European Convention 1950: ‘right to a fair trial’
‘Rights’ have been in the news recently, especially with Tory plans to repeal the Human Rights Act 1998. As explained at https://dbfamilylaw.wordpress.com/2014/10/05/human-rights-act-1998-and-english-law-part-ii/ the vast majority of rights protected by the European Convention 1950 are protected also by the English common law. Art 6(1) of the Convention protects the ‘right to a fair trial’; or, the corollary, it gives freedom from injustice. This right and its associated components – such as a trial in open court, advice privilege, freedom from bias, and duties of disclosure of documents – have been well-known to the common law for centuries. For most routine areas of court work the concept of a fair trial is uncontroversial. A person must have (1) notice of the case against him/her. The judge must be (2) entirely free from bias and (3) s/he must hear both sides of the argument before delivering a public judgement.
But supposing that A is someone concerned in the process of a public inquiry and wishes to say that an inquiry panel member is not impartial (‘biased’ in the technical legal sense: in A’s reasonably held opinion); or A wishes to say that s/he is personally affected by the decision-making process of a parole board in the release of someone convicted of sexual abuse on A; or A has evidence to show that a person is inappropriate to work in a school with young children? Does A have the right to challenge any of the appointments concerned; and if so on what grounds and how?
Article 6(1): ‘civil rights’
The relevant part of Art 6(1) reads:
6 Right to a fair trial
1 In the determination of his civil rights and obligations…, 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…
So what is a ‘civil right’ (other than one where a person can use ordinary court proceedings)? Its definition first depends on the end result being that a public body decision-maker is required to make some form of judicial or quasi-judicial decision. Many administrative decisions have a judicial quality; and in such a case the decision-maker must act in a quasi-judicial way: free from bias and hearing both sides of any argument. S/he must take into account all matters relevant to the decision, and not take into account irrelevant matters; and s/he must act within statutory powers provided to, and according to procedures required to be followed by, the public body.
But where do rights available under administrative law (eg to be consulted; to receive reasons (or not) for a decision and so on) shade into rights which are ‘civil rights’ to be protected by a fair trial under Art 6(1)?
The starting point must be the extent of the personal interest which A (in the examples above) has in the outcome of the decision. What is the decision challenged and to what extent is A affected directly by it?
By this criterion the victim of child sexual abuse who is still alive when her abuser is being considered for parole has a direct personal interest in the outcome of the parole board’s decision-making. If the abuser may return to live near her or her family then she may have real, and justified, anxieties about what he may do, as may her family. It would be thought that she should be heard as to his explanation for parole being appropriate after he has presented his case. It could plausibly be argued that she has a civil right so to be heard. More research is needed as to the extent of that right. Research will probably find that rights are limited, as the law now stands.
At the other end of the spectrum is the person concerned at appointment of an individual (B) who may be an alleged abuser, though not convicted. His/her information should be passed to the school appointing B. It is difficult to see how this duty (so far as it is a ‘duty’) to provide information can be converted to an actionable ‘right’; save perhaps where A has – or will have – a child at the school. (On a separate point, if a person plans to give information to a public body which is confidential they must be careful how they go about it (R (H and L) v A City Council  EWCA Civ 403: disclosure of confidential information by police to a local authority who passed on that information inappropriately and in breach of confidence to others).
Spectrum of personal interest
In between these two ends of the spectrum is the person who wants to object to the format or terms of reference of an inquiry. Provided that that person (A) can show ‘sufficient interest’ (Senior Courts Act 1981 s 31(3); or that she is a ‘victim of an unlawful act’: Human Rights Act 1998 s 7(1)) in the inquiry’s proceedings and if a right is in issue, then A can apply for judicial review of decisions in relation to the setting up of the inquiry.
In R (ota Howard and anor) v Secretary of State for Health  EWHC 396 (Admin), Scott Baker J and R (ota Persey and ors) v Secretary of State for Environment, Food and Rural Affairs  EWHC 371 (Admin), Divisional Court (Simon Brown LJ and Scott Baker J) (judgment was given on the same day, 15 February 2002), applicant sought review of decisions to hold a private, not public, inquiry in each case (Howard: widespread abuse of patients by two doctors; Persey: inquiry following the foot and mouth epidemic). The challenge was based on the rights to freedom of expression under Art 10. Both applications were refused.
In neither was there any suggestion that the challenge to the setting up of the inquiry was impermissible; but in these two cases the claims were framed under Art 10. If there is an assertion that the decision-making qualities of the inquiry chairman may be unlawful because of a perceived bias, that should – in logic – be capable of judicial review challenge. In the analogous case of a judge in court proceedings, the party who wishes to assert the judge’s bias can apply to the judge and ask him/her to recuse him/herself (come off the case). How can this be done in the case of an inquiry where the panel is chosen by the Secretary of State concerned and there are no court proceedings in existence; nor will there be?
The law in the case of an inquiry is much the same as the common law (I explained this in eg https://dbfamilylaw.wordpress.com/2014/09/06/reflections-on-law-of-bias/ and https://dbfamilylaw.wordpress.com/2014/09/07/csainquiry-open-letter-to-fiona-woolf-on-bias/). Inquiries Act 2005 s 9 deals with the question of bias – otherwise freedom from impartiality – as follows:
9 Requirement of impartiality
(1)The Minister must not appoint a person as a member of the inquiry panel if it appears to the Minister that the person has—
(a) a direct interest in the matters to which the inquiry relates, or
(b) a close association with an interested party,
unless, despite the person’s interest or association, his appointment could not reasonably be regarded as affecting the impartiality of the inquiry panel.
(2) Before a person is appointed as a member of an inquiry panel he must notify the Minister of any matters that, having regard to subsection (1), could affect his eligibility for appointment.
If bias can be challenged in a judge as a matter of guarantee to a fair trial, it must – in logic – be the case that it can be challenged by judicial review. A has a basis for application to the Admin Court to test, in front of a High Court judge, the bias of a panel chairman or member. At present it is not clear from any known existing case law, that law will follow logic. It remains for A to test the logic in law; and to test the ‘fair’-ness of a panel appointment in terms of Art 6(1).
Lawfulness of the decision
If this can be done, then it will be for the Admin Court – to which a judicial review application is made – to assess the information available to the Secretary of State. The court will consider whether – in terms of bias, or lack of impartiality – the decision to appoint was lawful. Thus, for example, in the two cases cited above the court had sympathy with the applicants who wished to have the enquiry made open to the public; but there was no basis on which the judges could fault the legitimate exercise of the discretion of the Secretary of State in each case. They were not prepared to say that the decision of the Secretary of State was unlawful.
‘Bias’ goes to the root of a fair trial; and to the root of a fair disposal of an inquiry’s work (and see Inquiries Act 2005 s 9 above). If as a matter of law, bias is found to exist (actual or perceived), it is difficult to see how the court could not intervene on judicial review to quash the Secretary of State’s decision to appoint the person found to be biased.