Article 6 Right to a fair hearing
The right to a fair trial is fundamental to the rule of law and to democracy itself.
The right applies to both criminal and civil cases, although certain specific minimum rights set out in Article 6 apply only in criminal cases.
The right 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.
The 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 hearing.
- 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 silent).
- 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.
Determination of civil rights and obligations
The 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 activities;
- some employment decisions;
- control orders;
- anti-social behaviour orders etc.
But the 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 office.
Whether 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 law.
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).
Minimum rights in criminal trials
Article 6(3) also guarantees the following minimum rights that apply in criminal trials:
- the 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;
- the right to have enough time and facilities to prepare a defence;
- the 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;
- the 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;
- the right for an accused to have the free assistance of an interpreter if he or she cannot understand the language used in court.
Case study - Terrorism Prevention and Investigation Measures (TPIMs)
In 2005 the House of Lords ruled that the practice of holding foreign terror suspects in Belmarsh prison without charge or trial was unlawful. Rather than charge and prosecute these individuals within the criminal justice system, the government brought in the unsafe and unfair Control Orders scheme.
Control Orders enabled the Home Secretary to impose an almost unlimited range of restrictions on any person they suspect of involvement in terrorism. Parliament had to vote every year to continue the control order scheme.
Almost immediately after coming to power in 2010, the Government announced that it would review the counter-terror laws and policies adopted by the former Government. As a result of that review, the Government scrapped Control Orders – but replaced them in January 2012 with Terrorism Prevention and Investigation Measures (TPIMs).
TPIMs are simply a ‘control order-lite’, replicating the worst aspects of the control order regime. These new measures are still outside of the criminal justice system – potentially punishing the innocent while the truly dangerous may remain at large in the community.