Chapter 12 Multiple choice questions

1. Article 6 is the only significant requirement for fair trials in the ECHR.

True

False

2. Which of the following are judicial decisions that would need to be compatible with the standards of a fair trial in Article 6? Please select all that apply.

The judgment of a tribunal dealing with immigration on the lawful nature of a decision not to allow a person to enter the UK.

Magistrates in a Youth Court deciding whether to impose an antisocial behaviour injunction on a rebellious teenager.

A hearing by a prison governor of a prison disciplinary offence. The prisoner had broken prison rules by protesting about a search of his cell and the opening of his letter.

The decision of a university's examinations board, which determines the degree classification of students.

3. The question of whether a trial is 'fair' or not is traditionally, and properly, the concern of the courts: it goes to the heart of the judicial function. Therefore, under the Human Rights Act 1998, UK courts are unlikely to show high levels of ……… to either the judgment of Parliament or the government on what counts as a fair trial.

4. Match the issue concerning independence or impartiality the case (ECHR or HRA) in which the issue was determined.

The system of court martial gave the 'convening officer' a significant role in organising the court martial but linked him too closely with the prosecution. Hence the system violated the independence and impartiality requirement of Article 6(1).

Applications for housing cases were heard by a local council housing officer; any appeal was made to a more senior official from the same department. This appeal process was held to lack sufficient independence (on the assumption that the housing officer was 'determining' a 'civil right' - but on that now see Ali v Birmingham 12.3.7).

Scottish temporary sheriffs owed their confirmation and promotion ultimately to the Lord Advocate; the Lord Advocate also played an important role in the prosecution of criminal offences. This system was said to lack independence as required by Article 6.

The test for the appearance of bias, bringing common law natural justice in line with Article 6 was agreed to be 'whether the fair-minded and informed observer, having considered the facts [relating to alleged bias] would conclude there was a real possibility that the tribunal was biased'.

5. Which one of the following is not likely to involve a breach of an implied right under Article 6(1)?

A criminal trial in which key evidence that might assist the defence is withheld by the prosecution. The evidence is disclosed to the judge at a hearing in which neither defendant nor any of his lawyers are present.

A drugs trial based on evidence obtained by undercover police officers. The officers had pestered a retired drugs dealer, who had not dealt in drugs for two years, to obtain drugs from one of his former contacts. When he did so, he was arrested.

The trial, in an adult court, of a child for a serious criminal offence, in which few, if any, concessions are made to the child's age or capacities.

In a civil case before a tribunal, Mr Bloggs is required to represent himself. It involves relatively straightforward issues, but Mr Bloggs presents his case very feebly. The tribunal finds against him.

6. Which one of the following statements is a correct expression of the presumption of innocence in Article 6(2)?

A defence to a crime that places an 'evidential' burden on the defendant to prove the defence is necessarily incompatible with the presumption of innocence and a breach of Article 6(2).

A criminal trial that allows a jury to base its decision to convict on the fact that the defendant refused to answer questions at the police station is a breach of Article 6(2).

A criminal trial that allows a jury to convict by taking into account evidence that the defendant was compelled to give will always be a breach of Article 6(2).

A defence to a crime that places 'legal' burden on the defendant to prove the defence is necessarily incompatible with the presumption of innocence and a breach of Article 6(2).

7. Identify the provision in Article 6(3) that is in issue (not necessarily breached) in the situation (note that these situations may also raise issues under the general right to a fair hearing in Article 6(1).

A criminal trial that is brought forward too quickly so that the defendant is unprepared.

A criminal trial in absentia (where the defendant is prevented from attending or chooses not to attend).

A refusal to allow a criminal defendant to be represented.

A criminal trial in which the prosecution is at least partly based on anonymous witnesses or on witnesses giving evidence by video link.

8. Which of these statements best expresses the law of the UK on whether a person can be deported to a country where there is a risk of a violation of a Convention right including Article 6?

A person cannot be deported to a foreign country if there is a 'real risk' that they will suffer a violation of any of their Convention rights in the country to which they are deported.

A person cannot be deported to a foreign country if there is a 'real risk' that they will suffer a flagrant violation of any of their Convention rights in the country to which they are deported; however they cannot be deported to a country in which they will suffer a real risk that they might be convicted on the basis of evidence obtained by torture in violation of Article 6.

A person cannot be deported to a foreign country if there is a 'real risk' that they will, as a matter of fact, suffer torture, cruel or inhuman treatment, or death in the country to which they are deported; nor can they be deported if they will suffer a 'flagrant' (virtually total) denial of any of their other Convention rights.

A person cannot be deported to a foreign country if there is a 'real risk' that they will suffer torture, cruel or inhuman treatment, or death in the country to which they are deported; nor can they be deported if they will suffer a "flagrant" (virtually total) denial of any of their other Convention rights. Whether these risks exist is a matter of law for the courts, including the appeal courts, to determine.

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