What does Article 6 of the European Convention on Human Rights cover?
In general, it deals with fair trial rights. However, its implications go further. For example, the requirement of judicial impartiality precipitated reform of the centuries-old position of the Lord Chancellor in order to end the confusion of judicial, executive and legislative roles. ((A consequence of McGonnell v UK decided on 8 February 2000.
How is it structured?
Article 6 basically contains two sets of obligations. The first relate to criminal cases and the determination of ‘civil rights and obligations’. This gives the basic entitlement to ‘a fair and public hearing within a reasonable time by an independent and impartial tribunal’. Judgment must be given publicly but access to the trial may be restricted in specified circumstances.
The second relate to criminal cases only and six specific additional requirements are imposed:
•To be presumed innocent until found guilty (Article 6(2))
•To be informed promptly in a language understandable to the suspect of the detail of ‘the nature and cause of the accusation against them’ (Article 6(3)(a))
•To have adequate time and facilities to prepare a defence (Article 6(3)(b))
•To defend yourself in person or through legal assistance of your own choosing or, if you cannot afford it, ‘to be given it free where the interests of justice so require’ (Article 6(3)(c))
•To examine, or have examined, witnesses and to obtain their attendance and examination (Article 6(3)(d))
•To have the free assistance of an interpreter if you cannot understand or speak the language used in court (Article 6(3)(e))
Are there any basic principles that are relevant?
Yes. The European Court of Human Rights has developed equality of arms as a basic principle.((Niderost-Huber v Switzerland  ECHR 18990/91 at para 23, 18 February 1997). ))The court has been evolving its approach so that it reflects ‘the increased sensitivity of the public to the fair administration of justice’.((Borgers v Belgium (1993) 15 EHRR 92.)) It recently galvanised governments by a far-reaching series of judgments strengthening the suspect’s right to a lawyer in the police station.((Salduz v Turkey 27 November 2008.)) This has led a number of national courts to impose tougher requirements.((Eg our own Supreme Court in Cadder v HM Advocate  UKSC 43.))
What’s the meaning of civil rights and obligations?
All private rights determined in ordinary civil litigation eg family law, tort, contract or employment law. The difficulties have generally arisen in relation to cases by an individual against a public authority. So, for example, the proceedings of state or state-appointed bodies are covered where they determine a person’s right to practice a profession (eg as a doctor). Disciplinary proceedings against police officers and asylum hearings are, however, out.
When may a trial be held in secret?
‘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’. JUSTICE has been concerned about the growth of secrecy in cases related to terrorism and published a substantial report on Secret Evidence in September 2009. The ECtHR has developed the principle that a person must be able ‘to participate effectively’ in their trial: ‘In general, this includes, inter alia, not only his right to be present but also to hear and follow proceedings’.((Standford v UK A/282 (1994).)) It also relates to the availability of legal assistance (see below).
When must legal aid be provided?
The suspect or defendant must lack ‘sufficient means’ Legal aid must be required ‘in the interests of justice’ At the ‘first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right’.((Salduz v Turkey, see also Panovits v Cyprus ECtHR 11 December 2008.))
For further information see the JSHRN briefing on legal aid and human rights.
Are the protections of Article 6 enforced in all states which have signed up to the Convention?
Alas, no. The European Union has been concerned to protect effective criminal defence rights in its 27 member states as part of its programme on mutual legal recognition in criminal matters. This led to a framework decision on the European Arrest Warrant, implemented in the UK by the Extradition Act 2003. Minimum safeguards for suspects were supposed to follow but proposals encountered some resistance from member states – led by the UK and Ireland. A ‘roadmap’ of future measures was agreed in Stockholm, known as the ‘Stockholm programme’. This splits the measures into five. Measure C covers access to a lawyer and legal aid – which appear likely to be dealt with as two separate issues. To make its case for legislating in this area, the European Commission has commissioned various studies. JUSTICE participated in a major project jointly with the Open Society Justice Initiative, the University of Maastricht and the University of the West of England which involved the detailed study of nine countries (eight in the EU and Turkey). This led to a publication in July 2010: Effective Criminal Defence in Europe E Cape, Z Namaradze, R Smith and T Spronken, (Intersentia).
What sorts of problems appear to be arising in relation to the protection of defence rights?
The Effective Criminal Defence in Europe study identified the following problems within the nine countries examined:
•Suspects require notification of their rights
•A police station duty lawyer scheme is required
•Clear entitlement to translation and interpretation must be guaranteed
England and Wales
•Fuller disclosure to suspect during investigation stage and more effective judicial oversight of bail and arrest are needed
•Beware of cuts to legal aid
•Disclosure obligations of suspects and defendants should be reviewed
•Suspects should receive written notification of their rights
•An emergency legal aid scheme should facilitate duty representation in the police station
•Defence lawyers should take a more pro-active role and face better monitoring of quality
•Notification of rights and access to lawyer are required during preliminary detention
•Adequate supervision of investigation by police is required
•Facilities for, and quality of, defence lawyers should be improved
•Better notification of rights is required
•Means and merits test for legal aid should be simplified
•Ways of improving criminal defence standards should be developed
•Better facilities for legal assistance and interpreters are needed
•Management of legal aid should be improved
•Alternatives to pre-trial detention should be introduced
•Financial eligibility, and remuneration, for legal aid should be raised
•Use of pre-trial detention should be lower and court procedures quicker
•Better translation and interpretation are needed
•Information for suspects should be improved
•Legal aid administration should be better
•Quality of criminal defence should be raised
•Respect for, and notification of, suspects’ rights should be improved
•Legal aid should be improved
•More respect for, and pro-active work by, criminal defence lawyers should be fostered
Common themes are apparent from these summary recommendations, despite the very different nature of the jurisdictions studied. Most blatantly, delay was endemic in Italy. Overall, England and Wales, Finland and Germany came out quite well in the comparative exercise. However, the adequacy of advice and assistance in the police station was an almost universal concern.
What more general lesson emerged from the research?
The need for comprehensive enforcement of decisions of the European Court of Human Rights.