Right to representation at domestic tribunal - common law and ECHR art 6 - Essay Example

? Right to Representation at Domestic Tribunal- Common Law and Article 6 of the ECHR Table of Contents I. Introduction 3 II. Discussion 4 III. Conclusion 7 Bibliography 8 I. Introduction This paper is an evaluation and a discussion of the extent of the legal right to representation before a disciplinary or administrative body or a tribunal, as reflected in common law and Article 6 of the European Convention on Human Rights or the ECHR. Under Article 6 of the ECHR, all have the right to a fair and public trial in cases that are both civil and criminal in nature, “within reasonable amount of time”, and “by an independent and impartial tribunal established by law”. Moreover, for those who are charged with the commission of a crime, Article 6 contains a provision for a defendant to choose legal counsel or to have one given to the defendant for free if defendant is unable to provide the financial means to procure his own counsel, and “when the interests of justice so require”. The defense can also be undertaken by the defendant on his own capacity and in his own person 1 That said, Article 6 does not contain an express provision for the right to representation for civil cases. 2 On the other hand, there are cases where the European Court of Human Rights has ruled that in some cases, as when the litigation involves complexities that the defendant is unable to understand completely to the point of being able to ably defend himself or herself and no representation was given to the defendant, that act of not providing representation is deemed to have been a violation of Article 6. The findings of the court with regard to the proper interpretation of Article 6 of the ECHR is that legal aid must be given even in civil cases, where “legal representation is compulsory”, as when the case is complex or the nature of the case itself demands legal representation, or when the defendant has limited abilities to undertake his or her own defense. 3 Moreover, with regard to the coverage of the right to a fair trial, Article 6 expressly includes determining the rights and obligations of people from a civil point of view as within the coverage of the Article, so that areas such as the rights related to property, right to undertake commercial acts, and others are deemed to be included within the scope of the Article. 4The rest of the paper continues this evaluation of the extent of the right to legal counsel in tribunals, taking off from this Introduction and the discussion on Article 6 of the ECHR to consider the common law basis, extent and boundaries of legal representation in domestic tribunals as reflected in common law. 5 II. Discussion In Regina v. Home Secretary, ex parte Tarrant and others, 1985 there is common law precedent with regard to considering the merits of a case relating to the right to counsel for a person already in prison, but was to face possible disciplinary sanction within the prison system. That proceeding to determine whether sanctions were to be meted to the prisoner for disciplinary reasons tackled the reasons for a prisoner in such circumstances being provided the proper access to legal counsel/representation. Those considerations were the gravity of the charge as well as the gravity of the potential sanctions or penalties; whether legal points were to surface and the likelihood of that surfacing; the prisoner’s own capacity for self-representation; difficulties relating to procedure and how well the prisoner is to handle that; the mandate that the charge had to be determined with reasonable swiftness; and the mandate for fairness to rule the relationship between those who are imprisoned and the staff in charge of overseeing them. The case demonstrates common law bases for determining the conditions wherein the right to counsel is acknowledged, where the prisoner in question is to face a tribunal within the prison system. 6 Elsewhere we see that the right to representation is essential to a man who is untrained in the ways of the law and of the proceedings to which he may be subjected to in a court of law, which is the case for majority of citizens in a state, as has been argued by Lord Denning in Pett v GRA [1968] 2 All ER 545, cited by Nsereko. In this line of reasoning the right to counsel springs also from the inadequacies of the common man to ably reason out in court, even when he is given the liberty to represent himself, and in contrast to which the special skills of a lawyer ably fills the role of being the spokesperson on behalf of the accused, being trained for exactly that purpose. 7 On the other hand, common law also contains precedents where the invocation of the right to counsel before a domestic tribunal is denied, arguing that in some cases, domestic tribunal proceedings that are conducted without legal representation, and done in an informal fashion, is the right way to go, and a good way to conduct such proceedings. This is the ruling for instance in Enderby Town FC v FA [1971] 1 All ER 215, with the caveat that such rulings that dismiss petitions for the right to counsel do not have universal application, but are handed down on a discretionary, case to case basis as it where, depending on the merits of the case. Be that as it may, the case sets common law precedent where the invocation of the right to counsel is not always granted and recognized by the courts to be operative.8 Meanwhile, precedent also exists where practitioners of trades, such as doctors, who face proceedings in hospitals that may result in professionals losing their right to continue to practice their trades are entitled to legal representation as mandated by Article 6 of the ECHR, as discussed earlier in this paper. This ruling was made in the case of Kulkarni v Milton Keynes Hospital [2009] EWCA Civ 789, where Dr. Kulkarni was deemed having the right to legal representation in a disciplinary hearing whose outcomes could have those serious implications for the ability of the doctor to continue his medical practice. Here is an instance where there is a strong suggestion of the ECHR’s Article 6 being applicable and operative in weighing the merits of the case and deciding on the case outcome. 9 The above reasoning and judgment in common law is corroborated by other precedents, as in the case of R (G) v X School Governors [2010] EWCA Civ 1, where the court recognized the right of an accused to legal representation in a disciplinary proceeding before a school tribunal had the potential impact of placing the concerned defendant, a teacher, of being tagged in a list of teachers who are barred from being employed in their profession moving forward. This right to representation in this case stems from Article 6 of the ECHR, as in the prior case. 10 Meanwhile, precedents where the right to legal representation extended not just to normal justice courts but to courts or tribunals that meted disciplinary punishments to those already serving jail terms exist, and involving the right of prisoners to have legal representation in such cases where the offenses inside the prisons that merited the disciplinary sanctions could be considered within the ambit of protections/right to fair trial and counsel in Article 6 of the ECHR. 11 III. Conclusion It is clear from the above discussion that there are fundamental legal bases in Article 6 of the ECHR as well as in common law for the right to representation in domestic tribunals, where the definition of the tribunal extends beyond the ordinary courts of justice to include work tribunals and prison tribunals that mete out punishments and sanctions. Common law precedents provide a good legal foundation for the bounds and application of the right to legal representation, some based on interpretations of Article 6 of the ECHR as they apply to specific cases and circumstances. 12 Bibliography Ellis, J., ‘Challenging disciplinary decisions’, Charles Russell [2010] accessed 25 November 2013 European Court of Human Rights, ''European Convention on Human Rights' [1950] accessed 25 November 2013 Equality of Human Rights Commission, “Article 6: The Right to a fair trial” Human Rights Review 2012 250 accessed 25 November 2013 G, R (on the application of) v X School & Ors [2010] EWCA Civ 1 accessed 25 November 2013 Jallad, T., 'A Civil Right to Counsel: International and National Trends', UNC Center n Poverty, Work and Opportunity [2009] 11-13 accessed 25 November 2013 Liberty Today, 'Article 6 Right to a Fair Hearing' Liberty [n.d.] accessed 25 November 2013] Nsereko, D., ‘The Right to Legal Representation Before the International Criminal Tribunal for the Former Yugoslavia’, ISRCL.org [n.d.]accessed 25 November 2013 Old Square Chambers,’ [2009] EWCA Civ 789 - Dr Kulkarni v. Milton Keynes Hospital NHS Foundation Trust’, Oldsquare.co.uk [2009] accessed 25 November 2013 R v SSHD ex p Tarrant [1985] QB 251 accessed 25 November 2013 Swarbrick,’D., Ezeh and Connors -v- The United Kingdom; ECHR 9-Oct-2003’, swarb.co.uk [2012] accessed 25 November 2013 Read More