Article 6: Right to a fair trial

Article 6: Right to a fair trial

1. and the presumption of innocence

   • art 6(2)
   • R (Wright and Others) v SOS Health

2. only applicable once been charged

3. access to justice

   • Airey v Ireland
     • wife of violent husband could not afford legal costs andd so could not access 'effective' access to justice - violated her art 6(1) right
       • effective access to justice does not translate to general free legal aid
   • Benham v UK
     • where deprivation of liberty at stake / complex legal area there is a higher need to access to justice
       • C could not afford legal rep on no income
         • denying him access to legal rep violated 6(1) when read with 6(3)(c) (right to legal rep)
   • Gudanaviciene and Others
     • 'exceptional case funding' threshold violated art 6(1)

4. impartiality of courts

   • independent impartial tribunal established by law
     • art 6(1)
   • Findlay v UK
     • British Army's court martial system violated art 6 as not sufficiently independant
     • and other cases resulted in enactment of Armed Forces Act 2006
       • unified court martial system for all force with civillian judges of secure tenure
   • McGonnell v UK
     • Bailiff of Guernsey had questionable impartiality re judge in planning appeal due to previous involvement with the development plan

5. timely process

   • 'within a reasonable time'
     • 6(1)
   • HM Advocate v Watson, Burrows and JK
     • reasonable time is determined by complexity of case, conduct of d and manner in which case is dealt with
     • 20 months for 2 officers charged with perjury was not excessive due to investigations
     • 27month for 14 yr old boy charged with sexual offences was too long
   • to prevent lieing under charge too long, to protect d against excessive delays and state of uncertainty re fate
   • delays may jeopardise effectiveness and credibility of admin of justice

6. fair legal process

   • in criminal law, fairness oftrial may be affected by whole legal process pre trial eg police questioning
   • Murray (John) v UK
     • art 6 may apply to prelim investigation by police before charge
     • art 6(3) may be applicable where fairness of the trial would be prejudiced by initial failure to comply with its provisions
       • incl art 6(3)(c) 'to defend himself...'
     • denied access to lawyre for 48 hours and had not been advised on consequences of refusing to answer police questions (adverse inferences)
       • violation of 6(1) read with 6(3)(c)
   • Magee v UK
     • questioned intensely for 48 hours + without access to lawyer resulting in confession
       • should have had access to lawyer to counter intimidating atmosphere
       • violated 6(1) when read with 6(3)(c)
   • Brennan v UK
     • police officer in earshot during 1st consultation with solicitor without compelling reason
       • violation of 6(1) when read with 6(3)(c)
   • UK legislation
     • s58 PACE 1984
       • lawful justifications for delaying access to solicitor
     • sch 8 TA 2000

7. right to silence

   • Funke v France
     • right to fair trial includes right to remain silent and right to not incriminate oneself
   • Murray(John) v UK
     • right is not absolute (ECtHR)
       • silence and refusal to give explanation or evidence enabled judge to make inferences
         • no violation of art 6 re silence
     • in house where IRA interrogating police informer
   • Condron v UK
     • 2 heroin addicts withdrawing during police interview advised by solicitor to not answer qs as not fit to do so
       • judge wrongly advised jury to make inferences from this despite reasons for silence being accepted
         • violation of 6(1) and 6(2)
   • Saunders v UK
     • evidence obtained under legal compulsion is in violation
       • also applies to coercion or oppression
     • suspicion of unlawfully inflating share prices during takeover.
     • compelled to answer qs under s426 Companies Act otherwise contempt of court
       • use of these interviews in his trial violated 6(1) as contained admissions which incriminated him

8. admissibility of evidence

   • statutory restrictions can violate art 6(1) if they undermine fairness of the trial
   • R v A (CSH)
     • s41(3)(c) Youth Justice and Criminal Evidence Act 1999 violated art 6(1)
       • prevented c's sexual history with d being cross examined
         • evidence should not be excluded if it was so relevent to issue of consent that not excluding it, the fairness of the trial would be brought into question
   • Al-Khawaja and Tahery v UK
     • both applicants denied fair trial 6(1) 6(3)(d) because convictions were based solely on statements made by witnesses who could not be cross-examined
       • SC refused to follow in R v Horncastle
         • as sufficient safeguards in CJA 2003 that prevent a violation
           • balance rights / interests of C and the public
           • no violation for Al-Khawaja
           • violation for Tahery of 6(1) read with 6(3)(d) as insufficient counterbalances

9. extra-territorial application

   • no general obligation to impose art 6 standards on other states
     • but may prohibit extradition/deportation to anothre state where risk of deinial of fair trial in that state
       • applied in Othman v UK
         • HS to deport c to Jordan where evidence secured through torture would likely be used against him
           • Mutual Legal Assistance Treaty 2013
             • Jordan provided legal guarantees and safeguards resulting Othman voluntarily going to Jordan

10. closed evidence procedures

    • the withholding from suspects of closed evidence where it would not be in public interest to disclose that evidence
    • Re MB
      • special advocate is capable of assuaging any disadvantage re non-disclosure and so not in breach art 6(1)
      • Prevention of Terrorism Act 2005
    • A v UK (Belmarsh case)
      • suspect must be given sufficient info re allegations to give effective instructions and satisfy procedural fairness
    • SOS for HD v AF, AM and AN
      • departed from Re MB (8:1)
        • 'core irreducible minimum' of procedural fairness