applies to both criminal and civil cases, although certain specific minimum
rights set out in Article 6 apply only in criminal cases.
to a fair trial is absolute and cannot be limited. It requires a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law. The procedural requirements of a fair
hearing might differ according to the circumstances of the accused.
right to a fair hearing, which applies to any criminal charge as well as to the
determination of civil rights and obligations, contains a number of requirements
- There must be real and
effective access to a court (although there are limited exceptions in the
case of vexatious litigants, minors, prisoners etc). To be real and effective this may
require access to legal aid.
- There must be a hearing before
an independent and impartial court or tribunal established by law
(including unbiased jurors).
- The hearing must be held within
a reasonable time. What is
reasonable depends on the complexity of the case, its importance, the
behaviour of both the applicant and competent authorities, and the length
of time between the conduct in question (i.e. when the offence was
committed or contract breached etc) and when the trial takes place.
- The applicant must have a real
opportunity to present his or her case or challenge the case against
them. This will require
access to an opponent’s submissions, procedural equality and generally
requires access to evidence relied on by the other party and an oral
- The court of tribunal must give
reasons for its judgment.
- There must be equality of arms
between the parties, so, for example, the defence has the same right to
examine witnesses against them as the prosecution has and both parties
have the right to legal representation etc.
- In criminal cases, there is a
right to silence and a privilege against self-incrimination (although it
may be possible to draw adverse inferences from suspects remaining
- An accused person must have the
right to effective participation in their criminal trial. Except for strictly limited
exceptions, an accused is entitled to be physically present at his or her
hearing to give evidence in person and be legally represented.
- The hearing and judgment must
be made public. Hearings can,
however, be held in private where:
- it can
be shown to be necessary and proportionate and in the interest of morals,
public order or national security in a democratic society, or
- it is in
the best interests of a child; or
- it is required
for the protection of the private life of the parties ; or
- it is strictly
necessary in special circumstances where publicity, in the court’s opinion,
would prejudice the interests of justice.
of civil rights and obligations
determination of a person’s civil rights and obligations applies to private
rights owed to individuals personally, and not to purely public rights owed to
society at large. So, for example,
the following areas are generally considered to be governed by the Article 6
right to a fair trial:
- property rights;
- right to practise a profession;
- family rights;
- right to compensation;
- right to engage in commercial
- some employment decisions;
- control orders;
- anti-social behaviour orders
following areas are not considered to be ‘civil’ rights and therefore do not
fall within Article 6:
- entry or removal of immigrants;
- tax obligations;
- right to stand for public
proceedings are criminal, and so governed by Article 6, depends on whether the
offence is categorised as being criminal (although this is not determinative);
the nature of the offence; and the type of penalty applicable.
Right to be
presumed innocent until proven guilty
Article 6(2) concerns the right of every person charged with
a criminal offence to be presumed innocent until proven guilty according to
Provisions which require defendants to prove elements of
their defence (reverse onus provisions) may breach this right, particularly if
a legal burden of proof is placed on the defendant (requiring them to prove
that the case against them is not true).
in criminal trials
Article 6(3) also
guarantees the following minimum rights that apply in criminal trials:
right for an accused to be promptly informed of the accusation against him
or her – this must be in a language which he or she understands and the
charge must be detailed and adequately precise;
right to have enough time and facilities to prepare a defence;
right to legal representation, including the right to either defend
oneself in person or through legal assistance chosen by the accused; for legal
aid to be provided if a person cannot afford legal representation; and when
the interests of justice require it;
right to examine witnesses against an accused and for an accused to
present witnesses for their defence – this right does not prevent
vulnerable witnesses from giving evidence in alternative ways, either
anonymously or via video-link etc., as long as the entirety of the evidence
against the accused is not presented anonymously;
right for an accused to have the free assistance of an interpreter if he
or she cannot understand the language used in court.
The control order regime enacted by the Prevention of
Terrorism Act 2005 (and still in force at the time of publication) imposes
severe restrictions, including house arrest, on anyone suspected of being
involved in terrorism-related activity.
Under the policy, the Secretary of State makes a decision as to whether
a control order should be made and the courts then consider the decision made. In many cases, control orders have been
made on the basis of closed material – where the person subject to the control
order has never been given the chance to see the case against them.
The House of Lords held in June 2009 that this
breached the right to a fair trial under Article 6. The Law Lords held that a person subject to such a
restrictive order had to be given sufficient information to know the essence of
the case against him or her. It was held that there could never be a fair trial
if the case against a person was based solely or to a decisive degree on closed
materials and where any open material consists only of general assertions. The Court held that in conducting
control order hearings judges must consider whether material needs to be
disclosed to ensure the fairness of the trial.