#14952 - Fair Trial Rights - Principles of Civil Procedure

Fair trial

Components: Art 6 ECHR

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

• within a reasonable time

• by an independent and impartial tribunal established by law.

• Judgment shall be pronounced publicly but 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.

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

Nature of Art 6

• Said that it provides an absolute right – that can’t be balanced against other rights / competing interests

  • Infringement can’t be justified by higher purpose

• BUT all of elements are a matter of degree

Right to be heard & public trial

Right to be heard

• Justifications

  • Instrumental – distorts conclusion of adversarial process unless both sides heard

  • Dignitarian – respect for autonomy of the parties

• Requires

  • Notification (service)

    • Comprehensive – of claim, particulars of allegation and of evidence

  • Time to respond

  • Opportunity to challenge evidence

  • Right to respond & meet allegations

Qualifications

• Urgency – ex parte applications without notice

  • Balanced by short return date – deprivation of right not permanent

• Secrecy – where notification would defeat process – freezing injunctions

Right to public trial

• Justifications

  • Instrumental justification – more disposed to correctly find facts

    • Witnesses – more likely to tell truth in the open? Not necessarily true

    • DM/judge is unaccountable & can reach odd factual conclusions – promotes irrationality, bias (incl towards own hypothesis), lack of thoroughness or corruption

  • Confidence in the administration of justice – expose procedure & reasoning process – judging compliance with standards

    • Secrecy – no standards by which can be criticised – no constraints on decision-making – leads to arbitrary decisions

    • Guard against bias

    • In other contexts – eg Cabinet – meetings are secret – but subject to elections, and fear of leaks

    • AZ says no objective measure of correctness of decisions – can only observe the process – otherwise undermines confidence in justice and our own rights / incentive to comply with the law

  • Educational value – informs public & guards judiciary from uninformed criticism

    • Also stare decisis – if precedent is binding it should be knowable

  • Democratic function – promotes debate by giving reasons in public

    • Participatory value – public dimension in ability of public to comment & encourage development of law

  • Rule of law – common law must be knowable

• Aspects to publicity

  • Litigant – right in Art 6

    • Tension between efficiency <> publicity & quality of justice

  • Public dimension – opportunity to attend / be informed

    • Tension between efficiency <> publicity (but not necessarily quality?) – eg opening speeches, EIC in bundle rather than in open

    • There is public interest in efficiency – and if court file is public then if we assume literacy concern is remedied

      • Public access to court file – only during conduct of proceedings (equivalent opportunity as access to oral evidence) – otherwise on application to court, generally granted unless reasons to refuse

• Applications in chambers – not closed but no practical opportunity for public to attend

• CPR

  • 5.4C & 5.4D re access by public –

Qualifications & attenuating circumstances

39.2(3) A hearing, or any part of it, may be in private if –

(a) publicity would defeat the object of the hearing;

• eg freezing injunction

(b) it involves matters relating to national security;

(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;

(d) a private hearing is necessary to protect the interests of any child or protected party;

(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;

(f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or

(g) the court considers this to be necessary, in the interests of justice.

Personally sensitive information

• Protection of welfare of parties – eg child care proceedings

  • But judgment still published; application is to particular party, said not to be adversarial proceedings – but welfare of parents is welfare of children

• Financial affairs – tax office doesn’t reveal disclosures

  • In suit against the Revenue – does tax confidentiality justify private hearing/anonymisation/redaction?

    • Names generally not published in continental Europe

    • BUT generally published in UK & in the case of Doctor making an application of this kind, was published

      • EG – in claim for overpaid tax, publicity may see evidence come to light eg cash payments – unknown unknowns

Commercially sensitive information

• Patent hearings – applications to derogate from publicity & from notification of other party – to avoid sharing confidential commercial information

  • Cases consider whether sensitive patent materials should be disclosed only to opponent’s lawyers & experts

    • Prevents the lawyer from taking instructions

  • BUT Rest of process is public

National security

• Crown Privilege (unreviewable) – Duncan v Cammell Laird [1942] (trials on new submarine design – submarine was submerged & never came back up – employees lost – families brought proceedings against shipbuilders for negligence in design of submarine – blueprints during wartime were sensitive – could backfire & frontfire D asserted Crown Privilege – that assertion is conclusive – not disclosed)

  • BUT Crown can get privilege just by asserting

  • Public benefits – particular parties suffer – is that distribution of burden appropriate?

    • Can’t assess liability & quantum without documents

    • CF if liability could be established another way & documents would show no negligence – Ds would suffer

  • Sharing the burden

    • Eg

      • No fault State compensation schemes

      • Compulsory acquisition

      • Criminal injury compensation

    • Should have a similar scheme in assertions of PII defeating civil claims

• Establishment of Public Interest Immunity – Conway v Rimmer [1968]

  • Balancing test – harm to public <> harm to administration of justice

  • Difficulty in case where – serious harm to public interest & cannot reach correct decision without evidence disclosed

• Case in c 2012 – grant of PII in action against police by informant alleging braech of alleged contract – could not be determined without looking at ‘contract’ – covered by PII – but AZ: alleged contract was illegal & unenforceable anyway?

• Closed material proceedings

  • Al Rawi (proceedings alleging torture – no common law power to conduct CMP in inherent power)

  • Rationale – better to decide with regard to all evidence while excluding parties, than by part evidence with some excluded for PII

Right to independent & impartial tribunal

History

• Magna carta – justice will not be sold

Content of rule

• Independence from executive & legislature

  • ECtHR factors:

    • Manner of appointment

    • Duration of tenure

    • Guarantees against outside pressures

    • Appearance of independence

  • Administrative decision-makers make quasi-judicial decisions

    • Even if no independence of administrative decision-makers, judicial review will satisfy requirements of art 6

    • Eg Guernsey case – judge performing role of bailiff also – can’t have substantive role in drafting rules and applying them

• Independence from parties

  • Independence – cannot have vested interest in case

  • Impartiality – conduct, behaviour, relationships cannot give rise to suspicion that not impartial – apprehended bias

Meaning of Bias

• Prohibition on extraneous considerations –

  • financial interests, personal relationships, knowledge of irrelevant or inadmissible facts, ideological & religious beliefs, personal experiences

  • BUT Judges not robots – don’t automatically apply algorithms for justice – have to be representative of the community – so must draw on experiences?

• Prohibition on pre-judgment

  • When has prejudged the issue and cannot or will not revisit the issue with an open mind: Sengupta v Holmes [2002] EWCA 1104

  • BUT no judge comes to court as a blank canvas – has often heard from witnesses before; canvassed similar legal issues before

  • Vakauta v Kellya (1989) 167 CLR 568 (disparaging comments about medical expert...