Article 6

Question 1

What right does article 6 protect?

Answer 1

Right to an independent and impartial judge/tribunal and a public hearing within reasonable time

Question 2

What type of right is article 6?

Answer 2

Limited (only restriction is conditions under which a trial may be held in private)

Question 3

Does article 6 consider procedural or substantive fairness and why?

Answer 3

• Procedural fairness
• Substantive decisions may still be unfair due to miscarriages of justice which cannot be avoided

Question 4

What does Art 6(1) state?

Answer 4

In determination of civil rights or in obligation of any criminal charge, everyone is entitled to a fair and public hearing, in reasonable time, by an independent and impartial tribunal, established by law

Question 5

What rights are covered under Art 6(1)?
(HINT* acc, equ, self, rig, pub, indep, free)

Answer 5

• Access to Ct (Brumarescu v Romania, Abu Quatada v UK)
• Equality of arms (legal rep = Steel + Morris v UK)
• Privilege of self-incrimination (Brown v Scott)
• Tried in right Ct (T+V v UK)
• Public judgement
• Independent + impartial tribunal (Pinochet)
• Free legal advice (Golder v UK) - may be postponed in terrorism cases (Ibrahim, Murray)

Question 6

What are the exceptions to the right to a public judgement?

Answer 6

In the interest of:
- Morals
- Public order
- National security
- Protecting youth
- Protecting Art 8
- Where publicity would prejudice justice (B+P v UK)

Question 7

What is Art 6(2)?

Answer 7

Presumption of innocence (Woolmington)

Question 8

What are the 5 minimum rights under Art 6(3)?

Answer 8

• a) To be told promptly of accusation (in understood language)
• b) To have time/facilities to prepare a defence
• c) To defend through chosen legal assistance
• d) To examine witnesses against them in Ct
• e) Free legal representation if needed

Question 9

Evaluate Article 6

Answer 9

• Equality of arms = issues with access to justice, budget cuts, stricter means testing, unappealing alternatives (CFA’s), LASPO 2012
• Jury equity conflicts transparent justice (Twomey)
• Proposed jury free trials = unfair (though would save time/money and protect vulnerable)
• Most breached right in the UK
• Terrorism = human rights apply to all but balanced against rights of society, denied access to solicitor, TPIM’s, utilitarian approach
• Adverse inference = ECtHR critical, conflicts privilege of self-incrimination
• Reasonable time = breach due to backlog
• Anonymous witnesses = not open justice (Davis) however protects young and vulnerable
• Disclosure = problems due to imbalance (P has greater power and resources)