Due Process

The case law developing with reference to Article 6 ECHR shows that due process is effectively re-defining many fundamental common law ideas. - Justin Santiago

Article 6 of the ECHR provides for the right of fair trial before an independent and impartial tribunal and for the presumption of innocence. In addition, Article 6 requires that those accused of a criminal offence are informed promptly of the charges, have adequate time to prepare a defence, have a right to be represented by a lawyer and have free legal assistance when the interests of justice so require.

This is not very much different from the common law idea of procedures and practices based on Dicey’s third precept of the Rule of Law which states that the courts are protectors of individuals’ rights and liberties. The common law ideas of due process was whether there was in relation to any given judge a real danger or possibility of bias which was a subjective test on the part of the court.

The effect of Article 6 would be are more objective test to conclude whether there was a real possibility of bias and in R v Gough two tests were proposed - the reasonable suspicion test – whether a reasonable and fair minded person sitting in the court and knowing all the relevant facts would have had a reasonable suspicion that a fair trial of the defendant was not possible. The second test – the real likelihood test – was whether there was a real danger that a trial may not have been fair as a result of bias.

Porter v Magill established the new test for bias taking into account Article 6 which would simply be whether a fair-minded and informed observer having considered the facts would conclude that there was a real possibility that the tribunal was biased. The test was further elaborated in Jones v DAS Legal Expenses Insurance Co. Ltd & Ors where the courts must scrutinize all the circumstances which were relevant to the allegation that the judge was biased.

Several cases that have been decided in the UK courts and even some of the inherent characteristics of the judicial system have cast doubts on whether the common law principles of a right to a fair trial can still hold up to the rigours of Article 6.

In Osman v Ferguson the police were granted immunity from civil actions under the rule formulated in Hill v Chief Constable of West Yorkshire Police which stated that no action could lie against police for their negligence in the investigation and suppression of crime based on public policy reasons. The case was brought up to the ECtHR where it was ruled in Osman v UK that Article 6 had been violated in respect to the police’s immunity from prosecution and that the that the exclusionary rule constituted a disproportionate restriction on the applicant’s right of access to a court. Osman suggests that if the state places any restrictions on the right to a fair trial, they have to be proportionate to the desired end and the courts have to balance compelling norms with the rights to a fair trial.

In R v A it was decided that Section 41 of the Criminal Evidence Act 1999 which precluded evidence of previous consensual sexual relations with the complainant by the defendant had gone too far and denied the defendant his due process rights under Article 6 of the ECHR.

In the area of legislation, English law continues to allow the detention without trial of terrorist suspects that go against Article 6. For example the Prevention of Terrorism Act 2000 allows for detention without trial and where it is difficult to overrule a minister on a detention order. Under the Anti Crime and Terrorism Suspects Act 2001, the Home Secretary’s powers to detain suspects were subject to judicial review by the Special Immigration Appeals Commission which was an independent commission with a wide jurisdiction to hear appeals but which was not a court and this denied suspects the right to a fair trial. Additionally the Assylum and Immigration Act 2004 under Section 26 ousts the jurisdiction of the courts in all but limited cases in appeals against decisions from immigration tribunals.

The judicial system in the UK also appears not to follow due process and several steps have been put in place in light of Article 6. The position of Lord Chancellor having judicial, legislative and executive functions was seen to lead to partiality when it came to the selection of judges appeared which led to the Constitutional Reform Act 2006 which removed the judicial and legislative functions of the Lord Chancellor and put in place a Judicial Appointments Commission. The situation of the judicial committee of the House of Lords being impartial in a trial as observed in Davidson v Scottish Ministers when one of the judges in the case had also spoken on the issue in the Scottish Assembly led to the formation of the Supreme Court which severed the judicial function of the House of Lords from its legislative function which strengthened the concept of due process at the highest level of courts in the UK.

With regard to the jury, Article 6 has been invoked in order to incorporate a jury that was more widely representative of the community after Sanders v UK which was a wake up call for courts to be more vigilant in jury selection when it came to sensitive decisions.

Article 6 however does not guarantee any particular substantive content for civil rights and obligations in national law, but provides only the procedural guarantees for the determination of tenable rights. For Article 6to apply, there must be a right, obligation or charge at stake that already exists. Article 6 only protects procedural rights not substantive rights.

Therefor we see that in the case of H v Belgium the court will consider that Article 6 has been breached if certain procedural safeguards are not observed but in the case of James v UK, Article 6 was not operative because the national law already provided for access to an independent body such as a tribunal. If there was an exemption from liability this acted as a bar to litigation and as such was a substantive right and Article 6 could be avoided : Matthews v Ministry of Defence.

There are also limitations of due process in the interests of the wider functioning of the legal system. In Fiscal v Brown it was decided that the right to a fair trial under Article 6 would not overwhelm the requirement of local traffic legislation on the basis that the rights of individuals had to give way to the wider interests of the community.

Therefor although Article 6 provides for some safeguards to justice, the article itself is limited. Ultimately what is required is a return to