Round Up- Do trained lawyers have a human right to represent themselves in court?
9 April 2018
Conor Monighan brings us the latest updates in human rights law
The High Court, Court of Appeal and Supreme Court are not sitting at present (Easter Term will begin on Tuesday 10th April). Accordingly, this week’s Round Up focuses largely on the ECHR.
This week, the ECHR held that requiring defendants to have legal representation does not violate Article 6. The vote was split by nine votes to eight.
The applicant, a lawyer by training, alleged a violation of Article 6 s.3(c) of the Convention. This was on the basis of a decision by Portuguese domestic courts which (i) refused him leave to conduct his own defence in criminal proceedings against him, and (ii) required that he be represented by a lawyer.
The majority view was that a member state can adopt this mandatory requirement in order to ensure a fair trial and the proper administration of justice. This was partly because an applicant’s close connection to proceedings may prevent him from effectively defending himself. Such an argument was especially strong in this case, where the applicant had been suspended from the Bar. His previous conduct, namely swearing at a judge on two separate occasions and acting as defence counsel despite being suspended, formed reasonable grounds to consider he may have lacked the objectivity necessary under Portuguese law to conduct an effective defence. The Court also attached significant weight to the ability for judicial review of the measure concerned.
However, the Court noted the accused was given alternative ways of participating in proceedings. For example, he could make statements, submit observations, requests and could remain present for all parts of proceedings. He could also revoke any measure carried out on his behalf or request a change of counsel. In light of these factors, and the margin of appreciation granted to States, the Court rejected the claim.
The dissenting judges argued that the Court’s case law on Article 6 states its primary concern is to evaluate the overall fairness of criminal proceedings. It should also assess the particular circumstances of the case, using a wide range of criteria. The minority also emphasised that 31 out of the 35 Contracting Parties to the Convention have established the right to conduct one’s own defence in criminal proceedings as a general rule (including the UK).
In this case, the minority view was that domestic courts exceeded their margin of appreciation in securing applicants’ rights, thereby violating Article 6 ss. 1 and 3(c) of the Convention. It noted the applicant had expressly requested not to be defended by the court-appointed lawyer, that a relationship of trust between them did not exist, and that the lawyer did not endorse any of the appeals lodged by the legally trained applicant. In view of the lack of sufficient reasons provided by the State, the trial as a whole cannot be considered to have been fair.
A number of judges expressed a concern about the “paternalistic” majority view. Judge Pinto de Albuquerque was particularly spirited, describing it as:
a return to the biases of the tormented black past of Europe, those biases that categorised defendants as objects in the hands of the almighty State, which could always dictate what was in their interests, even against their own will.
In Other News….
- The UK government is thought to have paid out the largest sum ever recovered from a claim under the Human Rights Act 1998. The litigation arose from the government’s decision to bring forward cuts in subsidies to small-scale solar energy production, to a date which was before the end of the consultation period on the proposal. The Minister also took the decision prior to approval by Parliament. The government’s action was first challenged in judicial review proceedings and the Court of Appeal found the government had acted ultra vires. A human rights claim was then launched, claiming a violation of Protocol 1 Article 1 of the ECHR (the right to peaceful enjoyment of one’s possessions). The size of the settlement reached was originally confidential, but an FOI request has since revealed the amount to be £59.975m. For more information, see David Hart QC’s post on the original decision here, his follow up article here, and his piece on the Appeal here.
- Firms employing over 249 people in UK were required to publish the differences in pay between male and female staff on Wednesday. On average, women are paid 9.7% less than men. The Equality and Human Rights Commission stated they will write to around 1500 businesses that failed to meet the deadline. The Commission has the power to give unlimited fines.
- Criminal barristers have gone on strike over the new Advocates Graduated Fee Scheme (AGFS), which came into effect on April 1st. The system creates bands for legal aid funds, rather than billing by pages of evidence. The Bar Council and the Criminal Bar Association have given their support to the strike action, which they claim will further cut pay. A number of chambers will be taking part in the action, including Doughty Street, Garden Court Chambers and 25 Bedford Row. The strike is already having an effect. A murder case at the Old Bailey, R v Salum, was delayed because there were no barristers available to take on the case.
- Alison Saunders, the Director of Public Prosecutions, announced she will stand down in October. During her time at the CPS, she attracted praise for successfully prosecuting the murderers of Stephen Lawrence. However, her subsequent role at the DPP became precarious in light of disclosure failures which resulted in the collapse of several rape trials. Ms Saunders has previously stated that she didn’t believe any innocent people had been imprisoned. In addition, her decision not to prosecute Lord Janner was the first major prosecuting decision by a DPP director to be overturned by an independent QC. Saunders will go to the law firm Linklaters.
In the Courts…
- Aganikyan v. Armenia: Criminal proceedings lasting almost six years and eleven months were held to violate the requirement for hearings to be held within a “reasonable time”, under Article 6 of the ECHR. The applicant was alleged to be involved in usury, which it was claimed resulted in dire financial consequences for the injured parties. The Court reiterated that the reasonableness of the length of proceedings must be assessed in light of the circumstances of the case, and with reference to: the complexity of the case, the conduct of the applicant, and the relevant authorities. The Government argued the case was highly complex and there were reasons for the delay. The Court found that although the case was complex due to its volume and the number of witnesses involved, this did not justify the length of proceedings. The Court had previously held there was a violation in similar cases. Article 6 had been breached.
On the UKHRB
Jake Richards has written an article on the Divisional Court’s decision to quash the release of John Worboys.
- Terrorism, Policing & Human Rights: The Human Rights Lawyers’ Association, 10th April at The Law Society, London. Special guest speaker Cressida Dick, Commissioner of the Metropolitan Police.
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Is there an error here? The Portuguese case relates to Article 6 and not Article 3 (I think!).
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