2.1 Problem-solving
Being able to solve problems is an important skill. Problem-style questions require learners to identify and explain the correct legal principles and to use their reasoning skills to apply the law to facts of the problem-style question. That is a skill that needs to be practised and Activities 2 and 3 provide an opportunity to do this.
Problem-style questions invariably present a hypothetical set of facts and involve one or more legal issues and are often based on existing case law. When approaching a problem-style question you should:
- read the question carefully
- read the law carefully
- analyse the facts you have been given
- apply the law to the facts you have been given
- organise your answer carefully.
Problem-solving is important in law as one of the ways in which law is used is to resolve problems. Activity 2 asks you to read the law: Article 6 of the European Convention on Human Rights (ECHR). Activity 3 then asks you to apply that knowledge to reach a conclusion.
Box 1 Article 6 ECHR
ARTICLE 6
Right to a fair trial
- In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
- Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
- Everyone charged with a criminal offence has the following minimum rights:
- a.to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
- b.to have adequate time and facilities for the preparation of his defence;
- c.to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
- d.to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
- e.to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
Activity 2 The right to a fair trial: Article 6 ECHR
To complete this activity you will need to carefully read Article 6 of the ECHR in Box 1 above. Once you have read Article 6 and familiarised yourself with the rights it contains, answer the questions that follow.
Questions
- a.What rights are outlined by Article 6(1)?
- b.What does Article 6(1) say about judgment?
- c.What is the presumption of innocence?
- d.What minimum rights are contained in Article 6(3)?
Comment
The answers we gave to the questions were as follows.
Question a.
In any civil or criminal matter everyone is entitled to a fair and public hearing. The hearing must take place within a reasonable timescale. The hearing must be before a court or tribunal which has been properly created and is independent and impartial. (I also noted that ‘reasonable time’ is not defined, nor are the words ‘independent’ and ‘impartial’.)
Question b.
The starting point is that the judgment of the court or tribunal should be given publicly. In certain circumstances, however, the press and public may be excluded. The list of circumstances ranged from public order, in the interest of morals, national security, in the interests of young offenders, and for the protection of private life, where it would be prejudicial to the interests of justice.
Question c.
The presumption of innocence means that until someone is found guilty according to the law they are presumed innocent. There was no definition of ‘according to the law’.
Question d.
The minimum rights are to:
- be informed promptly of the charge they face in a language they understand
- be informed of the nature of the charge and the circumstances leading to the charge
- have adequate time to prepare a defence
- provide a defence, either in person, through legal assistance of their choosing, or with the help of free legal assistance (which is provided when the interest of justice requires legal representation)
- examine witnesses (both for and against them)
- ensure all witnesses are to be treated in the same way
- have an interpreter if they cannot speak or understand the language of the court.
You should now attempt Activity 3.
Activity 3 What amounts to a fair trial?
Using the knowledge gained from Activity 2, read each of the scenarios that follow. Based on your knowledge of Article 6, decide in each scenario whether there has been a breach of that article.
- a.Ben is found guilty of theft. He complains that the judge frequently interrupted, both when he was giving evidence and when his defence advocate was questioning witnesses. The court record shows that there were numerous interruptions. The case goes to appeal. Is Ben’s conviction unsafe?
- b.A government minister drafts some legislation. A few years later the minister becomes a judge and hears a case which involves discussion of the legislation they drafted. Should they hear the case?
- c.Melanie brings a case against her employer to an employment appeal tribunal (EAT). She finds out that the advocate representing her employer also sits as a part-time chair of an EAT. She discovers that in their role as chair of the EAT the advocate had previously worked with the lay members of the tribunal which was hearing her case. She is concerned that the lay members may be biased when hearing her case.
Comment
Each of the scenarios was based on facts considered by the courts. Their decisions were as follows:
- a.The facts are based on CG v UK [2002] 34 EHRR 34. The case was heard by the European Court of Human Rights (ECtHR). The ECtHR took account of the appeal and made a careful examination of the case. It found that there were interruptions; some of these were due to misunderstandings but they had not interrupted the flow or development of the defence case. The ECtHR held by a majority that Article 6 had not been breached. In our scenario Ben’s conviction would not be unsafe.
- b.The facts here are based on Davidson v Scottish Ministers [2004] UKHRR 1079. The case came before the House of Lords. Here Lord Hardie had been a government minister. As part of his role he helped draft and promote a piece of legislation. When he subsequently became a judge he was required to rule on the effect of the legislation he had drafted. It was held that he should not hear the case because of the risk of bias. There were concerns that he may subconsciously try to give a result which would not undermine the assurances he had given when promoting the legislation. The court made it clear that this cast no aspersions on Lord Hardie’s judicial integrity. In our scenario the judge should not hear the case.
- c.The facts are based on similar facts in Lawal v Northern Spirit [2003] UKHL 35, whereby an advocate who had returned to his own practice having been chair of an EAT found himself appearing as an advocate before lay members of an EAT, with whom he had worked previously as chair of an EAT. An objection was made. The matter was considered by the House of Lords. They held that lay members would look to the chair for guidance on the law and could be expected to develop a close relationship of trust and confidence with the chair. There was no finding of the rule against bias. In our scenario it is unlikely there would be a finding of bias. You may be interested to know that in the case the House of Lords also ruled that having barristers and advocates sitting as part-time chairs of EAT (which meant they were, in effect, part-time judges) should be discontinued, to ensure that there was no possibility of unconscious bias on the part of lay members in such situations and to ensure that public confidence was not undermined. The practice has now been discontinued.