3B.3.2 Article 6

Question 1

Article 6

Answer 1

The right to a fair trial.

Question 2

Does Article 6 cover civil or criminal trials?

Answer 2

Both.

Question 3

What is the main aim of Article 6?

Answer 3

To protect citizens against the abuse of power by state and public authorities.

• The importance of this principle is seen by the fact that it permits no restriction.

Question 4

What are the key elements of Article 6?

Answer 4

• A determination of civil right or obligation or a criminal charge
• An independent and impartial tribunal or court
• Within a reasonable period of time
• In public
• Fair

Question 5

Civil rights and obligations

Answer 5

There must be a dispute in issue of a genuine and serious nature that directly affects civil rights and obligations.

Civil rights are those which involve an “arm of the state”. E.g. Medical Negligence NHS, Education, Employment Rights, Benefits

Question 6

Criminal charge

Answer 6

Three criteria to decide whether a legal process should be regarded as a criminal charge:
1) The natural classification of the action.
2) The nature of the offense.
3) Does it lead to a punishment?

Making an anti-social behaviour order was classed as a civil matter – not criminal (McCann v UK (1966)).

Question 7

Independent and impartial tribunal

Answer 7

The ECtHR will consider several factors:
- How judges are appointed.
- For what period of time.
- Whether they are under pressure in their decision making.
- The overall ‘appearance of independence’.

The independence of the courts from any political influence is essential.

The Criminal Justice Act 2003 allows for judge-only criminal trials where there is a serious risk of jury tampering or where tampering has taken place. The first case where this was used was R v Twomey (2011).

Bias can come from the Judge or Jury - see Pinochet case.

Question 8

Pinochet case (2000)

Answer 8

Chilean dictator wanted by Spain for extradition on charges of torture. The extradition case heard by House of Lords. Lord Hoffman was involved with Amnesty International, which created a bias. The decision was set aside and a re-trial was ordered.

Question 9

Are juries biased?

Answer 9

Juries represent a narrow sector of society, even if picked at random they tend to be middle class, white professionals. Poorer, BAME and working-class people are less likely to be on the electoral roll. This could lead to class bias or racism.

Question 10

Delays

Answer 10

Justice delayed is justice denied’.
- Those on remand are a clear priority.
- Excessive delay can be remedied by a lowering or sentence or even compensation.

Konig v FRG (1978) set out the factors to be considered in cases of delay:
 The complexity of the case.
 The applicant’s conduct.
 The conduct of the state.

Question 11

Public hearing

Answer 11

The right to a public hearing is not an absolute right. There are many situations in which the press and public can be excluded:
- The protection of morals, public order or national security.
- To protect children or the privacy of the parties.
- Where it is in the interests of justice to do so.

Question 12

Fairness

Answer 12

The ECtHR has identified features of fairness:
- Access to a court.
- Attendance and participation in proceedings.
- Equality of arms.
- Exclusion of unfair evidence.

• T & V v UK (2000): Two boys were tried and convicted in an adult court for the murder of a two-year-old boy. Held: Article 6 rights were violated. Child victims, defendants or witnesses should not be treated as adults in court.

Question 13

Reasons for a decision

Answer 13

The final judgement of the court must contain reasons that show that the main issues in the case have been taken into account and decided upon. There is no need to give reasons for every point on why one piece of evidence has been preferred to another.

Once a final decision has been reached by a court, and any appeals exhausted, the case should be closed.

Question 14

Equality of arms

Answer 14

In adversarial proceedings, both parties should have equal treatment and equal rights in the trial process. This is the idea of equality of arms.

Equality of arms means that both sides should have:
- Equal access to the evidence
- Equal participation in the proceedings
- Equal treatment of witnesses
- The right to see and comment upon the evidence upon which the decision will be made.

There is also the ability to use a “McKenzie Friend” (someone who is not legally trained).

Question 15

Steel and Morris v UK (2005) – McLibel

Answer 15

McDonald’s sued the claimants for libel when they issued leaflets outside one of their restaurants detailing the environmental impact of the company. Steel and Morris were denied legal aid and had to represent themselves at first – and later with Keir Starmer working pro bono.

Some of the claims were found to be accurate and other false, but ended up being a huge PR disaster for McDonalds. However, the Ds were ordered to pay £60,000 in compensatory damages.

At the ECtHR, the court held the trial was biased due to the comparative lack of resources. It also found that the laws relating to libel were ‘complex and oppressive’. The UK had violated both Article 6 and Article 10.

This case prompted LASPO 2012, which changed the law on Legal Aid. It stripped down legal aid but did provide cover for some exceptional cases. However, there is no definition on what is “exceptional”.

Question 16

Disclosure and national security

Answer 16

If a judge decides to authorise disclosure of the evidence, particularly where the trial has a national security aspect, then the government may try to hold the whole trial in secret to prevent the information coming to light.

Question 17

Innocent until proven guilty

Answer 17

Articles 6(2) and 6(3) give extra protection in criminal trials.

The presumption of innocence is an essential element of a fair trial.

• DPP v Woolmington: It is not for the defendant to prove their innocence.

Question 18

Article 6(2): The right to silence

Answer 18

There are two elements to this right:
1) The accused should not be compelled to answer questions, on pain of punishment, if the answers are used to convict.

2) A court should not draw adverse interferences from an accused’s refusal to answer questions, either during police interview or at trial.

Case: Saunders v UK and Brown v Stott

Question 19

Saunders v UK (1997)

Answer 19

Saunders was required by government inspectors to answer questions during an investigation. A failure to answer them would have led to contempt of court proceedings. ECtHR held this was a violation of Article 6.

Question 20

Brown v Stott (2001)

Answer 20

D admitted she was drunk driving, and this admission was used in court. She argued that she had the right not to self-incriminate herself and this was a violation of Article 6. Held: Self-incrimination is not an absolute right, instead it is balanced based on public policy and social concern.

Question 21

Adverse inferences and the right to silence:

Answer 21

Since 1994 and the passage of the Criminal Justice and Public Order Act (CJPOA), there have been restrictions on the right to silence.

Case: Murray v UK and Condron v UK

Question 22

Murray v UK

Answer 22

Murray was questioned by police after being arrested at a house used by the IRA to hold an informer captive. He remained silent and was convicted of aiding and abetting the false imprisonment. The judge had drawn adverse inferences from his silence. The ECtHR held there was no violation. This case showed that the right to silence is not absolute.

Question 23

Condron v UK

Answer 23

The two Ds were heroin addicts had remained silent during interviews on the advice of their solicitor. The judge allowed the jury to draw an adverse interference from their silence. This was held to be a violation.

Question 24

Article 6(3): The rights of the defence

Answer 24

Article 6(3) contains several specified rights. These are the minimum rights for everyone charged with a criminal offence:

• 6(3)(a): The right to be informed of the accusation promptly, in a language the accused understands, and, in detail, the nature of the accusation.
• 6(3)(b): To have adequate time and facilities to prepare a defence. This may include access to a lawyer, especially if detained before trial, to obtain expert evidence and to call witnesses.
• 6(3)(c): The right to defence oneself in person or through legal assistance of his/her own choosing or, if he/she has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require. It is possible for the accused to waive his/her right to legal advice.

Question 25

Right to legal representation

Answer 25

The right to legal representation applies to every stage of the investigation, including interviews at the police station.
If the accused is denied representation, any evidence obtained may be excluded – s78 PACE 1984.

The right to representation is not absolute and in civil cases, the denial of legal aid may be reasonable. In criminal cases, especially where a custodial sentence is likely, the denial of legal aid is likely to be a breach of the Article.

• Case: Bentham

Question 26

Bentham v UK (1996)

Answer 26

D was imprisoned for not paying the poll tax. ECtHR held that his rights under Article 6 had been violated because he had not been able to get representation by a solicitor under legal aid.

Held: Legal aid, as well as representation, is necessary where liberty is at stake.

Question 27

Paying for legal representation

Answer 27

Normally, an accused will have complete freedom to have the lawyer of their choice to represent them in court. This right will cover the right to claim financial aid to pay for the representation in a criminal case if the alleged offender cannot afford to pay the legal fees.

However, in England this right is restricted for the alleged offender to pass two tests to claim financial aid – the interests of justice test and a means test. Unless the alleged offender passes both tests, financial aid will not be available.

Question 28

Examination of witnesses

Answer 28

English law has required witnesses to give evidence in court in the presence of the accused, and no conviction should be based on the testimony of anonymous witnesses. A witness can give evidence by television link or video recording as long as the defence has the ability to question and challenge the witness at some stage.

There will be a violation of Article 6 if a case is decided solely or decisively on evidence the defendant cannot test.

Case: R v Davis (2008)

Question 29

R v Davis (2008)

Answer 29

Seven witnesses said they would be in fear for their lives if it was known that they gave evidence against the accused. Several methods were used to protect their identities including pseudonyms, withholding personal details, distorted voices and giving evidence from behind a screen.

Held: the combination of measures hampered the defence to the extent that it rendered the trial unfair, especially as it impaired the ability of defence lawyers to cross-examine the witness.

Question 30

Right to be heard

Answer 30

Stansbury v Datapulse: Tribunal member drunk and fell asleep during an oral hearing. This was not a fair hearing.

Question 31

Is access to a court guarenteed?

Answer 31

No - there are a number of reasons why it is not guaranteed, including vexatious litigations and those with legal immunity.

• Legal aid being removed means that fewer people have access to the courts.

Critique: Word “everyone” doesn’t include everyone…

Question 32

Osman v UK (2000)

Answer 32

The police were sued for failure to protect a family from harassment. The police argued they had immunity from being sued for negligence. The court agreed that there was violation and no blanket immunity. Hill is still precedent for the concept of ‘fair, just and reasonable to impose duty’ but the legal principle here is that police aren’t immune from a case for failure to protect/warn. The case must be heard and then court should decide if fair, just and reasonable. Police now issue ‘Osman warnings’.