Fair trial

Everyone should have the right to a fair trial, they should not be denied that right because they're suspected of having committed a crime.

In England and Wales the right to a fair trial has developed over the centuries, and originally derived from sources such as the Bill of Rights 1689, the common law and of course the Magna Carta 1215, which stated that a "freeman shall not be... imprisoned... unless by the judgement of his peers".


The common law embraced the concept of fair play and adopted rules which became known as the rules of natural justice. The main principles being that “Audi alteram partem” (Latin term, meaning to hear the other side) and “Nemo judex in sua causa” (meaning that nobody may be judge in his own cause ).


The right to a fair trial (a public hearing) is seen as the best means of establishing guilt or innocence and ensuring that justice is seen to be done. It is important if a society is to feel confident about justice and the rule of law. To this end the notion of openness, impartiality and lack of bias have become cornerstones of our legal system.


It was Lord Chief Justice Hewart in R v Sussex Justices, ex parte McCarthy (1924) who famously said “...it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”. The appeal was against a decision by the Magistrates to convict McCarthy for dangerous driving. The Clerk to the Justices worked with the solicitors acting in a civil claim against the defendant arising out of the accident that had given rise to the prosecution. Neither the defendant nor his solicitors were aware of this connection at the time of the trial. On learning of the connection the defendant applied to have the conviction quashed. The appeal was allowed, as it raised the question of possible bias despite the Justices swearing affidavits stating that they had reached their decision to convict the defendant without consulting their Clerk.


The concept of justice being seen to be done and it links to public confidence is no better illustrated than in Re Pinochet (1999) in which the then House of Lords set aside its own earlier decision. The appeal sought that a judgement of the House be set aside because the wife of one their Lordships, Lord Hoffmann, was an unpaid director of a subsidiary of Amnesty International. Colonel Pinochet had been the subject of a campaign by Amnesty International. Needless to say the House reconvened without Lord Hoffman when it readily and unanimously decided to set aside the earlier decision on the grounds of natural justice. See Pinochet, Re (1999) (UKHL).


Today we invariably have to turn to Article 6 of the European Convention on Human Rights and the Human Rights Act 1998 for a more detailed account of the rights relating to a fair trial.


The right to a fair trial is one of a number of rights set out in the The Human Rights Act 1998. The Act came into force in the United Kingdom in October 2000 and is composed of a series of provisions that have the effect of codifying the rights and protections in the European Convention on Human Rights into UK law.


The European Court of Human Rights went so far as to say in Perez v France (2004) - "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".


The right to a fair trial applies to both criminal proceedings and civil cases. Article 6 ensures you have access to the courts and gives you the right to bring a civil case.


A fair trial will have a number of characteristics and these include:


  • The hearing must be held within a reasonable time; It is often said that "Justice delayed is justice denied" a saying attributed to William E. Gladstone amongst others. The problem with delays is that memories fade and witnesses move away and cannot be traced or may become ill and cannot give evidence.

  • There must be access to the courts and in criminal proceedings the right to legal aid if you can’t afford legal representation;

  • It is not enough that a party is able to lodge documents or petitions to the court. There must be a hearing before an independent and impartial court or tribunal properly constituted under the law and the party is entitled to be heard;

  • The individual must be allowed to present his or her case in answer to any accusation against them. This must amount to a meaningful opportunity to present his or her case or challenge the case against them;

  • In the interests of fairness and to facilitate appeals where appropriate, the court or tribunal must give reasons for its judgement;

  • There must be equality of arms between the parties which effectively means that each party must be allowed to present his case in a manner that does not put him at a disadvantage to his opponent. For example both parties have the right to be present at the hearing and in criminal cases this includes the right of the accused to participate in their criminal trial. An accused is entitled to be physically present at his or her hearing to give evidence in person and be legally represented subject only to strict exceptions;

  • There must be a public hearing and openness in relation to the administration of the trial so that members of the public and members of the press may attend. There are a number of specific circumstances when the court may exclude the public and/or the press and this includes hearings of Youth Court proceedings; in the interest of morals, public order or national security; in the best interests of a child; for the protection of the private life of the parties; it is strictly necessary in special circumstances where publicity, in the court’s opinion, would prejudice the interests of justice.

Article 6(2) also reinforces the rights with regard to the presumption of innocence by providing that it is the right of every person charged with a criminal offence to be presumed innocent until proven guilty according to law.

Finally Article 6(3) details what might be regarded as the essential ingredients of any fair trial process in criminal proceedings:

  • the right for an accused to be promptly informed of the case against him or her;

  • the right to have enough time and facilities to prepare a defence;

  • the right to legal representation, including the right to either defend oneself in person or through legal assistance chosen by the accused; for legal aid to be provided if a person cannot afford legal representation and when the interests of justice require it. In John Murray v United Kingdom (1996) the issue of the reduced right to silence and adverse inferences together with the lack of access to a lawyer at the beginning of his detention formed the basis of an application to the European Court of Human Rights. Murray had been arrested along with others in relation to terrorist related offences. The Court did not accept that he had been prejudiced by the reduced right to silence and that safeguards were in place. The Court did however take the view that the early denial of legal advice was not consistent with the European Conventions principles of fairness;

  • the right to examine prosecution witnesses and for an accused to present witnesses for their defence – this right does not prevent vulnerable witnesses from giving evidence in alternative ways, either anonymously or via video-link etc., as long as the entirety of the evidence against the accused is not presented anonymously as openness in the administration of justice is vital;

  • the right for an accused to have the free assistance of an interpreter if he or she cannot understand the language used in court.

Article 6: Right to a fair trial

The Human Rights Act | Equality and Human Rights ..

The Right to a Fair Trial | FairTrials.org

Your right to a fair trial - Citizens Advice

Human rights violations in EU countries double in five years


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