What makes for a fair trial?
By Dr Ryan Goss
July 2005 was a tense time in London. The terrorist attacks of 7/7 killed many. A couple of weeks later, on 21 July, there was an attempt to perpetrate another terrorist bombing. Four bombs were placed on a London bus and underground trains. The bombs were detonated but, due to an inadequate concentration of hydrogen peroxide, they failed to explode.
A manhunt ensued. After their apprehension, four of those involved were interviewed by police, in the absence of a lawyer and before having had access to legal advice. The would-be attackers were ultimately convicted, as was another man who had sheltered one of the attackers during the police hunt.
These events, more than a decade old now, led to the recent decision of the European Court of Human Rights in Ibrahim v United Kingdom. In the decision, handed down in September 2016 by the Court’s Grand Chamber, the judges considered the would-be attackers’ argument that they had not had a ‘fair trial’ within the meaning of Article 6 of the European Convention on Human Rights.
More specifically, the would-be attackers also argued their treatment in the police interviews meant they had been denied their right to legal assistance under Article 6(3)(c) of the Convention. For the most part, the would-be attackers’ arguments were unsuccessful.
The decision was legally significant, concerning one of the most heavily litigated provisions of a very heavily litigated human rights convention, with consequences for all 47 countries under the Court’s jurisdiction. But the judges’ decision also raised much bigger questions for all of us: what do we mean when we ask whether a criminal trial is ‘fair’?
Is ‘fairness’ the same regardless of whether someone is on trial for terrorist offences or, say, for shoplifting? Should courts allow governments to make use of a different standard of fairness for those accused of terrorist offences?
Answering these questions caused some disagreement for the 17 judges comprising the Grand Chamber in Ibrahim; no fewer than seven judgments were delivered by differing combinations of judges. In a sense, the dispute revolved around what question the Court should be asking: should the Court look specifically at the denial of legal advice during police questioning and ask whether that violated the Article 6 rights of the arrested men? Or should the Court look at the overall criminal trial and ask whether the ‘proceedings as a whole’ were fair under Article 6?The latter question would be more favourable to the UK government’s argument; the former question would be more favourable to the would-be attackers’ argument.