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We have come a long way since trial by ordeal, where the accused was subjected to a torturous or lethal task to determine their guilt or innocence, or since 18th Century trials that didn't allow the defence lawyer to address the jury. Thus, the right to a fair trial guaranteed under Article 6 of the European Convention on Human Rights (ECHR) is fundamental to the Rule of Law. The right under Article 6(1) applies where a civil right, or obligation, or criminal charge is being determined. There are additional rights for criminal trials under subsections 2 and 3 of the article. This post gives an overview of Article 6, and examines some of the cases which have helped shape this right.
Common to both criminal and civil hearings are requirements for hearings to be fair, public and brought within a reasonable period of time by an independent and impartial tribunal which has been established by law. Golder v United Kingdom established the principle under Article 6(1) that a litigant may bring a matter concerning his civil right or obligation before a court. The right, however, is not absolute; the Court in the case of Ashingdane v United Kingdom upheld a statutory provision preventing mental patients from suing their carers. The European Court of Human Rights (ECtHR) accepted that preventing harassment of staff by patients was a legitimate aim.
Whether a court or tribunal (including any jurors) is independent and impartial is a matter of appearance. In Findlay v United Kingdom, the ECtHR found a violation of Article 6(1) because the convening officer in a court martial had links to the prosecution and members of the court were subordinate in rank to that officer. This gave the appearance of a lack of independence.
Judgments should be pronounced publicly and in full, so the defendant or litigant knows whether they may have grounds for appeal, although the right to appeal is not protected under this Article. There are exceptions that allow the press or public to be excluded from all or part of the hearing in the interests of morals, public order or national security in a democratic society, or where the interests of juveniles or the protection of the private life of the parties so require, or in special circumstances where publicity would prejudice the interests of justice. Such exceptions are to be applied to the extent to which they may be necessary in whole or part and at the discretion of the court.
In criminal trials the defendants are presumed innocent until proven guilty according to law. Furthermore, they have the right to be informed promptly in detail the nature and cause of the accusation against them in a language they understand. The defendant must have adequate time and facilities to prepare a defence. He/she has the right to defend him/herself in person or through legal assistance, which may be given freely when the interests of justice require.
The defendant must have the ability to examine, or have examined on his behalf, witnesses against him and to obtain the attendance of witnesses for him under the same conditions. Interpreters must also be provided for defendants who cannot understand the language of the court. In T v United Kingdom, the right of a defendant to participate in his own trial was breached. T, an 11 year old boy accused of murder, was tried in an adult court with all the formalities and procedures that entailed. Although the court took measures to help the child understand the process, the ECtHR held that there had been a violation under Article 6(1).
Equality of arms is an important concept for both civil and criminal tribunals, particularly with the adversarial nature of trials. Inequality is often found in the resources available to one party and not the other. In the longest running trial in legal history, McDonalds Corporation v Steel & Morris - often referred to as the McLibel case - the respondents in a claim for libel were not permitted legal aid under English Law. Due to the complex nature of the issues and facts that required interpretation, the ECtHR found in Steel & Morris v United Kingdom that not providing legal aid was a violation of Article 6.
Although the right to a fair trial is guaranteed under the ECHR it is not without some restrictions. Many of these restrictions serve the Rule of Law and generally balance rights under this Article with other Convention rights, such as Article 10 (freedom of expression) and Article 2 (the right to life). It also serves to ensure the proper protections available to us all under Article 5 (the right to liberty and security) along with Article 7 (no punishment without law), which is to be explored by YRM next...