This will go over Article 6 Essay Plan and Layout with case law.
When doing a HR Scenario you will not use all of the essay plan, but rather the parts which are relevant to the scenario.
INTRODUCTION
Article 6(1) states that everyone has the right to have a fair trial in both civil and criminal
trials.
The key provision goes over:
access to a court
equality of arms
presumption of innocence
right to silence
right to legal representation
oral hearing
evidence
reasons for a decision
within a reasonable time
independent and impartial hearing
If any of those are restricted the courts will need to ask:
1. Is there a public interest in the restriction? (protect vulnerable, nation security issue)
2. Is the restriction in proportion to the aim? (not too strict, no blanket ban,
challenge?)
POTENTIAL RESTRICTIONS
Access to Court
There can be various restrictions put on when trying to bring a case to the courts, these are:
1) Limitation periods (time to bring a case to court, PI – 3 months, property – 6 months)
2) Vexatious litigants (limit the people to continually try to bring a case to court)
3) Judicial immunity (cannot bring a Judge to court for a court ruling)
4) Police negligent cases (Police immune from negligent claims, but Osman v UK
showed that they are not allowed a ‘blanket ban’ from bringing all cases)
Equality of Arms
When brining a case to trial there must be a fair balance between both parties and they
should not have a great advantage over the accused.
However, in the case of A-G Ref 82 2000, it showed us that the equality of arms does not
have to be completely equal. Yet there is a boundary to this, in Steel and Morris v UK, we
saw that Steel and Morris were representing themselves against McDonald ’s legal team
therefore, resulting in a unfair balance of equality of arms.
Prosecution must also disclose all evidence that they have against the defendant.
Restrictions to Equality of Arms
National Security: may not disclose all evidence, can appoint special advocate,
Children: T and T v UK, steps can be taken to ensure they are not given an intimidating trial
Presumption of Innocence
The burden is for the prosecution to prove that the defendant is guilty not the defence to
prove their innocence.
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