Article 6 of the European Convention on Human Rights: Does it Really Grant to the Defendant in a Criminal Process a Real and Effective Choice When it Comes to the Defence?

Abstract

The criminal process by its nature has the potential to affect several of the basic human rights of the individuals involved in it. Consequently, certain international and national human rights instruments deal with the issue of where the balance shall be drawn between on the one hand the right of society to have a criminal justice system which will seek to punish wrongful activities and on the other the protection of the rights of the persons involved. Amongst those international human rights instruments and the one which arguably has the biggest influence in the criminal justice system of the United Kingdom is the European Convention on Human Rights (ECHR).This paper has as its main focus of attention the right of the defendants in a criminal process, to a fair trial, under Article 6 of the European Convention of Human Rights (ECHR). More specifically it seeks to examine whether Article 6(3)(c) grants the defendant in a criminal process a real and effective choice when it comes to the defense of his/her liberty. In doing so an analysis of the underlying jurisprudence of the European Court of Human Rights (ECtHR) on the relevant issues is provided together with an assessment of whether the recent legal aid cuts which the government of the United Kingdom is ready to announce have the potential to significantly undermine the effectiveness of such a choice. The examination of those issues precedes a thorough examination of the importance of human rights and of the existence of a criminal process in general together with an evaluation of what the general impact of the European Convention on Human Rights on the English criminal process is. The structure used in this paper has as its main purpose to provide the reader with the contextual background of the right to fair trial under Article 6 since it is in the writers strongest belief that only then an adequate examination of the rights under Article 6(3)(c) can be made. Overall, this paper demonstrates that although the jurisprudence of the ECtHR together with the wording of the Article itself constitute a “shield” for the effectiveness of the rights under Article 6(3)(c), the upcoming legal aid cuts have the potential to significantly undermine such effectiveness and possibly to constitute a violation of the Convention.