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Article 6 - Coggle Diagram

- - - - A change to this was confirmed in S34-37 Criminal Justice and Public Order Act 1994 which allows court to draw adverse inferences from a number of these situations:
        
        When the accused fails to mention, before or when they are charged, a fact or material piece of evidence which they later rely upon in their defence
      - Murray shows importance of right to silence but the right is not absolute as they drew negative inferences from his silence as there was weighty evidence against him
      - Condron v UK- advised by lawyer not to speak as they were withdrawing from heroin. Judge advised jury they could draw negative inferences from this and they were found guilty. ECtHR later held the judge’s direction to the jury was deficient. Judge should have told jury adverse inferences should only be drawn where the jury was satisfied D’s silence could only be sensibly attributed to their having no answer. Violated Article 6(1) and (2)
  - - - Othman v UK- The Home Secretary had sought to deport the applicant to Jordan. The ECtHR held that this would amount to a violation of article 6 because of the real risk that evidence which had been secured through torture would be used against him in the Jordanian criminal justice system. The British and Jordanian Governments then agreed a Mutual Legal Assistance Treaty in 2013 which provided various legal guarantees in relation to criminal matters including safeguards against the use of evidence secured by torture. Othman left voluntarily for Jordan soon after the treaty had been ratified
- - - - In Airey v Ireland, the applicant was the wife of a violent husband who was seeking to apply to the High Court under Irish law for a legal separation. The proceedings were complex, legal aid was not available, and the applicant could not afford to pay a legal representative. The ECtHR found that the applicant had been effectively denied access to a court, violating Article 6(1). Their decision did not provide for a general right to (free) legal aid. What constituted access to the courts would depend upon the particular facts of each case. In some cases, it might be appropriate for applicants to represent themselves, and it remained the responsibility of contracting states to adopt measures to ensure access. Legal aid was one measure, but others might include a simplified legal procedure to reduce complexity and costs
      - Benham v UK- the applicant was imprisoned for non-payment of the community charge (poll tax). He could not afford to pay for his own legal representation, he had no entitlement to (free) legal aid, and the magistrates had declined to use their discretion to appoint a solicitor. The ECtHR held that he had been denied effective access to justice. The ECtHR took into account the severity of the penalty at stake and the complexity. The applicant faced a three-year prison term, and the court found that the relevant law was difficult to understand. There had been a violation of Article 6(1), read together with the right to legal representation in Article 6(3)(c)
      - R (Gudanaviciene and Others) v Director of Legal Aid Casework and Lord Chancellor- The 'critical question is whether an unrepresented litigant is able to present his case effectively and without obvious unfairness.' This will depend on a number of circumstances, notably the difficulty of the legal issues at stake, the capability of the litigant in person, and the volume of evidence.
- - - - case facts: the ECtHR held that that the British Army's court martial system breached Article 6(1) because of the dominant and pervasive role of the 'convening officer' in the overall process. This role involved selection of charges, organisation of the hearing, and appointment of members of the court, as well as prosecuting and defencing officers. The ECtHR therefore concluded that the court-martial was not sufficiently independent of the convening officer's role
  - - - The Privy Council held that a period of 20 months between the date on which two police officers were charged with perjury and the trial was not excessive, as it was due to the prosecuting authorities conducting a thorough investigation. However, a delay of 27 months, between the date on which a 14-year-old boy had been charged with various sexual offences and the date of his trial, was excessive. The court clearly took into account the age of the boy concerned
  - - - case facts:
        
        In this case, was denied access to a lawyer for first 48 hours and therefore did not know the implications of refusing to answer questions. Law in NI at the time allowed judges to draw ‘adverse inferences’ from this.
        
        The Grand Chamber found there was importance for fairness of a trial, for the accused to have access to a lawyer in initial stages of interrogation when national law allows adverse inferences from their silence. Acknowledged that access to legal advice can be restricted when good cause for doing so but no good reasons were satisfied in this case. Violation 6(1) read in conjunction with right to legal assistance under 6(3)©.