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Crimimal Justice
A fair trial should take into account the interests of all who appear in it. The English Criminal Justice fails to do this and therefore denies many people access to justice.
Introduction:
The right to ‘fair trial’ is a very essential right in most countries which respect the rule of law. In such countries, trials that are deemed to be unfair are typically restarted or in most cases, their verdicts quashed. Most rights which are associated with fair trials are explicitly proclaimed in the Universal Declarations of Human Rights’ article 10, the 6th amendment to the constitution of the United States of America and also in the European Convention of Human Rights’ article 6 and also in other several constitutions and declarations world over. This paper explores analyses and reiterates some of the imperative aspects as far as the right to fair trials are concerned and as neglected by the English therefore subjecting the individual citizen to bear the brunt. This paper also states some of the rights to a fair trial and how they are to be applied since they are of paramount importance (humanrights.coe, 2011).
As far as the international human rights laws are concerned, rights to fair trials are enshrined in various declarations representing the customary international law like articles six, seven, eight, ten and eleven of the (UDHR). Article ten of the Universal Declaration of Human Rights enshrines basic rights to fair trials. When UDHR was first drafted, it was declared that rights to fair trials must be defined in accordance to the International Covenant on Civil and Political Rights. Even if the Universal Declaration of Human Rights protects some fair trial rights, like the presumption of the accused assumed to be innocent until proved otherwise, in articles six, seven, eight and eleven, article ten states clearly that, “every individual is entitled to full security in equality to be granted a fair trial and legally favorable public hearing by independent as well as impartial tribunal in determining his rights and also obligations of the criminal charges pressed against himâ€.
Rights to fair trials are protected by article fourteen and sixteen of the International Covenant on Civil and Political Rights (ICCPR) which binds member states legally. Article fourteen (seven) establishes the basic rights to fair trials. Article fourteen (two) gives the presumption of innocence to the accused and article fourteen (three) sets a list of the minimum fair trial rights in any criminal proceeding. Article fourteen (five) establishes rights of convicted persons to have higher court review convictions or sentences and finally article fourteen (seven) prohibits double jeopardy while article fourteen (one) states that:
“All persons are equal before the courts of law and tribunals. In determination of criminal charges pressed against a person, or his/her rights and obligations in suits at law, everybody should be entitled to free and fair trial and public hearing by an independent, impartial and competent tribunal established by law. For reasons of morals, national security or public order, the public and the press may be locked out of all or part of the trial in a democratic society or when interest of private lives of concerned parties so requires or even to the extent which is strictly applicable in the opinion of the judge or a court of law in that case under special circumstances where the presence of publicity can prejudice interests of justice but judgments’ rendered in criminal cases or in suits of law shall be publicized except on matters where interests of minors requires proceedings concerning the matrimonial disputes or guardianships of minorsâ€. (jsijournal.ie, 2008).
The Fair Trial Rights
The rights to a fair trial are defined in a number of regions as well as the International Human Rights Instruments. It is among the most extensive human rights and the entire international human rights instruments protect it in numerous articles. The right to fair trial is among the most litigated human rights and as a result, substantial case laws have been established on the interpretations of such a human right. Despite the variations in the wording and the placement of some fair trial rights, the international human rights instrument terms the right to a fair trial in broadly mutual terms. The objective of the right is to facilitate proper administration of justice. Minimally, the right to fair trial encompasses the following fair trial rights in both civil and criminal proceedings.
· The right to be heard by an independent, competent and impartial tribunal.
· The right to public hearing
· The right to be listened to within a reasonable time
· The right to attorney or the right to legal representation and
· The right to interpretation
Governments may limit rights to or in any case derogate from the fair trial rights under circumstances which are specified in the instruments of human rights.
The Right to a Fair Trial in Criminal Proceedings
· The right to be notified of the charges which they have been accused of and in a timely manner.
· The right to sufficient time and for a preparation of a defense.
· The right of the accused whereby he or she is given a chance to defend himself or herself and therefore given a chance to a counsel of his or her choice and also the right to private communication with the counsel.
· The right against the incrimination of oneself
· The right to appeal at the initial instance to higher court of appeal and
· The right to the eradication of double jeopardy on the accused.
Rights to a Fair Trial in Civil Proceedings
The European Court of Human Rights as well as the Inter-American Court of Human Rights have both clearly clarified that rights to fair trials rights to fair trials applies to the entire systems of judicial proceedings whether criminal or civil. Article six of the European court of human rights of the European Convention on Human Rights and fair trial rights applies to all the civil rights and also the obligations which are created under the domestic law and then to all the civil proceedings (Yourrights.org, 2008).
The Right to Fair Trial in Administrative Proceedings
Both civil Inter-American Court of Human Rights and the European Court of Human Rights have clarified that right to fair trials is applicable not only to judicial proceedings but to administrative proceedings as well. For if the individual’s right under the law is at stake whatever dispute it is must be conducted through a fair process (Walsh, 2010).
The Right to Fair Trial in Special Proceedings
In the United Kingdom, special proceedings may also be subject to article six of European Convention on Human Rights. In mills v. the United Kingdom in two thousand and one for instance, the European Court of Human Rights stated that the court martial was subject to article six since the perpetrators had been accused of the crime which the court termed as serious, assault with weapons and also wounding. The African Commission of People and Human Rights (ACHPR) regularly deal with cases where civilians are tried by military tribunals following the commission of serious crime. The African Commission on Human holds on that the face of its military courts does not satisfy the rights to a fair trial towards civilians (the constitutional rights project v. Nigeria). In this respect, African Commission on Human and peoples’ Rights has already reaffirmed the right to counsel or fair representation to be imperative and essential when guaranteeing fair trial. The African Commission on Human and peoples’ Rights held that that everyone has the right to choose their own counsels and therefore giving military tribunals rights to veto any counsel who violates rights to fair trials (Campbell, 2010).
Impeding a Fair Trial
The right to fair trial may be impended by:
· The contempt of court
· The intimidation of the witness and
· The non disclosure of evidence either through malice or abuse of the State Secrets Privilege.
According to abouthumanrights.co.uk the main piece of human rights legislation in the United Kingdom is the Human Rights act nineteen ninety eight which effects most of the European convention on Human Rights. Parts of the European Convention on Human Rights are set by the Human Rights Act and which became law in the United Kingdom when that act came to force in October the year two thousand. The European Convention on Human Rights is divided into articles which help to set out fundamental rights and also freedom deemed to be commonest to everybody (fairtrials.org.uk, 2011). Article six of the European Convention on Human Rights gives the right to fair trial and also article seven contains in it the right of an individual not to be punished without the application of law. Under the terms of the European Convention of Human rights and the United Kingdom human rights law that is derived from it, individuals have rights to
· Prompt and fair hearings by impartial and lawful tribunal. In that case, hearings should be made open to the public to pave way for justice to be exercised fully. However, article six clearly states that hearings can be held partly in private or wholly if considered necessary and if there is a reason to do so. For instance. For instance, it might be applicable in cases of national security reasons, and since the trial involves juveniles or when protecting the interests of justice. The right to a fair trial doesn’t only apply to a court of law but it also applies to other tribunals, decision making processes which involves individuals’ private rights. The rights to a fair trial may also include rights to legal aids where it is necessary in order to ensure the person receives a fair trial. However, the rights to legal aid civil matters are very limited (telegraph.co.uk, 2011).
Limits to the Right
Everyone has the right to access justice meaning that he has the right to a case himself. However this kind of right is not absolute more especially in relation to matters pertaining to civil. A person can be prevented from starting cases if for instance it has been left for too long in so doing or if he has a history of starting such cases which have no legal merit (mg.co.za, 2010).
Criminal Cases
The legal standards which are expected whenever an individual is being charged with criminal offences are a bit higher than in civil cases. Such rights include:
· He has a right to be presumed innocent until proven otherwise
· He has a right to have the case against him explained to him in a language and way that he understands better
· He has the right to question the witnesses who are giving evidence against him and he as well has the right to call his own witnesses
· He has a right to be provided with an interpreter if need be.
According to Gordon, the context of minimum standards, between the criminal justice systems, it states that the determination of criminal charges on an individual shall not be intimidated or compelled to testify against himself or to confess that he is guilty (Gordon, 2010)
However, Barnett reiterates that those individuals who are accused of any wrong doing should be given sufficient time during trial to prepare for their defence and they also have a right to free legal assistance when interests of justice requires so (Barnett, 2010)
Civil Cases
For the purposes of human rights law, the civil cases are those involving individuals private rights or in cases where public authorities are exercising their powers in ways which affect peoples’ private rights. Some of these cases may include cases or hearings that involve the planning decisions family laws or employment issues. Many civil cases are not covered by rights which are contained in article six of the European Convention on Human Rights. For instance, the right to a fair trial doesn’t cover the cases which involve tax issues or immigration but an individual can be entitled to similar rights but under a different piece of United Kingdom legislation. Laws concerning applications of human rights acts to civil matters are complex and individuals who believe that they can have such claims should seek legal redress and advice before they can proceed (Verkaik, 2010).
The Right to Punishment without Law
Under articles seven of the European Convention on Human Rights:
· An individual has the right not to be convicted retrospectively of a criminal offence for failing to do something or for doing something which was by that time a criminal offence
· He also has the right not to be given the strictest penalties or sentences for criminal offences rather than the maximum penalties which could have been imposed by the time the crime was being committed.
In principle, it is an absolute right even though article seven goes deeper to state that individuals may be convicted of offences if the acts, whilst not contrary to the law of a country where the offence took place was contrary to the laws of civilized nations. This can be applicable in cases where individuals are being tried for war crimes in accordance to acts which were not deemed to be criminal in their own countries by the time they were being committed (Abouthumanrights.co.uk, 2010).
Conclusion:
Every human being is who has been involved in any wrong doing and therefore brought to trial is presumed to be innocent unless proven otherwise and his rights must be respected as a human being. Countries around the world including the United Kingdom must try and exercise fair trials on all the persons who are brought to trial. The organizational bodies of human rights basis must also be listened to enhance the proper application of the law since they are the voices of the voiceless and therefore they should not be ignored at whatever circumstances. International Court of Justice must also intervene to regulate not only the application of justice to the people who are tried internationally but they should ensure that justice is being served properly at national levels.
References:
Abouthumanrights.co.uk, (2010): The Right to a Fair Trial to No Punishment Without Law. Derived January 7, 2011 from http://www.abouthumanrights.co.uk/right-fair-trial-no-punishment-without-law.html Barnett, H. (2010): Constitutional and Administrative Law. Taylor and Francis group, New York. Campbell, G. (2010): When Justice Fails. Derived January 7th 2011 from http://werewolf.co.nz/2010/08/when-justice-fails/ fairtrials.org.uk, (2011): Fair Trials UK. Derived January 7th 2011 from http://www.fairtrials.org.uk/fair-trial-uk.html Gordon, F. (2010): Human rights in the United Kingdom. OUP. New York. humanrights.coe, (2011): The right to a fair trial. Derived January 7, 2011 from http://www.humanrights.coe.int/Intro/eng/GENERAL/trial.htm humanrights.org, (2011): What is the right to a fair trial? Derived January 7, 2011 from http://www.humanrights.is/the-human-rights-rpoject/humanrightscasesandmaterials/comparativeanalysis/therighttodueprocess/rights/jsijournal.ie, (2008): Right to a Fair Trial in Criminal Matters. mg.co.za, (2010): Mail and Guardian Online. Derived January 7th 2011 from http://www.mg.co.za/article/2010-12-22-justice-failed-anni
telegraph.co.uk (2011): The Telegraph. Derived January 7th 2011 from
http://www.telegraph.co.uk/news/worldnews/europe/netherlands/8081422/Geert-Wilders-trial-faces-restart-after-judges-dismissed.html
Verkaik, R. (2010): The Independent. Derived January 7th 2011 from
http://www.independent.co.uk/news/uk/crime/european-judges-say-m25-gang-denied-a-fair-trial-706139.html
Walsh, C. (2010): UK: Fair Trial Principles to Be Phased Out. Derived January 7th 2011 from http://www.allvoices.com/contributed-news/6507424-uk-fair-trial-principles-to-be-phased-outYourrights.org, (2008): Your Rights. Derived January 7, 2011 from
http://www.yourrights.org.uk/yourrights/the-human-rights-act/the-convention-rights/article-6-right-to-a-fair-trial.html
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