Article 6 Right to a fair trial
Article 6: Your right to a fair trial
Our right to a fair trial is fundamental to the rule of law and democracy.
It applies to both civil and criminal cases and cannot be limited in any circumstances.
The right to a fair hearing contains a number of requirements:
- People must have real and effective access to a court – which may require access to legal aid. There are limited exceptions, such as vexatious litigants, minors and prisoners.
- There must be a hearing before an independent and impartial court or tribunal established by law – including unbiased jurors.
- The hearing must be held within a reasonable time. This depends on the complexity of the case, its importance, the behaviour of both the applicant and competent authorities, and the length of time between the conduct in question and the trial.
- The applicant must have a real opportunity to present their case or challenge the case against them. This will require access to an opponent’s arguments, procedural equality, and generally an oral hearing and access to any evidence relied on by the other party.
- The court or tribunal must give reasons for its judgment.
- There must be ‘equality of arms’ on both sides – meaning a fair balance between the opportunities given to both parties. They each have the same right to examine all witnesses and equal rights to legal representation, for example.
- In criminal cases, there is a right to silence and a right not to be compelled to incriminate yourself.
- An accused person must have the right to effective participation in a criminal trial. Except for strictly limited exceptions, he or she is entitled to be physically present to give evidence in person and be legally represented.
- The hearing and judgment must be made public – but hearings can be held in private when:
- it can be shown to be necessary and proportionate and in the interest of morals, public order or national security
- it is in the best interests of a child
- it is required for the protection of the private life of those involved
- it is strictly necessary in special circumstances when the court believes publicity would prejudice the interests of justice.
Civil rights and obligations
The following areas are generally considered to be governed by the right to a fair trial:
- property rights
- right to practise a profession
- family rights
- right to compensation
- right to engage in commercial activities
- some employment decisions
- control orders
- anti-social behaviour orders.
But the following are not considered to be civil rights and so aren’t covered by Article 6:
- entry or removal of immigrants
- tax obligations
- right to stand for public office.
Right to be presumed innocent until proven guilty
Article 6 says that anyone charged with a criminal offence must be presumed innocent until proven guilty.
Requiring a defendant to prove elements of his or her defence might breach this right – particularly if a legal burden of proof is placed on the defendant, requiring them to prove the case against them is not true.
Minimum rights in criminal trials
Article 6 also guarantees the following minimum rights in criminal trials:
- the right for the accused to be promptly informed of the accusation against them. The charge must be detailed, adequately precise and in a language the accused can understand.
- the right to have enough time and resources to prepare a defence.
- the right to legal representation, including to either defend oneself in person or through legal assistance chosen by the accused, for legal aid to be provided if a person cannot afford legal representation and when the interests of justice require it.
- the right to examine witnesses against an accused person – and for the accused to present witnesses for their defence. This does not prevent vulnerable witnesses from giving evidence in alternative ways, either anonymously or via videolink, as long as not all evidence against the accused is presented anonymously.
- the right for the accused to have the free assistance of an interpreter if they cannot understand the language used in court
Terrorism Prevention and Investigation Measures (TPIMs)
In 2005, the House of Lords ruled that holding foreign terror suspects in Belmarsh prison without charge or trial was unlawful.
Rather than charge and prosecute these individuals within the criminal justice system, the Government brought in the unsafe and unfair Control Orders scheme.
Control Orders let the Home Secretary impose an almost unlimited range of restrictions on any person they suspect of involvement in terrorism, with Parliament voting every year to continue the scheme.
Almost immediately after coming to power in 2010, the Coalition Government announced it would review the counter-terror laws and policies adopted by its predecessor.
As a result, the Government scrapped Control Orders – but replaced them in January 2012 with Terrorism Prevention and Investigation Measures (TPIMs).
TPIMs are simply control orders-lite, replicating the worst aspects of the control order regime. These new measures remain outside the criminal justice system – potentially punishing the innocent while the truly dangerous may remain at large in the community.