What is a fair trial?

What is a fair trial?

In the UK, the right to a fair trial has developed over centuries, and originally derived from sources such as the Magna Carta, the 1689 Bill of Rights and the common law. Today, however, the most pertinent authority is Article 6 of the European Convention on Human Rights (the “Convention”), which provides (in part) that:

“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.”

Article 6 applies to both civil and criminal proceedings, but its significance is probably greatest in criminal matters, where it requires a presumption of innocence and other procedural protections for the accused.

This article summarises some of the features of the right to a fair trial.

Access to the court

In order to obtain a fair trial, a person needs to have access to the court. There have been a number of cases where individuals have, in effect, been denied access to the court, and have brought proceedings alleging that this denied them their right to a fair hearing under Article 6.

The outcomes of those challenges have been mixed, depending on the facts and circumstances. For instance, in some cases the European Court of Human Rights (ECHR) has held that for a litigant to have meaningful access to the court he must be provided with legal aid (if he cannot afford to hire a lawyer). The ECHR has, however, made it clear that there is no absolute right to legal aid — but in complex cases where the stakes are high for the litigant (such as a child custody case) Article 6 provides that the litigant is entitled to effective legal representation in the proceedings. In addition, Article 6 expressly provides for legal assistance in criminal matters (see below).

Another issue relating to access is immunity. In several cases, a defendant has claimed immunity from suit, thus preventing a claimant from obtaining a remedy in court. Many claims of immunity (though not all) have been upheld by the ECHR on the basis that there is a public interest consideration that outweighs the policy benefit of allowing individuals to sue. One such case involved a person who alleged that she had been slandered in a Parliamentary debate. In that case, the ECHR held that the rule that an MP cannot be sued for defamation based on something he has said in Parliament does not contravene Article 6, as it is justified by the importance to the public of having free and unfettered debate in Parliament.

Right to be present at hearing

The right to be present at trial is particularly important in criminal cases, as the defendant ought to be allowed to confront and challenge his accusers. The ECHR has allowed that in certain circumstances a criminal defendant can be tried in his absence, but only where: (i) the prosecuting authorities have made diligent efforts to notify the defendant of the trial but have not succeeded in doing so; (ii) the defendant is too ill to attend the trial and it is in the interest of justice that the trial nevertheless proceed; or (iii) the defendant has unequivocally waived his right to be present.

Protection from self-incrimination

Although Article 6 does not expressly include a right to protection from self-incrimination, the ECHR has held that the right to a fair trial includes a measure of protection from self-incrimination. In a case originating in the UK, the ECHR held that where a defendant had been compelled to give certain information to government inspectors on pain of criminal prosecution, that information could not be used against the defendant in a criminal trial.

The ECHR has also held that the use of informers can amount to a breach of the Article 6 protections. In a case where the police put an informer into the same jail cell as the accused with the objective of getting information from the accused, the ECHR found that despite the fact that there was no direct coercion, the continual questioning and psychological pressure called into question the voluntariness of the statements the accused made to the informer.

The ECHR has, however, also held that the right to protection from self-incrimination does not prohibit a court or jury from drawing inferences from the fact that a defendant chose to remain silent when interrogated.

Right to adversarial proceedings and equality of arms

To obtain a fair hearing, each party must be allowed to present his case in a manner that does not put him at a disadvantage to his opponent. In addition, he should be made aware of and permitted to comment on all evidence against him that is to be adduced at trial.

Based on those requirements, the ECHR found that a Court of Appeal decision from the UK was not compatible with Article 6. In that case, the Court of Appeal had upheld a conviction where the prosecution had withheld certain evidence on the grounds of public interest. In fact, at trial the prosecution had done so without notifying the trial judge. When the case went to the Court of Appeal, the prosecution told the defence that it had withheld certain evidence, but did not tell the defence the nature of the evidence. The Court of Appeal then reviewed the evidence, with commentary from the prosecution but in the absence of the defence. The ECHR held that this procedure did not constitute an adversarial proceeding and equality of arms for the defendant.

An independent and impartial tribunal

Article 6 provides for hearing by an independent and impartial tribunal. On several occasions, litigants have successfully challenged the independence and impartiality of certain courts and tribunals. For example, in a case from the UK the ECHR found that a UK military court was not independent and impartial, since the presiding officer of the tribunal was appointed in an ad hoc, non-systematic manner and the judge advocates to the tribunal were serving naval officers. In another case, however, a UK army court martial was found to be independent and impartial, as it had a permanent presiding officer and there were civilian judge advocates.

Article 6 provisions for criminal trials

Although the protections discussed above apply to criminal trials and, in certain respects, to civil trials, Article 6 includes a number of provisions that specifically relate to criminal trials. These are:

“2. Everyone charged with a criminal offence shall be presumed innocent until proven guilty according to the law.

“3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and the 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.


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