CON & AD LAW: HRA; ART 6
Article 6 – Right to a Fair Trial
This is a limited right
Discuss Preliminaries
1. Is your client a victim (ss 7(1) and 7(7) HRA 1998, Art.34 ECHR and Klass v Germany)?
2. Was the alleged violation committed by a PA (ss 6(1) or 6(3)(b) HRA 1998 and Aston Cantlow)?
3. Is the action within the one year time limit (ss 7(5)(a) and (b) HRA 1998)?
4. Does the court have jurisdiction to hear the claim (Art.1 ECHR)?
Consider the substantive issues: How many potential violations are there? Deal with them
separately
Art 6(1): The right to a fair trial. ‘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.’
Art 6(2): Presumption of innocence (i.e. innocent until proven guilty) and (inferred) the right not to
incriminate oneself i.e. the right to silence
Art 6(3)(c): The right to legal assistance. Anyone charged with a criminal offence is able to defend
themselves through legal assistance of their choosing or be provided with [it] if they cannot afford to
pay (when interests of justice demand)
Structure for limited rights where there is no (fictional) statutory provision
STEP 1: Is the Article engaged and, if so, how on the facts?
Note that Art 6(1) only applies if someone has been charged with an offence.
Art 6 rights are engaged because X is charged with an offence. As long as X is charged in relation to
the offence which he/she is arrested for – i.e. as part of the same proceedings – X’s Art 6 rights apply
from the time of the arrest rather than only operating from the moment he is actually charged
STATE THE VIOLATION on the facts – what was X deprived of? Forced to do?
- E.g. Art 6(1) right to a fair trial as X has been CHARGED, and Art 6(3)(c) – refusal of access to legal
advice, Art 6(2) forced to confess?
STEP 2: Has the PA violated X’s rights under Art 6?
Article 6(1): Access to justice
- Art 6(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 with a reasonable time by an independent and impartial
tribunal established by law.’
- Such a right must constitute effective access to the courts, which may encompass not only the ability
to bring proceedings, but also access to professional legal advice and representation
- Airey v Ireland: Wife wanted a separation from husband who was an alcoholic and violent. However
was unable to obtain a lawyer willing to act for her, as she could not afford the legal costs and legal aid
was not available. The ECtHR found a violation of the ECHR, art 6(1), as she had been effectively
denied access to a court for the determination of her civil rights
Article 6 – Right to a Fair Trial
This is a limited right
Discuss Preliminaries
1. Is your client a victim (ss 7(1) and 7(7) HRA 1998, Art.34 ECHR and Klass v Germany)?
2. Was the alleged violation committed by a PA (ss 6(1) or 6(3)(b) HRA 1998 and Aston Cantlow)?
3. Is the action within the one year time limit (ss 7(5)(a) and (b) HRA 1998)?
4. Does the court have jurisdiction to hear the claim (Art.1 ECHR)?
Consider the substantive issues: How many potential violations are there? Deal with them
separately
Art 6(1): The right to a fair trial. ‘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.’
Art 6(2): Presumption of innocence (i.e. innocent until proven guilty) and (inferred) the right not to
incriminate oneself i.e. the right to silence
Art 6(3)(c): The right to legal assistance. Anyone charged with a criminal offence is able to defend
themselves through legal assistance of their choosing or be provided with [it] if they cannot afford to
pay (when interests of justice demand)
Structure for limited rights where there is no (fictional) statutory provision
STEP 1: Is the Article engaged and, if so, how on the facts?
Note that Art 6(1) only applies if someone has been charged with an offence.
Art 6 rights are engaged because X is charged with an offence. As long as X is charged in relation to
the offence which he/she is arrested for – i.e. as part of the same proceedings – X’s Art 6 rights apply
from the time of the arrest rather than only operating from the moment he is actually charged
STATE THE VIOLATION on the facts – what was X deprived of? Forced to do?
- E.g. Art 6(1) right to a fair trial as X has been CHARGED, and Art 6(3)(c) – refusal of access to legal
advice, Art 6(2) forced to confess?
STEP 2: Has the PA violated X’s rights under Art 6?
Article 6(1): Access to justice
- Art 6(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 with a reasonable time by an independent and impartial
tribunal established by law.’
- Such a right must constitute effective access to the courts, which may encompass not only the ability
to bring proceedings, but also access to professional legal advice and representation
- Airey v Ireland: Wife wanted a separation from husband who was an alcoholic and violent. However
was unable to obtain a lawyer willing to act for her, as she could not afford the legal costs and legal aid
was not available. The ECtHR found a violation of the ECHR, art 6(1), as she had been effectively
denied access to a court for the determination of her civil rights
