not disclosing material.
  • Some cases permissible for special advocate to be appointed to rep. D. (Children, humiliaition/distress)
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10
Q

Fair Hearing: Presumption of innocent Ex.

A
  • Express right under A.6(2), only implied A(1) but may be important where A.6(2) doesn’t apply such as making of confiscation order.
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11
Q

POI: Restrictions Payment

A

Paying: Offender must pass two tests to claim financial aid. (Interest of justice and the means test.) Accused right of choice is also limited as those offering service have to be apart of a panel.

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12
Q

POI: Restrictions Payment

A

Special Advocates:
1. Once have sight of secret material cannot take instructions from persons representing.

  1. They work alone and lack resources of an ordinary legal team for purpose of conducting a full defence in secret.
  2. No power to call witnesses.
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13
Q

Fair Hearing: Self-Incrimination Ex.

A
  • Right implied in A.6, based on presumption of innocence in A.6(2) & right to fair trial in A.6(1).
  • Interference justified if it pursues a legitimate aim.

(Obtaining confession based on oppression/compulsion breaches A.6)

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14
Q

Fair Hearing: Representation Ex.

A
  • No absolute right to legal rep. in civil/crim. cases
  • Hammerton v UK decided that litigant in person who was liable to be sent to prison for contempt of court
    -entitled to legal rep. if it was necessary at public expense.
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15
Q

Representation Restrictions

A
  • Right covers right to claim financial aid for lawyer in crim. Two tests, inj./means
  • The accused right of choice is limited and in civil financial much more restricted, virtually non-existent.
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16
Q

Fair hearing: Evidence Ex. + case

A

(S.76 Police & Criminal evidence act ‘84) :
- Court has power to exclude evidence which they consider would have adverse effect.

  • Judge has discretion whether to allow the case continue in absence of D.
  • Jury must be directed that absence isn’t an admission of guilt and adds nothing to prosecution case.
    (Civil cases, one of the parties can’t be present no fault of their own, adjournment ordered)

(AG Ref. No.3 of 2000 - 2001)

17
Q

Fair Hearing: Reasons for Decision Ex. + case

A
  • Final judgment of court must contain reasons that show main issues in case have been taken into account.
  • No need to give reasons for every part print on why one piece of evidence preferred.
  • Appeal court must be able to take into account & how judge reached decision.

(Brumarescu v Romania)

18
Q

Public v Private Ex.

A
  • Not absolute right as some cases (eg. of national security) are private. Certain hearings such as mental health tribunal in private.
  • Main reason for public is public confidence in administration or justice by seeing it carried out impartially.
19
Q

Independent & Impartial tribunal Ex.

A
  • Both crim/civ. A.6(1) requires hearing takes place before independent/impartial tribunal. Doesn’t happen in civil, damages may be awarded. Criminal, any conviction quashed, retrial may be ordered.
20
Q

I & I Tribunal Ex. Continued

A
  • Specific reasons for partiality: Judge has personal interest/knows participants.
  • For jury any pre-trial prejudiciary material published A.6(1) requires tribunal to be established by law, means in serious cases judge qualified
21
Q

Public v Private ex. continued

A
  • Both should be heard within reasonable times.
    • In criminal reason why
      early: witness memory,
      presentation of evidence,
      preventing state of
      uncertainty, maintenance
      of public confidence.
  • If delay court may order early hearing/release in bail if accused in custody.
22
Q

I & I Tribunal Restrictions and case

A
  • Criminal justice act 2003 allows judge-only crim. trials where serious risk of jury tampering. (R v Twomey)
23
Q

A.6(2) Presumption of innocence only applies to criminal + case

A

DPP v Woolmington set out precedent:
1. The prosecution must prove the case.

  1. This rule applies to all criminal cases.
  2. The rule applies in all courts that try criminal cases (Magistrates’ & Crown).
  3. Guilt must be proves beyond reasonable doubt.
  4. A reasonable doubt can be raised by evidence from either the prosecution or defence.
24
Q

Salabaiku v France

A

Not an absolute right and states can waive this in
relation to specific strict-liability offences.

25
Q

A.6(3) 1-2

A

Clause 3 sets out minimum rights for anyone charged with a criminal offence:

  1. To be informed of the accusation promptly (and in a language the accused understands)
  2. To have adequate time and facilities to prepare a defence (including access to a legal professional, obtain
    expert evidence, and to call witnesses)
26
Q

A.6(3) 3

A
  1. To have legal assistance (providing own defence, legal counsel of their choosing or, if unaffordable, to have
    legal counsel provided free of charge. Legal assistance available at all stages of the investigation [any
    evidence gained when a defendant is denied legal assistance may be excluded as a result of PACE 1984], and
    the right to representation is not absolute and can be denied in some civil cases)
27
Q

A.6(3) 4-5

A
  1. To examine witnesses (the defence has the right to question and challenge witnesses at some stage of legal
    proceedings)
  2. To have a free interpreter if they cannot understand or speak the language used in court.
28
Q

A.6(3) Restrictions Legal Assistance

A
  • Terrorist cases, they right to legal assistance can be waived for an extended period of time
    compared to other criminal cases
    (Ibrahim v UK)
    (Abdurahman v UK)
  • Further, a defendant who cannot afford their own representation and is provided representation
    by the state cannot choose their own representation.
    (Re An App. by Maguire for
    judicial review)
29
Q

A.6(3) Res. Witness case

A

R v Davis

  • The House of Lords ruled that the combination of measures impaired the
    defence in its attempt to cross-examine the witnesses which rendered the trial unfair.

Law - B (5 decks)

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