Article 6

1 June 2010 by Adam Wagner

Article 6 | Right to a fair trial

Read posts on this Article

Article 6 provides:

(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. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

(3) Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him.
(b) to have adequate time and facilities for the preparation of his defence.
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

There is no directly corresponding provision in the EU Charter of Fundamental Rights. Article 20 – the right to equality before the law – is more related to ECHR Art.14, and Article 47, the right to an effective remedy and to a fair trial is based on Art. 13 ECHR which guarantees the right to an effective remedy for human rights violations. However, it has been argued before the European Court of Justice that Article 6 ECHR and Article 47 contain effectively the same fair trial rights (see David Hart’s post on this issue).

The protection of Article 6 ECHR only extends to those disputes that concern a “civil right” (as well of course to the determination of any criminal charge against an individual). The jurisprudence on what does or does not constitute a “civil right” is complex and lengthy but a general rule is that the characterisation of the matter in domestic law is not determinative – Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR 1 – and  while such civil rights could be brought into play either by direct challenge or by administrative action, it was the nature and purpose of the administrative action that determined whether its impact on private law rights was such that a legal challenge involved a determination of civil rights. In R(Begum) v Tower Hamlets London Borough Council [2003] 2 AC 430 the House of Lords was prepared to assume that a decision as to housing for a homeless person did involve a “civil right” but in the more recent case of Ali v Birmingham City Council [2010] 2 AC 39 the Supreme Court confronted that question and decided that it did not.

A parent’s rights to contact with, and custody of, a child constitute “civil rights” for the purposes of Art.6. This means that they must have a fair hearing before an independent and impartial tribunal. When a mother was refused access to her child by the local authority, and she was unable to challenge that refusal in court, there was found to be a breach of her Art. 6 rights (although the case was settled after it was declared admissible in Strasbourg: Application no. 11468/85, 15 December 1986).  A more recent case against Croatia indicated that exclusion of a mother from the adoption (X v Croatia, 17 July 2008).

It is hardly surprising that domestic courts encounter some confusion when they come to determine whether a matter involves a “civil right” or not; Strasbourg case law on the point is far from clear. In trying to determine whether a freezing order on a claimant’s assets affected his civil rights, Sedley LJ observed that the Strasbourg Court is very clear about the concept having an autonomous meaning, but “What is neither certain nor clear is what that meaning is.” (Maftah v FCO  [2011] EWCA Civ 350, and see our post on this case here)

Particular difficulties have been caused by the fast-changing Strasbourg case law on employment disputes involving public servants, which until recently have been excluded from the purview of Article 6. The Court decided in  Pellegrin v France (2001) 31 EHRR  not to allow administrative servants the guarantees of Article 6 because their employment involves important state imperatives, but defining this kind of employment is far from easy, as was demonstrated by the case of an army chaplain who sought redress for alleged unfairness; after considering the authorities Nichol J found that the claimant fell within the Pellegrin exception under the test laid down in Eskelinen v Finland (2007). See our discussion on this judgment here. 

The requirements of fairness imposed on Member States by this Article apply to civil and criminal litigation. Art.6 , taken as a whole, has been held to ensure not only a fair trial once litigation is under way but to impose an obligation on States to ensure access to justice (Golder v United Kingdom (1975) 1 EHRR 524: interference with a prisoner’s correspondence with a solicitor constituted a breach of his right of access to court under Art.6 , even though litigation was not pending). Most recent litigation has concerned the matter of costs; whilst the right of access to justice is implied in Article 6(1), the original case on costs, Airey v Ireland (1979), has not been interpreted to impose on states an obligation to provide a legal aid scheme. Legal aid constitutes one avenue to justice but there are others, such as the availability of representation under a contingent or conditional fee agreement. Legal representation is not considered indispensable in all cases. Where there are no particularly complicated points of law, the state is not compelled to provide a publicly funded lawyer (HH (Iran) v Secretary of State for the Home Department [2008] EWCA Civ 504 ). In environmental challenges, on the other hand, the right of access to (affordable) access coincides with the obligation on states imposed by the Aarhus Convention to avoid prohibitive expense where individuals or groups ask the courts to enforce environmental law. The Aarhus Convention is part of EU law therefore may be relied upon in UK courts, until such time as the UK’s departure from the EU is finalised.

The requirement that the trial be conducted by an “independent and impartial tribunal” is satisfied if an internal disciplinary appeals board consists equally of members of the relevant profession and members of the judiciary: Le Compte, Van Leuven and De Meyere v Belgium (1981)4 EHRR 1.

At the Strasbourg level the most litigated requirement in Art.6 is the obligation on States to ensure that proceedings do not exceed a “reasonable time”. The circumstances of the case may determine the importance of expedition; in AIDS cases the Court’s approach has been stricter than in other areas, since the rapid dispatch of compensation claims is essential in respect to terminally ill patients (X v France (1992)14 EHRR 483). The Court has also take a strict approach to delay in child care cases where the child may have bonded with its new carers: H v United Kingdom (1987) 10 EHRR 95.

The requirement of a public hearing relates to proceedings in courts of first and only instance. The failure to provide a public hearing will not be cured by making the appeal proceedings public where the case is not reheard on its merits: Le Compte .

If the initial hearing (eg by a regulator) does not fulfil the requirements of independence and impartiality, appeal may cure the defect: Bryan v United Kingdom (1996). In any event if the matter is essentially one of policy, the detailed requirements of Art.6 do not necessarily apply: see the House of Lords ruling in Alconbury (2001) and the line of cases preceding the House of Lords’ analysis in R(Begum) v Tower Hamlets London Borough Council .In many administrative fields, such as planning, an administrator may be decision-maker, and not “an independent..tribunal” within the meaning of Article 6(1), but the process will be Article 6(1) compliant, if an aggrieved party has a right of appeal or review from that decision before such a tribunal.

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Mutual confidentiality between intelligence services trumped by open justice requirements

25 February 2010 by Elspeth Wrigley

R(on the application of Binyam Mohamed) v Secretary of State for Foreign & Commonwealth Affairs [2010] EWCA Civ 65

The End of DOMA, Squeezing Justice and Breaching the Editors’ Code – The Human Rights Roundup

30 June 2013 by Daniel Isenberg

Welcome back to the UK Human Rights Roundup, your regular  LS Lowry matchstick  panorama of human rights news and views. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here. Links compiled by Adam Wagner, post by Daniel Isenberg.

With the continuing progress of the Marriage (Same Sex Couples) Bill through Parliament, focus was turned this week to the same issue in the USA.  Meanwhile, it was extra-judicial scrutiny being meted upon Chris Grayling’s money-making proposals, and the Sun was censured by the PCC over an EU-ECtHR mix-up.

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James Robottom: The Safety of Rwanda Act, Slavery and the Common Law

6 May 2024 by Guest Contributor

The following piece was first published on the UK Constitutional Law Blog on 25 April 2024 and is reproduced here with their permission, for which the editors are grateful

This post argues that, read in the light of the common law constitutional prohibition of slavery (“POS”), s.4 should prevent all suspected and confirmed victims of slavery from being removed against their will to Rwanda without, at the least, a detailed assessment of their specific risks of re-trafficking there.

Hands off our courts’ relationship with the European Court of Human Rights – Paul Harvey

9 January 2014 by Guest Contributor

The glass foyer of the Palais de Droits de l’Homme in Strasbourg (pictured) is not to everyone’s taste.  Some find it inspiring, others – often advocates appearing for the first time – are simply too nervous to notice. Typically, Rumpole on his triumphant visit takes a much more down-to-earth approach, comparing the building to the boiler of a ship.

Whatever one makes of it, the foyer of the Court is designed to remind visitors of two things: the Court’s accessibility and its openness. That is not always apparent from the Court’s procedures or from the language it sometimes uses to express itself, but it is beyond question that the Court is open to the different legal traditions of its member States.  Most influential among those traditions must surely be the common law.

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Should more trials be held in secret? Part 2: A Special Advocate’s comment

1 December 2011 by Angus McCullough KC

This is an expanded version of a comment made on Adam Wagner’s post:  Should more trials be held in secret?

Our recent post highlights the Government’s consultation on the Justice and Security Green Paper. Having been involved as a Special Advocate in many hearings involving closed material, I am troubled about these proposals, as well as the lack of public debate that they have generated.

The main proposals in the Green Paper are based on the highly debatable assumption that existing closed material procedures (CMPs as per the acronym adopted) have been shown to operate fairly and effectively.  CMPs, were first introduced in 1997 and have escalated in their application since then.  At §2.3 of the Green Paper it is stated that:

The contexts in which CMPs are already used have proved that they are capable of delivering procedural fairness.  The effectiveness of the Special Advocate system is central to this … .

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Battle of the bus lanes: Addison Lee injuncted by High Court

3 May 2012 by Leanne Buckley-Thomson

Transport for London (TfL) v Griffin & Ors [2012] EWHC 1105 (QB) – Read Judgment

Transport for London (TfL) have succeeded in their High Court application for an injunction restraining Addison Lee Taxis from encouraging drivers to use London bus lanes. Mr Justice Eder ruled that the injunction would not breach Addison Lee Chairman John Griffin’s free expression rights.

This case is about traffic regulation orders (TROs) made by TfL dealing with the use of designated bus lanes. TfL’s policy is that private hire vehicles (PHVs – or mini-cabs in ordinary parlance) can only enter bus lanes to pick up or set down whereas taxis can use them as a through-route. The adopted definition of “taxi” means only Hackney Carriages qualify (reg. 4 of the Traffic Signs Regulations and General Directions).  Failure to comply with, or acting in contravention of, TROs is an offence under s8(1) of the Road Traffic Regulation Act 1984.

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The recent disorder: bail and sentencing – Obiter J

21 August 2011 by Guest Contributor

Much controversy has been raised by the sentencing meted out to some of those charged with offences committed during the recent disorder.  Many cases have already been sentenced either in the Magistrates’ Court.  A lesser number of cases have been dealt with by the Crown Court.  (Given the short time between committal to Crown Court and sentence, the latter would be guilty pleas).

In the Magistrates’ Courts, the majority of the cases have been dealt with by professional District Judges (Magistrates’ Courts).  The use of “lay benches” has been very much the exception.  The reason for that is not entirely clear at this time.

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Anonymity order compatible with Convention and common law – Supreme Court

9 May 2014 by Rosalind English

A (Respondent) v British Broadcasting Corporation (Appellant) (Scotland)  [2014] UKSC 25 – read judgment

This appeal related to whether the Scottish Courts took the correct approach to prohibit the publication of a name or other matter in connection with court proceedings under section 11 of the Contempt of Court Act 1981, and whether the court’s discretion was properly exercised in this case.  The Supreme Court unanimously dismissed the appeal by the BBC.

The following report is based on the Supreme Court’s Press Summary.   References in square brackets are to paragraphs in the judgment.

Background 

A, a foreign national, arrived in the UK in 1991. He was later granted indefinite leave to remain, but in 1996 was sentenced to four years’ imprisonment for sexual offences against a child. In 1998, he was served by the Home Secretary with a notice to make a deportation order [4]. He appealed against the decision and protracted proceedings followed in which A cited risks due to his status as a known sex offender of death or ill-treatment (contrary to Articles 2 and 3 of the European Convention on Human Rights  should he be deported. A’s identity was withheld in the proceedings from 2001 onwards [5]-[9].
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Court of Appeal laments systemic failures in family justice

9 September 2013 by Rosalind English

Re A (a child) [2013] EWCA Civ 1104 – read judgment

Appellate judges are obliged to review systemic failings in the family justice system as a whole, not just the merits of the trial judge’s determination, particularly where the process has deprived the parties of their rights to procedural fairness under Articles 6 and 8.  Whilst this particular appeal was  not “a fitting vehicle to enable a root and branch appraisal of the procedural history of this protracted case”,  McFarlane LJ has taken the opportunity to give full voice to the “profound feeling of failure” felt by Court on the part of the Family Justice system.

The law does its best in the triangulation of estranged parents and their children . But sometimes it does nothing more than concentrate an already toxic mixture of manipulation, mistrust and deception that seeps over the fragile construct of family life that has fallen apart at the start.  As anyone involved with the family justice system would readily agree, the conduct of human relationships, particularly following the breakdown in the relationship between the parents of a child, are not readily conducive to organisation and dictat by court order; nor are they the responsibility of the courts or the judges.  Nevertheless, as the Court of Appeal points out,  “substantive” resources have been made available to courts and judges to discharge their responsibility in matters relating to children in a manner which affords paramount consideration to the welfare of those children “and to do so in a manner, within the limits of the court’s powers, which is likely to be effective as opposed to ineffective.”  
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In the name of God: ultra-orthodox Jewish education not in children’s best interest, rules Court of Appeal.

11 October 2012 by Karwan Eskerie

G (Children), Re [2012] EWCA Civ 1233 – read judgment

If you received this article by email, it will have been attributed to Adam Wagner. It is in fact by Karwan Eskerie – apologies

What is happiness? If you thought this most philosophical inquiry was beyond the remit of the judicial system then you should read this case. 

In Re G (Children), the estranged parents of five children disagreed over their education.  Both parents belonged to the Chassidic or Chareidi community of ultra orthodox Jews.  However, whilst the father wanted the children to attend ultra-orthodox schools which were unisex and where all the children complied with strict Chareidi practices, the mother preferred coeducational ‘Modern Orthodox’ schools where boys did not wear religious clothing and peyos (long hair at the sides), and children came from more liberal homes where for instance, television was taken for granted.

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Successful A1PI claim in construction adjudication – lessons for us all

16 April 2013 by David Hart KC

Whyte and Mackay Ltd v. Blyth & Blyth Consulting Engineers Ltd, Outer House, Court of Session, Lord Malcolm, 9 April 2013 read judgment

One to read if you have any interest in summary justice in civil litigation – not simply for those who can tell their rebar from their roof tile.

The first instance Scottish judge refused to order enforcement of a £3m adjudication – a form of interim justice -in complex professional negligence proceedings, because to do so would have involved a violation of A1P1 – the right to property. But he ruled against a similar submission based on Article 6 – the right to a fair trial.

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No anonymity for bankers involved in Libor scandal

30 January 2013 by Rosalind English

Graiseley Properties Ltd and others (Claimants) v Barclays Bank Plc (Defendant); Various employees and ex-employees of Barclays Bank plc and Telegraph Group and others (interveners) [2013] EWHC 67 (Comm) 21 January 2013 – read judgment

The Commercial Court has resisted an application to anonymise those individuals at Barclays involved in the LIBOR scandal.

In his firm dismissal of the arguments Flaux J has confirmed the principle that anonymity orders will only be made in cases where the applicant for the order has established that it is strictly necessary for the proper administration of justice. The employees’ claim they should remain anonymous until trial failed at the first hurdle, “because they had simply not established by clear and cogent evidence, or at all, that the order they seek or any aspect of it is strictly necessary for the proper administration of justice.”
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A Ferrari with its doors locked shut

12 January 2011 by Rosalind English

C-115/09 Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen eVvBezirksregierung Arnsberg Trianel Kohlekraftwerk Lünen (intervening) – read judgment

The German system of judicial review involves a “careful and detailed” scrutiny of administrative decisions. However, admissibility criteria are such that few are able to access this system, particularly groups bringing actions alleging environmental harm.

At the centre of this case is the highly topical matter,  relevant to one of the discussion threads on this site, of the trend towards a new system of environmental justice, heralded by Aarhus and the accompanying EU Directives, where national courts to are required to recognise claims brought by pressure groups alleging infringement of environmental provisions, even where there is no individual legal interest involved. The  Trianel case puts into sharp focus the debate as to whether the environment should be protected not as an expression of an individual’s interest, but as a general public interest, enforceable in the courts.
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Analysis: Supreme Court asserts its constitutional power in expenses scandal appeal

2 December 2010 by Adam Wagner

Cromwell looks on

Chaytor & Ors, R v (Rev 2) [2010] UKSC 52 (01 December 2010) – Read judgment

Updated | The Supreme Court has dismissed the appeal of four men accused of fiddling their Parliamentary expenses. In doing so, it has provided a powerful statement of the limits of Parliamentary privilege against court interference, and of its own powers in our separation of powers system.

The background to the case is set out in my post on the Court of Appeal case. The basic summary is that three ex-MPs, Morley, Chaytor and Devine, and one member of the House of Lords, Lord Hanningfield, are charged with false accounting relating to their parliamentary expenses claims.

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