Article 6 – Right to a Fair Trial
1. Balancing:
A major feature of the case law surrounding Article 6 ECHR is that in every case, an
exercise of balancing is carried out.
a. Domestic Court Approach:
UK courts in particular have long assumed a wide mandate for reading balancing into
the whole of Article 6.
Prime example = judgment in Brown v Stott –
Privy Council was clear that “balancing” permeates Article 6 and that
in determining whether there has been a violation, the Court must
always balance the defendant’s right against both the interests of
other participants and against the public interest.
Issue = unlike Articles 8-11, nowhere in the Convention does it say that Article 6 is
subject to qualifications or balancing.
In other Articles, the Convention specifically lays down that the right can be
infringed if the infringement is “prescribed by law” and is “necessary in a
democratic society”.
Such terms are common to all qualified rights in the Convention, and as such
the ECtHR has developed a seemingly common approach to determining
whether an infringement in a given case meets these requirements.
A key example is the judgment in Sunday Times v UK – in which the
Court stated that, for a measure to be prescribed by law, it must be
adequately accessible and formulated with sufficient precision to
enable the citizen to regulate his conduct.
What’s more, it is a common practice by the ECtHR to engage in a
proportionality assessment when considering whether a measure is necessary
in a democratic society.
While the proportionality assessment is frequently met with criticism
as to its vagueness (which there is not sufficient room to explore in
this essay), applicants are at least able to foresee, to some extent, the
approach the Court may take in their case.
BUT – the same cannot be said for Article 6.
There is no principled basis or structured approach to balancing upon
which an applicant could predict the outcome of his case.
b. Is balancing necessary?
Fairness = a multidimensional term.
Hoyano – describes the Court’s approach to the concept of “fairness” as a
quadrangulation, taking into account the rights and interests of the defence,
prosecution, complainant, and the public interest.
A fair trial must not be confused with the most advantageous trial possible from the
defendant’s point of view, but rather a fair trial is one which satisfies the public
interest in discovering the truth, whilst preserving basic procedural fairness to the
accused.
In other words, the right to a fair trial cannot be allocated to any one person –
it is enjoyed on a collective as well as an individual level.
As such, it is arguably tolerable, or indeed essential, that the Courts have read in this
element of balancing into Article 6, for to fail to do so would be to misconstrue the
true meaning of a fair trial.
2. Counter-balancing factors:
a. ECtHR approach:
Arguable, that the ECtHR goes too far in Al-Khawaja v UK – concerning the
compatibility of allowing a statement made by a witness that didn’t appear in court
with Article 6.
, Was held by the Court that in such areas, it must be examined whether there
were “sufficient counter-balancing factors” to ensure that each trial was fair
within the meaning of both Article 6(1) and Article 6(3)(d).
It is the latter which is particularly problematic for these purposes.
Article 6(3) sets out a series of “minimum rights” which everyone charged
with a criminal offence has.
The objective understanding of the phrase “minimum rights” is that this list
of 5 rights is a checklist, and that in any given case, in order for a criminal
trial to be considered fair under Article 6, these rights must be present.
The ECtHR in Al-Khawaja goes against this natural, objective understanding, instead
stating that these rights can be balanced against one another.
While an applicant may have lost her right to x, she has not lost her right to y
and therefore violation of x may be forgiven.
b. Domestic Court approach:
This point of view is reinforced by the UK domestic courts, specifically in Brown v
Stott, in which the Privy Council was clear that the balancing approach applies even
to the “minimum” guarantees in Article 6(3).
From the perspective of maintaining an acceptable degree of certainty and
predictability, this approach is highly problematic.
Even if we accept the point that a balancing approach of some degree is inherent in
Article 6, we could still regard the right as sufficiently certain/predictable if a core
element or “essence” of the right could be identified that would apply to all cases.
By resisting the idea that each person in a criminal trial has these 5 minimum
rights set out in Article 6(3), the Court has in effect, eradicated a core
irreducible minimum to the right to a fair hearing that can be easily
identified.
As Hoyano cogently argues, even if we accept that balancing is
“inherent”, it does not follow that the Court should read it in
arbitrarily, and that the “minimum” rights in Article 6(3) is one area
in which the right balance has already been struck between
competing interests.
By going against the explicit wording, and objective understanding of the
Convention, the Court’s approach in Al-Khawaja creates an unacceptable
degradation of certainty and predictability.
The national courts also appear to go against the logic of the ECtHR.
This is particularly prevalent in the case of Regina v Lambert.
The UK House of Lords held that a criminal verdict may be safe
notwithstanding that it was obtained by breach of Article 6.
In other words, a verdict should not be deemed unsafe if the jury
would have reached the same result had there not been a Convention
breach.
Despite the glaring practical issue of being unable to know or even predict a
jury’s reasoning process, such approach lacks any foundation of the ECtHR’s
case law in which it is held that Article 6 is concerned not with the verdict
but the fairness of the process by which it was reached.
An applicant surely has little to no chance of accurately predicting
the outcome of their case if the Court’s approach seems not only to
have no basis, but also to flatly contradict the logic of Article 6, as
Al-Khawaja indicates.
3. “Proceedings as a whole” test:
Court’s strict adherence to a “proceedings as a whole” test.
Evident both in the case law of the ECtHR (Ibrahim v UK) and the national
courts (Regina v Davis).
Test entails the Court asking in every case, whether the proceedings as a whole were
fair.
1. Balancing:
A major feature of the case law surrounding Article 6 ECHR is that in every case, an
exercise of balancing is carried out.
a. Domestic Court Approach:
UK courts in particular have long assumed a wide mandate for reading balancing into
the whole of Article 6.
Prime example = judgment in Brown v Stott –
Privy Council was clear that “balancing” permeates Article 6 and that
in determining whether there has been a violation, the Court must
always balance the defendant’s right against both the interests of
other participants and against the public interest.
Issue = unlike Articles 8-11, nowhere in the Convention does it say that Article 6 is
subject to qualifications or balancing.
In other Articles, the Convention specifically lays down that the right can be
infringed if the infringement is “prescribed by law” and is “necessary in a
democratic society”.
Such terms are common to all qualified rights in the Convention, and as such
the ECtHR has developed a seemingly common approach to determining
whether an infringement in a given case meets these requirements.
A key example is the judgment in Sunday Times v UK – in which the
Court stated that, for a measure to be prescribed by law, it must be
adequately accessible and formulated with sufficient precision to
enable the citizen to regulate his conduct.
What’s more, it is a common practice by the ECtHR to engage in a
proportionality assessment when considering whether a measure is necessary
in a democratic society.
While the proportionality assessment is frequently met with criticism
as to its vagueness (which there is not sufficient room to explore in
this essay), applicants are at least able to foresee, to some extent, the
approach the Court may take in their case.
BUT – the same cannot be said for Article 6.
There is no principled basis or structured approach to balancing upon
which an applicant could predict the outcome of his case.
b. Is balancing necessary?
Fairness = a multidimensional term.
Hoyano – describes the Court’s approach to the concept of “fairness” as a
quadrangulation, taking into account the rights and interests of the defence,
prosecution, complainant, and the public interest.
A fair trial must not be confused with the most advantageous trial possible from the
defendant’s point of view, but rather a fair trial is one which satisfies the public
interest in discovering the truth, whilst preserving basic procedural fairness to the
accused.
In other words, the right to a fair trial cannot be allocated to any one person –
it is enjoyed on a collective as well as an individual level.
As such, it is arguably tolerable, or indeed essential, that the Courts have read in this
element of balancing into Article 6, for to fail to do so would be to misconstrue the
true meaning of a fair trial.
2. Counter-balancing factors:
a. ECtHR approach:
Arguable, that the ECtHR goes too far in Al-Khawaja v UK – concerning the
compatibility of allowing a statement made by a witness that didn’t appear in court
with Article 6.
, Was held by the Court that in such areas, it must be examined whether there
were “sufficient counter-balancing factors” to ensure that each trial was fair
within the meaning of both Article 6(1) and Article 6(3)(d).
It is the latter which is particularly problematic for these purposes.
Article 6(3) sets out a series of “minimum rights” which everyone charged
with a criminal offence has.
The objective understanding of the phrase “minimum rights” is that this list
of 5 rights is a checklist, and that in any given case, in order for a criminal
trial to be considered fair under Article 6, these rights must be present.
The ECtHR in Al-Khawaja goes against this natural, objective understanding, instead
stating that these rights can be balanced against one another.
While an applicant may have lost her right to x, she has not lost her right to y
and therefore violation of x may be forgiven.
b. Domestic Court approach:
This point of view is reinforced by the UK domestic courts, specifically in Brown v
Stott, in which the Privy Council was clear that the balancing approach applies even
to the “minimum” guarantees in Article 6(3).
From the perspective of maintaining an acceptable degree of certainty and
predictability, this approach is highly problematic.
Even if we accept the point that a balancing approach of some degree is inherent in
Article 6, we could still regard the right as sufficiently certain/predictable if a core
element or “essence” of the right could be identified that would apply to all cases.
By resisting the idea that each person in a criminal trial has these 5 minimum
rights set out in Article 6(3), the Court has in effect, eradicated a core
irreducible minimum to the right to a fair hearing that can be easily
identified.
As Hoyano cogently argues, even if we accept that balancing is
“inherent”, it does not follow that the Court should read it in
arbitrarily, and that the “minimum” rights in Article 6(3) is one area
in which the right balance has already been struck between
competing interests.
By going against the explicit wording, and objective understanding of the
Convention, the Court’s approach in Al-Khawaja creates an unacceptable
degradation of certainty and predictability.
The national courts also appear to go against the logic of the ECtHR.
This is particularly prevalent in the case of Regina v Lambert.
The UK House of Lords held that a criminal verdict may be safe
notwithstanding that it was obtained by breach of Article 6.
In other words, a verdict should not be deemed unsafe if the jury
would have reached the same result had there not been a Convention
breach.
Despite the glaring practical issue of being unable to know or even predict a
jury’s reasoning process, such approach lacks any foundation of the ECtHR’s
case law in which it is held that Article 6 is concerned not with the verdict
but the fairness of the process by which it was reached.
An applicant surely has little to no chance of accurately predicting
the outcome of their case if the Court’s approach seems not only to
have no basis, but also to flatly contradict the logic of Article 6, as
Al-Khawaja indicates.
3. “Proceedings as a whole” test:
Court’s strict adherence to a “proceedings as a whole” test.
Evident both in the case law of the ECtHR (Ibrahim v UK) and the national
courts (Regina v Davis).
Test entails the Court asking in every case, whether the proceedings as a whole were
fair.
