Article 6 of the European Convention on Human Rights has profoundly changed the Common Law (UK). One can now correctly speak of the common law respecting the human right to a fair trial.
Consideration of whether Article 6 of the European Convention of Human Rights has impacted the Common Law of the United Kingdom demands the discussion of certain relevant statutory interpretations of EU Law, interpretations of the UK Common Law, and certain academic commentaries. What does become clear, however, is that the issue of whether there exists a human right to a fair trial is undoubtedly both a legal topic and a sensitive political one – the law has been under put under great scrutiny by politicians!
The purpose of this essay is to examine if the Common Law in the United Kingdom affords the right to a fair trial. To illustrate this point, I shall focus on cases where there has been use of closed material evidence in a trial. I have decided to limit the scope of the fair trial principle to this area for the reason that it is one that is both constantly evolving and one that has gained a great deal of attention in the UK and the world at large.
As a preparatory exercise, I will discuss the background pertaining to the European Convention on Human Rights (‘ECHR’) in relation to the law of the United Kingdom. Next, I will examine the aforementioned laws in further depth with reference to specific cases.
What does the ECHR Do? What is a fair trial?
The Human Rights Act (1998) integrated the ECHR Law into local law in the UK. It came into existence in November 2000. What has become apparent since its enactment is that almost every noteworthy decision in the Court of Appeal in both England and Wales has involved a serious discussion and adoption of the ECHR Laws. The ECHR Law has been integrated into the UK legal system and judiciary with a high degree of importance and, at times, praise – albeit one open to wide interpretation. On the other hand, when it was introduced, it lead to a fruitful merger between the ECHR Laws and Common Law decision making in the UK; various examples of the ability of the ECHR Laws is their ability to hamper some of the most serious civil and human rights abuses, as witness by the time when the Blair Government held office.
The UK, unlike, for example, in the United States of America, is clearly impacted by international human rights laws and norms. Such laws have an immediate impact on Common Law decisions on rules of evidence and criminal procedure in the United Kingdom. The most influential is, of course, the authority of the European Court of Human Right (‘EctHR’) which applies and makes rulings on the ECHR Laws. Lawyers in the UK have been certainly creative and entrepreneurial in their approach to the ECHR Laws and the ECtHR. What is clear, however, is that participants in the legal system in the UK have far greater scope to affect English criminal procedure using ECHR Law rather than the existing common law.
The British legal systems – both legislative and common law – have been acknowledged as offering systems of law that are, in general, equitable and just. The notion of the right to an equitable and fair hearing has been a fundamental aspect of the British legal system for centuries. That said, however, the scope and limited of a fair and equitable hearing have been subject to considerable change and debate over the past few centuries. The long-standing principle of an equitable fearing is mirrored in Article 6 of the ECHR. The importance, both as a legal procedure and legal notion, is clear. Criminal trials are mostly held in the domain of public life. By this, I mean that criminal hearings impact more broadly on the general public than, say, an obscure contractual dispute. For this reason, the UK has established various institutions which have enhanced and integrated the right to a fair hearing.
That said, the broad-reaching institutional frameworks supporting the practical application of Article 6 of the ECHR make it evident that the UK is not meeting its legal obligations legislated by the Convention. What is required is an analysis of whether the current institutions and frameworks put in place laws to encourage both protection and compliance of Article 6. The pronouncements made in the higher courts in the UK make it clear that that not all judges and legal institutions have been equally enthusiastic about their approach to human rights and civil liberties. I shall now move on to an examination of the right to a fair hearing in cases where there is use of evidence involving confidential intelligence material.
Closed Material Procedures
Closed material procedures were introduced to the UK in 1997 in the matter of Chahal v UK. Under a closed material procedure, the defendant and his or her lawyer or barristers are not privy to any part of the matter where closed material is heard. In other words, it is able for the authorities to claim some proof is ‘confidential’ and hence from this conclusion it is then not open for the defendant to scrutinise this evidence.
It is clear that closed evidence procedures certainly violate the right to a fair hearing because the defendant is not aware of the allegations against him or her. It was stated in Ruiz v Spain at para 62: ‘The right to an adversarial trial relates to the ability for the plaintiffs and defendants to have knowledge of and remark on the particulars or evidence adduced by the other party’. The use of closed evidence is thus probable to lead to the person being subject to closed evidence to have an unjust trial and hence will be in violation of Article 6. Such closed material cases have been used most dividingly in Terrorism Prevention and Investigation Measures notices, where evidence from intelligence is widely used. In this background, the system of closed material cases has been question in a serious of cases in the House of Lords: Secretary of State for the Home Department v AF (No 3). Here, the legal issue was focused upon if a person under a control order had the right to be made aware of enough details of the case made against him, or if, on the other hand, it was feasible to have a fair trial without knowing precisely what evidence was being used against the defendant.
Applying Article 6, it was clear in the matter of A and other v UK that the House of Lords decided, without objection, ensuring the right to a justiciable hearing under Article 6 involved ‘sufficient information’ about the matter made against the defendant must be clear. Furthermore, despite the matter of Secretary of State for the Home Department v AF (No 3)  outlined the aforesaid principle, there still remain various practical complexities in divulging this information. Several bodies and commentators have suggested that the government makes changes to this law to clear any existing confusion. Chief amongst them has been the Joint Committee on Human Rights (JCHR). The JCHR advised that the government to make allowance for the right to a fair trial under Article 6. The UK government rejected this advice and asserted that the Prevention of Terrorism Act must be understood in conjunction with the Human Rights Act and the decision in Secretary of State for the Home Department v AF (No.3). To counter this, the Coalition instigated an assessment and evaluation that stated the control orders ought to be banned. The Terrorism Prevention and Investigation Measures Act 2011 outlawed control orders and replaced them with ‘terrorism prevention and investigation measures’. This legislation, however, still only provide for the integration of Article 6 in only general terms. Instead, it relies upon the common law to deduce the law. This is another example of how the Convention has still not had far reaching impacts upon common law decision making, given the wide-reaching impact of judicial activism.
Specifically, the matter of Al Rawi & Ors v Security Service & Ors, the UK government aimed to prolong the closed trial mechanisms to basic civil cases where confidential evidence strengthened the government’s arguments. Al Rawi and the other plaintiffs were held by non-UK governments. The defendants all claimed that the government of the UK ought to be held liable for the alleged abuse they had been subject to. The defendants’ arguments in this matter relied upon the assertion that the information was far too confidential to privy to scrutiny by the plaintiffs. The Court, however, here decided that such an argument was in conflict with the long standing principles of a fair trial. Moreover, the Court stated that it was not in the Government’s discretionary powers to act in a manner that did not respect the right to a fair trial.
Unfortunately, however, there appears to be a trend with the use of closed material cases becoming more prevalent in common law decision. The case of Tariq v Home Office  UKSC 35 affirmed the closed material argument in the common law yet again.
It is evident that the ECHR Convention has bestowed upon the UK’s Common Law directly. The Convention established a legal requirement upon the executive and the judiciary to act in respect with the Convention and to construe the Common Law in line with these laws. The Convention ought to be seen with respect and should be implemented with the same principles and spirit which founded the Common Law. It is an opportunity to apply basic fair trial principles from another perspective, namely the European Union. The UK Common Law decision make it clear that the Conventions have been implemented, despite that fact that there has been objection – both from a legal standpoint and a political standpoint – that the UK should be less influenced by external legal systems.
The main question for the future will be how the UK courts use the Convention in openly and the spirit of its framers, given the increasing broader scope of judicial interpretation.
A and Ors v Secretary of State for the Home Department  UKHL 56.
Al Rawi and Ors v Security Service  UKSC 34.
Al Rawi & Ors v Security Service & Ors  EWCA Civ 482.
Al Skeini and Ors v Secretary of State for the Home Department  UKHL 26.
Brandsetter v Austria  15 EHRR 378.
Chahal v UK  23 EHRR 413.
Ruiz v Spain  6 EHRR 505.
Secretary of State for the Home Department v AF (No 3)  2 AC 269.
R Clayton, H Tomlinson, The Law of Human Rights (Oxford University Press, Oxford, 2000).
S Greer, The European Convention on Human Rights: Achievements, Problems and Prospects (CUP, Cambridge 2006).
DJ Harris, M O’Boyle, C Warbrick, Law of the European Convention on Human Rights (2nd ed., Butterworths, London, 2007).
3. Command Papers and Law Commission Reports
Her Majesty’s Government, Review of Counter Terrorism and Security Powers: Review Findings and Recommendations (Cm 8002, HM Government).
4. Other Sources
A Von Staden, Shaping Human Rights Policy in Liberal Democracies: Assessing and Explaining Compliance with the Judgments of the European Court of Human Rights, Dissertation, Princeton University, 2009
 A and Ors v Secretary of State for the Home Department  UKHL 56.
 Harris, D.J., O’Boyle M. and Warbrick,, C., Law of the European Convention on Human Rights (2nd ed., Butterworths, London, 2007), 212.
 Clayton, R. and Tomlinson, H., The Law of Human Rights (Oxford University Press, Oxford, 2000), 11.225.
 Al Skeini and Ors v Secretary of State for the Home Department  UKHL 26.
 S Greer, The European Convention on Human Rights: Achievements, Problems and Prospects (CUP, Cambridge 2006) Ch 4..
  23 EHRR 413.
 See, for example, Al Rawi and Ors v Security Service  UKSC 34 at para 12; Al Rawi [EWCA] 482 at para 68; and Brandsetter v Austria  15 EHRR 378.
  6 EHRR 505.
  2 AC 269.
 Von Staden, Andreas, Shaping Human Rights Policy in Liberal Democracies: Assessing and Explaining Compliance with the Judgments of the European Court of Human Rights, Dissertation, Princeton University, 2009.
 2 AC 269.
 Her Majesty’s Government, Review of Counter Terrorism and Security Powers: Review Findings and Recommendations (Cm 8002, HM Government).
  EWCA Civ 482.