- Created by: erw16
- Created on: 15-01-19 09:20
Article 6 is the right to a fair trial.
Article 6 is a limited right. It gives the absolute right to a fair hearing if a case falls under 6(1). The state cannot interfere with the right unless the limitation is allowed by the right itself or the state derogates.
6(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
Civil rights are private rights, usually in areas of civil law where money is involved.
Criminal Charge: If the state defines the offence as criminal, the ECtHR will also. The ECtHR will decide if an offence is criminal according to their definition by looking at nature of the offence and the severity of the penalty. The ECtHR have accepted that ASBOs are a civil matter under McCann v UK 1996 even though a breach of an ASBO results in a criminal sanction.
Public: Protect Individuals from secret decisions that may breach their rights and limit their ability to appeal. Trials held ‘behind closed doors’ have the illusion of corruption and goes against the notion of natural justice. Article 6(1) may allow cases involving national security to be held in private as in the case of R v Incedal and Rarmoul-Bouhadjar 2014, where the trial involved national security and was partially held in secret.
Mental Health Tribunals and Youth Courts are always held in private.
Independent and Impartial Tribunals: If there is evidence of prejudice or bias in a civil case, damages will be awarded. In a criminal case will result in a conviction being quashed or a re-trial.
Byran v UK 1995– No violation of Article 6, applicant could apply for judicial review of such a decision.
R v Bow Magistrates, ex parte Pinochet Ugarte 2000 – Judge failed to declare his membership of Amnesty International.
Under s.44 Criminal Justice Act 2003, when there is evidence of jury tampering the judge has the right to try the case without a jury. This power has only be used in R v Twomey 2009.
Fair: A fair trial is only achieved when it includes several principles.
1. Access to Court – Implied right. Limitation periods (3 years for PI, 6 for contract or property law.) Financial position restricts some people, legal aid may be available in some cases, individuals may find their access to court very limited. Golder v UK 1975.
2. Equality of Arms – One party in a trial should not be at any disadvantage to the other. Steel and Morris v UK. There is no absolute right for the prosecution to disclose all available evidence to the defence in a criminal case. The…