Article 6 - The Right to a Fair Trial

Article 6 - The Right to a Fair Trial

• Applies to civil and criminal proceedings

• Protects against abuse of state power

• No restriction except for limits on public hearings

• Can be waived

Civil rights and obligations

• Must involve a genuine dispute affecting civil rights

• Covers private civil rights like employment, personal injury, property, reputation, child custody etc

• Not covered - public admin rights (school allocations, prison association claims, taxation, immigration, voting)

Civil rights and obligations case law

• Olsson v Sweden (1992) - child custody case within Article 6

• Schuler-Zgraggen v Switzerland (1993) - gender discrimination covered

Criminal Charge

Decided using 3 criteria

1. National classification

2. Nature of offence

3. Whether it leads to punishment

Criminal Charge case law

• Engel v Netherlands (1976) - set out criteria for criminal charge

• R (McCann) v Manchester Crown Court (2002) - ASBOs = civil not criminal

Independent and Impartial Tribunal

• Considerations

  • How judges are appointed

  • Duration of appointment

  • Freedom from pressure

  • Appearance of independence

• Ensures separation of powers

• Judge-only trials under CJA 2003 allowed if jury tampering likely

Independent and Impartial Tribunal case law

• Findlay v UK (1997) - lack of independence is breach

• Scanfuture UK v SS for Trade and Industry (2001) - impartiality assessed

• R v Bow Street Magistrates ex parte Pinochet (No. 2) (2000) - bias due to Lord Amnesty link

• R v Twomey (2011) - first judge-only criminal trial for jury tampering risk

Delays

• Justice delayed is justice denied

• Courts must act within a reasonable time

• Factors considered

  • Case complexity

  • Applicant’s conduct

  • State’s conduct

• May lead to sentence reduction or compensation

Delay case law

• Konig v FRG (1978) - established factors

• Milasi v Italy (1987) - 9 years 7 months delay unreasonable

• Robins v UK (1997) - 4 year delay unreasonable.

• Rinngeisen v Austria (1972) - 5 year delay acceptable due to complexity

Public Hearing

• Hearings should be public, but can be private to protect

  • Morals/public order/national security

  • Children/parties’ privacy.

  • Interests of justice

Public Hearing case law

• B and P v UK (2002) - private child custody hearings didn’t breach Article 6

Fairness

• Fairness includes

  • Access to court

  • Attendance and participation

  • Equality of arms

  • Exclusion of unfair evidence

Fairness case law

• Golder v UK (1975) - denial of solicitor = violation

• T and V v UK (2000) - children tried in adult court = violation

• R v Mushtaq (2005) and  A v SS for the Home Department (2005) - torture/oppression evidence = violation

Reasons for Decision

• Courts must provide reasons showing issues were considered

• Not required to address every argument

• Once appeals end - case final

• Brumarescu v Romania (1999) - reopening final judgment breached Article 6

Equality of Arms

• Both parties must have

  • Equal access to evidence

  • Equal opportunity to participate

  • Equal treatment of witnesses

• Disclosure is vital to fairness

  • May be restricted for national security

  • Special advocates may represent defendants in secret hearings

Steel and Morris v UK (2005)

McLibel case - lack of legal aid and imbalance - breach of Article 6/10

Disclosure and National Security

• Judges can review sensitive evidence ex parte (without D)

• Government may request secret trials to protect information

Article 6.2 - Presumption of Innocence

• Ds are presumed innocent

• P carries the burden of proof

• Cases

  • Woolmington v DPP (1935) - golden thread of criminal law

  • Salabiaku v France (1988) - strict liability didn’t breach Article 6

Article 6.2 - Right to Silence

• Two elements

  1. No one compelled to answer questions used to convict

  2. Courts shouldn’t draw adverse inferences from silence

• Cases

  • Saunders v UK (1997) - compelled answers later used - violation

  • Murray v UK (1996) - right to silence not absolute - no violation

  • Condron v UK (2001) - silence on legal advice - adverse inferences - violation

Article 6.3 Rights of the Defence - Right to Be Informed

Accused must be told promptly and in detail in a language they understand

Article 6.3 Rights of the Defence - Adequate Time and Facilities

Must have time, lawyer access and resources to prepare defence

Article 6.3 Rights of the Defence - Right to Legal Assistance

• Right to self defend/have a lawyer

• Free legal aid when interests of justice require

• Applies at all stages - including police interviews

• Benham v UK (1996) - lack of legal aid was a breach

• Denial of aid judged by interests of justice and means test

• Legal aid limited in civil cases

Article 6.3 Rights of the Defence - Examination of Witnesses

• Right to question witnesses - no conviction solely on untested testimony

• Cases

  • R v Davis (2008) - anonymous witnesses made trial unfair

  • R v Incedal (2014) - full secret terror trial rejected - some parts public