Chapter 12 Guidance on answering the exam questions

1. Describe and discuss the scope of the right to a fair hearing in Article 6. Consider whether it is satisfactory or whether it to be widened to include a wider range of hearings.

• This question is about the scope of Article 6 – the kinds of hearings to which it applies.
• Article 6 rights apply to hearings determining “civil rights and obligations”. This is not a precisely defined term but includes private law matters such as contract disputes. It also includes a range of other hearings such as, usually, hearings involving human rights. It is autonomous and not based on how matters are classified in domestic law.
• Article 6 rights also apply to hearings determining “criminal charges”. Again this is an autonomous Convention term. At the heart of the definition are the characteristics of the offence and, in particular, whether the hearing is aimed at punishment (see, for example, Engel v The Netherlands).
• The distinction between these two types of hearing can matter since defendants in criminal hearings have a range of specific rights in Article 6(2) and (3).
• The question whether the scope of Article 6 should be widened relates to a number of hearings that are excluded.
• First, some hearings are excluded because they are not “determining” rights or criminal charges. Article 6 does not apply to preliminary or intermediate stages in a hearing unless these have a decisive impact on the final outcome (see G v X School).
• Secondly, civil rights and obligations tends to exclude hearings concerning certain civic duties or mere claims. Thus hearings concerning taxation and immigration are excluded (e.g. Ferrazzini v Italy.) Likewise, political disputes (e.g. election courts deciding disputed elections) are excluded; these lack the private law dimension that is necessary for a “civil right or obligation” (e.g. Pierre-Bloch v France).
• Thirdly, there is an on-going issue of the extent to which administrative decisions are determining civil rights. The general tendency is that the more a decision is putting is based upon the exercise of discretion as distinct from giving effect to a clear statutory duty, the more it is likely not to involve civil rights. This point is important in the context of decisions about welfare benefits (e.g. R (A) v Croydon LBC)
• In this context it is worth pointing out that, if civil rights and obligations are being determined by, for example, a local authority housing department there will not be a breach of article 6 so long as there is a right of appeal or review to a court with full jurisdiction to hear all the arguments or fact or law that need to be made on the basis of an Article 6 procedure (e.g. R (Alconbury) v Secretary of State for the Environment.)
• There is therefore a point that there ought to be a right to a fair hearing which extends to administrative decisions. Whilst this may at one time have been the intention, its absence has not caused a major problem.
• The definition of a criminal charge, which focuses on punishment as the point of the hearing, can exclude a wide range of hearings that can be very restrictive for the individuals concerned but are aimed at public protection. The general approach (especially of UK courts) has been to accept that Article 6(2) and (3) do not apply but to insist on a high, criminal law, standard of proof (e.g. McCann v Manchester Police). Nevertheless there could be a case of making this clearer and having more specific fair procedural rights in these situations.

2. The Prison Service is creating an entirely new set of procedures dealing with prison discipline and you, as a Ministry of Justice lawyer, have been charged with ensuring compliance with Article 6 for the system to be used in the prisons housing the most dangerous prisoners. You are asked to advise on (a) whether Article 6 is involved and, if so, in which situations; (b) what specific rights Article 6 provides; and (c) whether those rights can be restricted to prevent, for example, the intimidation of one prisoner by another.

• This question requires knowledge Article 6, especially in respect of criminal hearings.
• (a) Yes Article 6 is involved. Prison disciplinary hearings are likely to be “determining” Conventions rights (e.g. right to liberty) and so are likely to be determining “civil rights and obligations”. Therefore, any hearing must meet the standards of a fair hearing in Article 6(1). These are somewhat flexible and context dependent.
• But, following Ezeh v UK, if the disciplinary hearing may result in the prisoner being, in effect, punished (e.g. by retarding any early release he may enjoy) then a disciplinary hearing will also be determining a “criminal charge”. This is an autonomous Convention concept which has punishment at its core.
• Both the above observations assume that the hearing (e.g. before the governor) is the final and not some preliminary stage for some further body to decide the issue. If that were to be the case then, assuming that further body acts independently, the prison disciplinary hearing would not be determining the outcome.
• (b) The right under Article 6(1) is to a fair hearing. This is a context dependent term but includes as inherent basic requirements the idea of “equality of arms” – that all parties have equal access to the evidence. This could raise difficult questions concerning confidential evidence (see below). The hearing must also be within a reasonable time. The ECtHR does not lay down specific time periods and the needs for the efficient running of the prison can be taken into account, but unreasonable delay in those circumstances would be a breach. Thirdly, and importantly, the tribunal must be independent and impartial. In the prison context it may be necessary to bring in an independent adjudicator since the governor may not be impartial (as is the case under the Prison Rules as they currently stand). There is no right of appeal for prisoners but it is possible that their right to bring judicial review may satisfy this requirement (so long as JR has full jurisdiction to hear all the relevant matters of law and fact.) This would remedy what would otherwise be a breach of Article 6.
• The right under Article 6(2) and (3) (which is additional to 6(1) conveys a number of rights specific to defendants in criminal cases. Particular problems that may need to be addressed in the prison context are the right to see adverse evidence and challenge it my cross examination and the right to legal representation (the particular difficulty in Ezeh.)
• (c) The precise content of Article 6 rights is context dependent. Furthermore, it is recognised that in certain situations (such as the need to protect a prisoner or to recognise the rights of others or general safety) some restriction on rights may be necessary. This can, in particular, be restricting the right to see all the evidence. The general approach of the ECtHR is to allow such restrictions, if they are truly necessary, subject to there being adequate counter-vailing measures which can compensate the claimant (see Chahal v UK). Usually it must remain the case that the claimant knows the basis of the case against him or her and their conviction is not solely or decisively on the basis of undisclosed evidence. These principles will have to be taken into account in the new scheme. Countervailing measure could include special counsel but subject to the “solely or decisively” rule unless, as indicated in Khawaja v UK, the counter-vailing measures are very strong.