Article 6 Flashcards
What is the main premise under article 6 ECHR?
‘Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’
(The right to a fair trial)
What are the minimum rights expressed under article 6 (a-f) ?
a) To be informed promptly, in a language understood
b) to have adequate time and facilities for defence
c) to defend himself in person or through legal assistance
d) to examine or have examined witnesses against him
e) to have the free assistance of an interpreter if necessary
What is meant by ‘civil rights and obligations’ in paragraph 1 of article 6?
There must be a dispute of genuine and serious nature which directly affects the individual’s civil rights/obligations.
What protection for criminal cases is there under article 6(2) and (3)?
The word ‘determination’ in article 6(1) has been the subject of debate in terms of when a criminal case commences
Brown v Stott - B was stopped by the police on suspicion of drunk driving and was asked who had driven her car to the supermarket. No breach of article 6 and incriminating oneself is not absolute and could be restricted on the grounds of public safety.
Whether an action is a criminal charge will depend on:
- How the action is classified under UK law e.g. are the CPS involved? Are prints or samples taken? In McCann v UK (1996) anti-social behaviour orders were classed as a civil matter rather than criminal
- The nature of the offence and the severity of the possible penalty
What are the rights to access to courts?
This is one of the implied rights so can be subject to procedural restrictions
The right requires the state to have a fair and public judicial process is designed to stop the state from a person access to such a process
Golder v UK was the first ever ECtHR judgement against the UK - Golder was blocked from sending a solicitor –> The ECtHR held that this was violation of Golder’s rights to access the courts
What happened in Osman v Uk?
A teacher harassed a pupil and family, the police were informed multiple times but not before the teacher shot and killed them
–> Police used Hill v CC West yorkshire to argue immunity from suit - This blanket rule which interfered with this right was not acceptable.
What are the assumed inclusions of a fair hearing?
- Equality of arms
- The presumption of innocence
- The right to silence
- If it is felt D in a criminal case has not had a fair hearing this can make the conviction ‘unsafe’ and D can appeal against the conviction
- Pinochet case - lord Hoffman had links to amnesty international meant the case had to be reheard
What is equality of arms?
This means there must be a fair balance between the opportunities to both parties. They each have the same right to examine all witnesses and equal rights to legal representation.
What are ‘secret trials’ and special advocates?
The right to a public hearing is not absolute.
The term ‘secret trials’ describe legal proceedings in which either (i) certain elements cannot be reported by the press or (ii) some evidence is kept private from one party
Special advocate is a security-vetted lawyer who can review the secret evidence, however once seen, they may not discuss it with the person they are representing.
What does article 6(2) express?
The presumption of innocence –> although this is an express right under article 6(2) it is also an implied right under article 6(1) as there may be cases where 6(2) only applies to criminal trials and links to burden
Foye (2013) argued the burden of proof being on D for the defence of diminished responsibility was a breach of article 6 –> not the case as the prosecution already proved beyond reasonable doubt they have committed the AR and MR of murder
What does Article 6(3) express?
The rights contained in this provision are for everyone charged with a criminal offence.
Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him. (b) to have adequate time and facilities for the preparation of his defence.
These rights can be restricted e.g. there plans to introduce pre–recorded video interviews of victim of rape.
In cases of suspected terrorist offences, the right to legal assistance can be delayed for longer than in other cases
Evaluation of article 6?
- The case of Hill v CC West Yorkshire gave the police immunity from being sued in situations where their failure to catch a criminal led to harm being caused to others. This is shown as blanket immunity –> Osman V UK such as blanket immunity was held to be a breach of Article 6.
- The change of criteria for individuals being granted legal aid under LASPO, and in particular the removal of the legal aid for vast majority of civil cases, means that in reality there will not be equality of arms in many civil cases.
- The introduction of judge only trials is controversial as it removing the long-standing right to trial by one’s peers. However, this option is only used as a last resort, for example in the case: Twomey 3 trials have already been paid for and justice could only be achieved if the trial was conducted by a judge alone
What happened in Othman (Abu Qatada) v UK?
The claimant was an asylum seeker from Jordon who was arrested and detained under the Anti-terrorism, crime and security act 2001.
The UK government wanted to deport him back to deport him back to Jordan, but ECtHR held that they could not lawfully do so as there was a risk of him being tortured.
Eventually an agreement between the UK and Jordon was reached and he was deported.
