After examining the right to liberty and security last month, this time I was planning to turn the focus on the right to a fair trial. However, after careful consideration I thought I should include the right to no punishment without law in this post too.
Together the right to a fair trial and no punishment without law make up articles 6 and 7 of the Human Rights Act and, at least in theory, these are the two articles that stand in the way of Kafka’s The Trial becoming a reality.
Article 6 sets out that everyone entitled to a fair and public hearing within a reasonable time by an independent body and that anyone charged with a criminal offence will be treated as innocent until proven guilty. They will also be informed of the accusations against them, given an opportunity to defend themselves with the offer of legal assistance, to be able to call and examine witnesses for and against them, and to have an interpreter if required. Meanwhile, article 7 sets out that no one will be found guilty of anything which was not a criminal offence at the time of the act.
I feel very conflicted about article 7. I once heard about a man who had raped his wife in the early eighties. They had later divorced and, years after, she reported what he had done. He admitted it and said he sincerely regretted what he had done, but he did not plead guilty because, at the time he did it, it was not against the law. What he did was clearly morally wrong and reprehensible to say the least. I have no sympathy for what he did. But at the same time, he was found guilty of something which was not against the law at the time he did it. The reason I think his conviction should have been overturned is not because I think he deserved that on any moral level, but because of the precedent it sets if the conviction stands.
What if other things are made illegal in the future? Will we begin convicting people retrospectively across the board? What about if a future government legislates against smoking? Will everyone who used to smoke be fined? Will the owner of your local corner shop be sent down for possession with intent to supply? Will the manufacturer be imprisoned for causing the death of millions?
And the same applies to anything that might be made illegal in the future. If we allow article 7, no punishment without law, to fall apart, we make potential criminals of every single member of society.
Meanwhile, fair trials have been a bone of contention since the millennium. With the introduction of terrorism legislation enabling trials to take place where the nature and extent of the prosecution’s evidence is not even disclosed to the defendant, the question has to be asked whether article 6 still stands at all.
But the majority of cases affected by article 6 are not terrorism cases, or even criminal law court cases, at all. In 2010 a case was brought to the European Court of Human Rights by two Moldovan prisoners in Portugal who had been placed in solitary confinement in high security cells of just eight square metres. The order for this action was never issued to them, and nor was a subsequent order extending the time they should spend in these conditions. They complained but were told nothing of any proceedings arising from this. The Court ruled that the jurisdiction of the orders was questionable, and even if it were valid, the orders had not been provided to the prisoners so they had not been given a full opportunity to challenge the measures they were subjected to. In other words, they had not been given a fair and public hearing.
In another case, two prisoners here in Britain took a case when they were refused free legal assistance in relation to two adjudication charges where they could have had additional days added to their sentence by the prison governor. The court ruled that anyone who may lose their liberty, or have the loss of their liberty extended, has the right to free legal assistance and upheld their claim.
Similarly, another British prisoner who took a case after being found guilty of an adjudication argued that his article 6 rights had been breached since he had not been told of the existence of witnesses or given the opportunity to question them as part of his defence even once their existence was finally disclosed. The court ruled that any hearing which does not permit the accused to examine witnesses is fatally flawed and they overturned his guilty verdict.
But what if these three rulings had gone the other way? What if they were applied to the wider world and not just to prison adjudications? What if a warrant was issued for your arrest and you were taken in and held in solitary confinement but never told why you had been arrested or given an opportunity to challenge the order? What if you were placed on trial but denied legal representation and never told about witnesses who could verify that you were not the guilty party or given the chance to question them? What if this meant you spending years behind bars?
If you allow article 6 to disappear because it has resulted in favourable rulings for prisoners you might not necessarily like, it will not be there to protect you when you need it to. And if you let article 7 get taken away because it means that atrocious acts committed in less enlightened times go unpunished, then you open yourself up to the possibility of punishment in the future yourself.
These articles exist for a reason, and there is no article that could do the job better than the current ones do already.