Article 6

1 June 2010 by Adam Wagner

Article 6 | Right to a fair trial

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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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Misconduct in public office – ECtHR reviews foreseeability of common law offence

6 September 2021 by Joanna Curtis

On 6 July 2021 the European Court of Human Rights (ECtHR) published its judgment in the case of Norman v UK (Application no. 41387/17).  The case concerned Mr Robert Norman, an officer at Belmarsh prison, who in 2015 was convicted of misconduct in public office for passing a variety of information to a tabloid journalist in exchange for money. The ECtHR found that, in Mr Norman’s case, the offence itself did not constitute a breach of Article 7 ECHR (no punishment without law): Mr Norman’s conduct was sufficiently serious for it to have been foreseeable that it would constitute a criminal offence. The ECtHR also found that the newspaper’s disclosure of Mr Norman’s activities to the police, and his subsequent prosecution and conviction, did not breach his rights under Article 10 ECtHR (freedom of expression).

Foreign nationals who pose a threat to national security may not be deported to Algeria because of human rights – Court of Appeal

2 February 2015 by Rosalind English

BB, PP, U and others v Secretary of State for the Home Department [2015] EWCA Civ 9 (23 January 2015) – read judgment

This was an appeal by Algerian nationals who had been found by the Special Immigration and Appeals Commission (SIAC) to constitute a threat to UK national security, against deportation to Algeria.

The appellants had resisted attempts by various home secretaries to deport them via protracted litigation over several years. Despite several findings by the SIAC that their human rights would not be infringed in Algeria, doubts remained, particularly with regard to the period of up to twelve days of initial detention in Algeria, known as “garde a vue” detention, in a barracks run by the Algerian security services (DRS). The purpose of such detention was to interrogate prisoners to obtain evidence for future proceedings. SIAC had wholly accepted the evidence of an innocent British citizen (AB) detained there in a case of mistaken identity as “punitive in the extreme”, but determined that his treatment showed a lack of care over the detainee’s welfare rather than a breach of his human rights. It had conceded that the treatment of the appellants might well be no better, not least because DRS officers considered such treatment to be consistent with respect for human dignity.

The appellants submitted that, in the light of this, SIAC’s conclusion that their treatment would not violate Article 3 of the Convention was legally unsustainable; that  SIAC had erred in law in its findings that the Algerian government’s assurances were capable of independent verification; and that the SIAC had also erred in law in maintaining, without any open evidence in support, that the DRS had been present during discussions about those assurances and had subscribed to them.

The Court of Appeal upheld the appeals.
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Tory Human Rights Plans, Child Abuse Inquiry and the Burqa Ban – the Human Rights Roundup

17 July 2014 by Celia Rooney

Welcome back to the UK Human Rights Roundup, your regular tour de force of human rights news and views. The full list of links can be found here. You can find previous roundups here. Links compiled by Adam Wagner, post by Celia Rooney.

This week, the role of Lady Butler-Sloss in the forthcoming inquiry into child abuse is challenged, while the government pushes for emergency legislation to monitor phone and internet records. Meanwhile, the European Court of Human Right upholds France’s niqab ban and the Tories get closer to announcing their plans for human rights reform.

In the News
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The Round up: Begum, knife crimes, Tamil Tigers and disability discrimination

25 February 2019 by Rosalind English

In the news 

This week has been dominated by Shamima Begum. On Tuesday last week, Home Secretary Sajid Javid issued an order depriving Ms Begum of citizenship under s.40(2) of the British Nationality Act 1981. The act authorises the Secretary of State to deprive a person of citizenship where this is “conducive to the public good” – but s.40(4) states that the order must not make the person stateless. 

The Home Office claimed compliance with s.40(4) on the basis that Ms Begum could claim citizenship from Bangladesh, in light of her Bangladeshi heritage, until the age of 21. However, on Wednesday, the Bangladesh Ministry of Foreign Affairs released a statement that Ms Begum was not a Bangladeshi citizen, and that there was ‘no question’ of her being allowed into the country. Ms Begum herself told the BBC, “I wasn’t born in Bangladesh, I’ve never seen Bangladesh and I don’t even speak Bengali properly, so how can they claim I have Bangladeshi citizenship?”

Teacher subject to disciplinary proceedings entitled to legal representation if his name is to be added to children protection register

23 January 2010 by Rosalind English

Governers of X School v R(on the Application of G) (Claimant) & Y City Council and Secretary of State for Children and Schools and Families (Interveners) & Equality and Human Rights Commission (Interested Party)

[2010] EWCA Civ 1;CA (Civ Div) (Laws LJ, Wilson LJ, Goldring J) January 20 2010

Where an individual had a civil right being determined in one set of proceedings for the purposes of Article 6, he would be able to claim protection under that provision in any other proceeding involving him if the outcome of that other would have a substantial effect on the determination of that civil right.

SUMMARY

The claimant had been employed as a teaching assistant at the appellant school. As a result of alleged incident of a sexual nature with a pupil, disciplinary procedures were instigated against him which culminated in the hearing before the committee. He was told that in these hearings employees could be represented by a colleague or a trade union representative but that any other form of legal representation would not be permitted.

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Browser Generated Information: “loss of control” entitles search engine users to compensation

4 October 2019 by Rosalind English

Richard Lloyd v. Google LLC [2019] EWCA Civ 1599

The Court of Appeal has ruled that a claimant can recover damages for loss of control of their data under section 13 of Data Protection Act 1998 without proving pecuniary loss or distress. The first instance judge, Warby J, had dismissed Mr Lloyd’s application for permission to serve Google outside the jurisdiction in the USA, so preventing the claim getting under way.

The following paragraphs are based on the Court of Appeal’s own summary of the judgment.

The central question was whether the claimant, Mr Richard Lloyd, who is a champion of consumer protection, should be permitted to bring a representative action against Google LLC, the defendant, a corporation based in Delaware in the USA. Mr Lloyd made the claim on behalf of a class of more than 4 million Apple iPhone users. He alleged that Google secretly tracked some of their internet activity, for commercial purposes, between 9th August 2011 and 15th February 2012.

When prurient curiosity meets privacy

8 April 2016 by Matthew Flinn

PJS v NEWS GROUP NEWSPAPERS LIMITED [2016] EWCA Civ 100

In an anonymised judgment dated 22^nd January – but only recently published – the Court of Appeal underscored the importance of the right to privacy in the context of sexual activity.

In the modern digital age – an age when society is grappling with “sexting” and “revenge porn”, and one’s follies may be photographed and uploaded to Facebook for friends and family (and others) to see for years to come – the nature and scope of privacy, and the public’s expectations in relation to it, are being consistently challenged and redefined. This case may therefore be seen as a welcome re-affirmation of the basic point that, at least in normal circumstances, one’s sex-life is inherently private, and not a topic for public consumption.
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The “unduly harsh” test considered further by Court of Appeal

13 April 2022 by casparlatham

The question of how to determine whether or not the deportation of a foreign national convicted of criminal offending is a disproportionate interference in the family life that they may share with their partner or child has been explored in a series of cases, including the leading decisions of KO (Nigeria) (Appellant) v Secretary of State for the Home Department [2018] UKSC 53 and HA (Iraq) [2020] EWCA Civ 1176 and has been discussed in detail on this blog here, here and here.

The Weekly Round-up: social care spending, Stafford statements and Ukraine’s legal battle

10 June 2022 by Lucy Stock

In the news:

• The recent Health and Care Act 2022 has come under scrutiny for introducing a cap on social care spending. From October 2023, the government will introduce a cap of £86,000 on the amount anyone in England will need to spend on their care over their lifetime. The cap will no longer count contributions from local authorities towards care costs. Disabled people living in the UK already spend an average of £583 a month in relation to their healthcare. The cap is much larger than the £35,000 recommended by the 2011 Dilnot Commission. There are concerns the cap breaches the Equality Act 2010 by discriminating against disabled people and other groups.

• In a report published on Tuesday 31 May, the Information Commissioner’s Office highlighted the need to reduce the requirements for complainants in rape and serious sexual offence cases to sign Stafford statements. These forms give officers consent to obtain often highly sensitive third-party materials, including medical, education and counselling records. They are said to be undermining trust and confidence in the criminal justice system. The report also called for police to stop assuming alleged rape victims have consented to searches of their phones and other devices.

• An impact assessment paper on the dangers of lifting restrictions on police stop and search powers, dated January 2022, was published on Tuesday. In the equality impact assessment, commissioned by the Home Office, officials warned that easing of conditions could damage community relations and lead to more people from minority ethnic backgrounds being targeted.

Sex abuse allegations against parent should be disclosed in contact proceedings

28 September 2012 by Matthew Flinn

Re J (A Child: Disclosure) [2012] EWCA Civ 1204 – read judgment

The Court of Appeal has ordered the the disclosure of serious allegations made against a parent by an anonymous third party in contact proceedings. In doing so, it has demonstrated the correct approach to balancing the many different human rights considerations involved. 

Every day, family courts across the UK are required to determine the difficult question of how much contact there should be between a child and his or her parents. It is the norm for these cases to be factually complicated and emotionally draining. However, this case was exceptional. It was an appeal relating contact proceedings in respect of a ten year old girl (A). The court had made various orders for contact over a number of years, with a final order being made in 2009 that the she was to stay with her father for two weeks each February and four weeks each summer.

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Family life and extraterritorial jurisdiction: IA & Ors v Secretary of State for the Home Department [2025] EWCA Civ 1516 

10 December 2025 by Guest Contributor

By Samuel Talalay

Introduction 

Court of Appeal refuses permission to appeal in Article 3 case — Vanessa Long

20 November 2018 by Guest Contributor

In the recent judgement of MM (Malawi) & MK (Sri Lanka) v SSHD [2018] EWCA Civ 2482 the Court of Appeal declined to grant permission to appeal to the Supreme Court for consideration of whether the test under Article 3 for removal of foreign nationals in medical cases, as set out in Paposhvili v Belgium [2017] Imm AR 867 , was correctly interpreted by the Court of Appeal in AM (Zimbabwe) v SSHD [2018] EWCA Civ 64.

Background

The issue in this case was whether the removal of a foreign national from the UK would breach their rights under Article 3 not to be subject to inhumane or degrading treatment where they are in receipt of medical treatment in the UK which is not available in their home country.

In 1997 the European Court of Human Rights (ECtHR) determined in D v UK  (Application no. 30240/96) that, as the applicant was in the advanced stages of AIDS to the extent that he was reliant upon palliative care in the UK and would receive no comfort or moral support in his home country, his removal would constitute a breach of Article 3. This was noted to be a ‘very exceptional’ case.

The current leading domestic authority is N v Secretary of State for the Home Department [2005] UKHL 31. N was also diagnosed with AIDS but owing to the availability of treatment in the UK she was expected to live for decades; however, if returned to Uganda, where such treatment was not available, she would die within one to two years. Lord Hope set out the test for ‘very exceptional’ as follows:

For the circumstances to be […] ‘very exceptional’ it would need to be shown that the applicant’s medical condition had reached such a critical stage that there were compelling humanitarian grounds for not removing him to a place which lacked the medical and social services which he would need to prevent acute suffering while he is dying …” [my emphasis]

Therefore, although N would die much faster in Uganda, as she would not be subject to ‘acute suffering’ whilst dying there was no breach of Article 3. This was held to be the case even though it was accepted that N’s life would be significantly shortened [see Lord Nicholls at para 15]. The issue was declared to be not whether her death would follow removal but whether “there is care available […] to enable [her] to meet that fate with dignity” [Baroness Hale, para. 69]. In N’s case it was considered that such care was available. The Grand Chamber of the ECtHR approved this reasoning in N v UK (Application no. 26565/05).

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Beanstalks, bad press and the death of juries? – The Human Rights Roundup

21 June 2011 by Graeme Hall

Welcome back to the human rights roundup, a regular bulletin of all the law we haven’t quite managed to feature in full blog posts. The full list of links, updated each day, can be found here.

by Graeme Hall

In the news:

Continuing with their assessment of the UK’s law and legal system, the Law and Lawyers’ blog has produced the latest in its series, No. 4:  Juries. This comes at an opportune moment given the recent jailing of a juror for contempt of court after using Facebook to contact an acquitted defendant. This case has seen a possible dichotomy of opinion arise: passionate supporters of trial by jury, such as barrister Felicity Gerry and Tory politician David Davis; or that of Joshua Rozenberg who poses the thorny question; “Whom would you prefer to be judged by – a highly trained, publicly accountable circuit judge? Or 12 people like [jailed juror] Joanne Fraill?”.

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Doctors acted unlawfully in deciding on eligibility for drug – Court of Appeal

4 March 2021 by Rosalind English

Basma (suing by her mother and litigation friend Sara Basma) v Manchester University Hospitals NHS Foundation Trust & Anr [2021] EWCA Civ 278

Sophie Basma (“Sophie”) is 10. She suffers from Type 3 Spinal Muscular Atrophy (“SMA”). SMA is a rare, genetic, neuromuscular disease which progressively leads to sufferers being unable to walk or sit unaided with devastating consequences on their quality of life. Sophie can no longer walk. There is medication for SMA sufferers which would have had the potential of helping Sophie regain her ability to work. But the NHS Trust had concluded that Sophie did not meet the eligibility criteria for this new medication, “Nusinersen”.

By her mother she challenged the decision by way of judicial review. The judge below found that the NHS Trust had lawfully reached the decision that they did. This was her appeal against that finding.