An interpretation of Article 6 of the European Convention on Human Rights, with specific reference to its violation.
Question
Under the (fictitious) Mental Health Act 2009, patients in mental hospitals are only allowed to take legal action against hospital employees if they first obtain leave of the court. At Happy Place Mental Hospital there is a disturbance in which Andy (a patient) is hit over the head with chair by Bob (a diabetic nurse) who believed (as a result of a delusion caused by his diabetes) that he was being attacked by Andy. A visitor to the ward, Claire, is hit by part of the chair and is badly cut on the face. Andy and Claire now want to take legal action against the hospital for compensation.
1. The High Court refuses Andy permission to proceed with a case against the hospital. When Andy hears this he becomes so violent that he breaks another patient’s nose. The police are called and Andy is arrested. At the police station Andy demands access to a lawyer, but the police refuse his demands. The police then proceed to interview Andy who refuses to answer any questions. The police tell Andy that the jury at his trial will be told of his silence, from which they will infer that Andy had no answer to the police questions and was guilty of assault, occasioning actual bodily harm (ABH). This is what occurred.
2. Claire sues the hospital for negligence and for trespassing but her negligence case is dismissed on the basis that the hospital staff do not owe her a duty of care and therefore there is no question of the hospital being vicariously liable. Claire’s action for trespass also fails because the court relies on a confidential report that suggests that the hospital had taken reasonable action to control Bob’s diabetic condition. Claire and her legal advisors are not allowed access to this report.
3. Subsequently Andy hangs himself at the hospital. Doris, the chief executive at the hospital, is questioned under the (fictitious) Corporate Manslaughter (Compulsory Answers) Regulations 2011. These regulations require Doris to answer police questions about the death and, on the basis of the answers, the hospital is prosecuted for corporate manslaughter and Doris is prosecuted of killing by gross negligence. Both are convicted.
Advise whether the rights of Andy, Claire and Doris under article 6 of the European Convention on Human Rights have been violated.
Answer
Introduction
All three scenarios are covered by Article 6 of the European Convention on Human Rights which concerns a citizen’s right to a fair trial. This encompasses both criminal and civil law but the stakes are arguably higher in criminal law when a person’s liberty is at risk. It includes principles such as the presumption of innocence, the right to a fair and independent trial within a reasonable time, the right to cross examine witnesses, access to free and accessible legal representation and the right to an interpreter where need be.
Article 6 says that, ‘Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’[1] It is also important to note that the State must have signed the Convention in order for its citizens to reap the full benefit of the rights and be able to appeal to Strasbourg.
Question One: Andy
The Right to Access to a lawyer
Andy can fairly argue that his Article 6 rights were impeached by the actions of the police. Firstly, Article 6(2) states that, ‘Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.’ This includes the requirement that everyone is treated fairly when arrested by the police. Article 6 further goes on to say that, ‘Everyone charged with a criminal offence has the following minimum rights: (c) to defend himself (sic) in person or through legal assistance of his own choosing or, he has not sufficient means to pay for legal assistance, be to be given it free when the interests of justice so require.’[2]
Therefore it is clear that Andy’s right to legal representation was breached as he was denied access to a lawyer as he requested. Strasbourg considers the right to legal assistance as paramount. It should only be restricted in limited circumstances. The police can restrict a suspect’s access to his lawyer only in the case of pursuing a legitimate aim and a reasonable degree of proportionality is required to ensure the aim is achieved. This was decided in the case of Ashingdane v United Kingdom[3] which followed the approach in Golder v United Kingdom[4] where a suspect was denied access to his lawyer. This was held as a violation of Article 6 and a denial of effective access to court. As the suspect could not have confidential discussions with a lawyer before his submissions, this was also declared to be a breach of Article 6 as seen in Campbell and Fell v United Kingdom[5].
Therefore in order for the police to prove that their actions were lawful, they would have had to show that they prevented Andy from having proper legal representation for a proportionate reason. In the UK one such reason would be that by allowing the suspect access to a lawyer would prejudice the investigation. Another reason would be that a delay could not be allowed as time was of the essence.[6] On the facts alone it does not appear that the police had any genuine reason for preventing Andy from speaking to a lawyer and, on this basis, they would be in breach of Article 6. However a full assessment of the issues and reasons would be considered at a hearing in Strasbourg. The reasoning presented here is based on the facts at hand.
Freedom from Self-Incrimination
Under Article 6, Andy had the right to remain silent. This right was infringed by the police when they told the jury to infer guilt from Andy’s silence. This issue was examined by the court in Heaney and McGuiness v Ireland[7] (where two suspects were found guilty after remaining silent during police interrogations and during their trial). Both suspects had the right not to incriminate themselves and chose to enforce this when charged with terrorist offences. ‘The court, accordingly, found that the security and public order concerns relied on by the Government cannot justify a provision which extinguishes the very essence of the applicants’ rights to silence and against self-incrimination guaranteed by Article 6(1) of the Convention.’[8] On this basis, Andy experienced a clear violation of Article 6 and Strasbourg would ensure that the contracting State was punished for this breach.
Strasbourg’s support of the right to a fair trial, as documented in Article 6, includes the right to remain silent and not to self-incriminate was stated in the case of Cooke v Austria[9]. In the leading case of Saunders v United Kingdom [10] it was described as a ‘recognised international standard[s]…which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6.’[11] This lengthy quote encompasses the principles and rationale of Article 6, which make it an invaluable commodity in any criminal trial. It is the right of the defendant to remain silent. The prosecution must be able to prove its case against the accused without any assistance from the suspect.
Whilst the freedom from self-incrimination is self-evident, the Court has taken a less robust view on the drawing of adverse inferences following the silence of a suspect. It was decided in the case of John Murray v United Kingdom[12] that such a right is not absolute and silence may be taken into account by a jury when deciding whether the accused should have explained themselves. However, in the case of Condron v United Kingdom[13] it was stated that a conviction cannot be made solely on a suspect’s silence. Strasbourg has said that such use of silence is a common-sense approach when an innocent person is expected to account for his/her behaviour; however to ensure the jury makes proper use of the silence, the jury needs direction from the trial judge as to how to use the silence in their overall evaluation of the case. This was held in Condron where sample directions were given as guidance. Therefore, the jury is allowed to use the accused’s silence when evaluating his/her guilt but the overall conviction cannot be based solely on this. In applying this to Andy’s case, more facts would be required so that his conviction was not be based solely on his silence. Further prosecution evidence had to be presented.
Question Two: Claire
Claire’s problem lies in the duty of disclosure and the right to equality of arms in adversarial proceedings. Equality of arms simply means that parties to proceedings must have an equal opportunity to prepare the case for court to ensure that all parties are on the same footing when the trial begins. This was held in the case of De Haes and Gijsels v Belgium.[14]
The duty of disclosure was discussed by the Commission in the case of Jespers v Belgium[15] where equality of arms was combined with Article 6(3): this imposes the duty of disclosure on both parties. To ensure equality of arms, both parties must disclose all material to be presented in the proceedings, even if the documents could provide assistance to the accused. In the case of Foucher v France[16] it was held that denying a suspect access to a case file and its documents meant the suspect was unable to prepare her/her defence effectively: a clear violation of the principle of equality of arms.
Therefore, using Strasbourg case law as a guide, it can be shown that Claire has good grounds on which to appeal for breach of her Article 6 right to disclosure. Claire was entitled to know what the case against her was and have access to all the relevant documentation before the trial. However, national law does dictate that where a document is legally privileged or the documents are no longer under the control of the parties, then the Article 6 right may not be impeached. The Article 6 right to disclosure is not an absolute right[17] and national law can put restrictions in place in line with national convention rules such as legal privilege. However in this instance, we are told that such a report existed and that the prosecution had access to it. As long as it was not privileged, this may be a sufficient argument for Claire.
This is where interaction with Article 8 of the Convention comes into play;[18] Mowbray argues that disclosure of medical reports and sensitive information relating to another person could be a breach of the right to privacy as stated in Article 8. As the report contains information of someone’s diabetes, this is arguably covered by Article 8 and Strasbourg would have to perform a balancing act between the two rights when deciding whether there has been a breach. Such a balancing act occurred in the case of Von Hannover v Germany (No 2)[19] where the national state’s margin of appreciation came into play.
Question Three
One of the reasons Article 6 is considered to be so important for academics is the commitment the European Court has shown it. In the case of Perez v France[20] (2004) the Court held that, ‘the right to a fair trial holds so prominent a place in a democratic society that there can be no justification for interpreting Article 6(1) of the Convention restrictively’.[21] Therefore a wide interpretation is required in cases alleging a violation and breach. In this instance, Doris was cross-examined. While this is allowed by national law, such cross-examination must be reasonable and to a proportionate degree. We have no information as to whether this was done and more facts are required to ensure a proper analysis of the case.
It is arguable that Strasbourg would be inclined to examine the facts of the hearing to ensure that Doris was convicted on evidence other than cross-examination. However, if there was other evidence on which Doris was found guilty, the Court may not be able to intervene in the decision. This was the case in Garcia Ruiz v Spain[22] where it was deemed to be a matter for the national court and any infringement would have to be appealed in the domestic court.
It can be argued that Doris experienced a breach of Article 6 as she was forced to answer questions. As has been explained above, this may be considered to be an infringement of Doris’ right to protection from self-incrimination. Doris should have been allowed an informed choice as to whether she answered questions at her trial or whether the prosecution should be put to proof on every point of law. This was confirmed in Sanders v UK, as referenced above. However if public policy is put to contention, then Strasbourg may be reluctant to uphold a challenge as seen in Brown v Stott[23] where the suspect was compelled to answer questions and was not allowed the right to silence.
In the leading judgment of the Grand Chamber, the Court decided that, ‘Having regard to all the circumstances of the case, including the special nature of the regulatory regime at issue and the limited nature of the information sought by a notice under section 172 of the Road Traffic Act 1988, the Court considers that the essence of the applicants’ right to remain silent and their privilege against self-incrimination has not been destroyed.’[24] This quote encompasses the important considerations that have to be dealt with by national legislatures; however Judge Pavlovschi was unimpressed by this reasoning. He described it as a ‘fundamental mistake’[25] that was dangerous and infringed the right to silence.
Given the case law outlined, Doris should be advised to take her case to Strasbourg to argue her human rights violations.
Bibliography
Cases
Ashingdane v United Kingdom 8225/78 (1985) ECHR 8
Golder v United Kingdom 4451/70 [1975] ECHR 1
Campbell and Fell v United Kingdom 7819/77 [1985] ECHR 28
R v Samuel [1988] 1 QB 615
Heaney and McGuiness v Ireland 34720/97 (2000) ECHR
Cooke v Austria 2587/94 (2000) ECHR
Saunders v United Kingdom 43/1994/490/572
John Murray v United Kingdom 18731/91 [1996] ECHR 3
Condron v United Kingdom 35718/97 [2000] ECHR 191
De Haes and Gijsels v Belgium 19983/92 [1997] ECHR
Perez v France (47287/99) Judgment 12.2.2004
Garcia Ruiz v Spain 21/01/1999 ECHR
Von Hannover v Germany (No 2) 40660/08 and 60641/08 (2012) ECHR
Brown v Stott [2001] 2 WLR 817.
European Instruments
European Convention on Human Rights
Legislation
Police and Criminal Evidence Act 1984
Books
Alastair Mowbray, Cases and Materials on the European Convention on Human Rights (first published in 2007, OUP 2012)
[1] Article 6(1) of the European Convention on Human Rights
[2] Article 6(3) of the European Convention on Human Rights
[3] 8225/78 (1985) ECHR 8
[4] 4451/70 [1975] ECHR 1.
[5] 7819/77 [1985] ECHR 28.
[6] Police and Criminal Evidence Act 1984, section 58(8)(b), confirmed in R v Samuel [1988] 1 QB 615.
[7] 34720/97 (2000) ECHR
[8] 34720/97 (2000) ECHR para 58
[9] 2587/94 (2000) ECHR
[10] 43/1994/490/572
[11] 43/1994/490/572 para 64.
[12] 18731/91 [1996] ECHR 3
[13] 35718/97 [2000] ECHR 191
[14] 19983/92 [1997] ECHR.
[15] 27 DR 61
[16] (1997) 10/1996/629/812
[17] Alastair Mowbray, Cases and Materials on the European Convention on Human Rights (first published in 2007, OUP 2012) 404.
[18] Alastair Mowbray, Cases and Materials on the European Convention on Human Rights (first published in 2007, OUP 2012) 507
[19] 40660/08 and 60641/08 (2012) ECHR
[20] 47287/99) Judgment 12.2.2004
[21] 47287/99 Judgment 12.2.2004 para 64.
[22] 21/01/1999 ECHR
[23] [2001] 2 WLR 817.
[24] [2001] 2 WLR 817 para 62
[25] [2001] 2 WLR 817