BCL Law Notes Principles of Civil Procedure Notes
A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
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Fair trial
Components: Art 6 ECHR
1. 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.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. 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.
Nature of Art 6
Said that it provides an absolute right – that can’t be balanced against other rights / competing interests
Infringement can’t be justified by higher purpose
BUT all of elements are a matter of degree
Right to be heard & public trial
Right to be heard
Justifications
Instrumental – distorts conclusion of adversarial process unless both sides heard
Dignitarian – respect for autonomy of the parties
Requires
Notification (service)
Comprehensive – of claim, particulars of allegation and of evidence
Time to respond
Opportunity to challenge evidence
Right to respond & meet allegations
Qualifications
Urgency – ex parte applications without notice
Balanced by short return date – deprivation of right not permanent
Secrecy – where notification would defeat process – freezing injunctions
Right to public trial
Justifications
Instrumental justification – more disposed to correctly find facts
Witnesses – more likely to tell truth in the open? Not necessarily true
DM/judge is unaccountable & can reach odd factual conclusions – promotes irrationality, bias (incl towards own hypothesis), lack of thoroughness or corruption
Confidence in the administration of justice – expose procedure & reasoning process – judging compliance with standards
Secrecy – no standards by which can be criticised – no constraints on decision-making – leads to arbitrary decisions
Guard against bias
In other contexts – eg Cabinet – meetings are secret – but subject to elections, and fear of leaks
AZ says no objective measure of correctness of decisions – can only observe the process – otherwise undermines confidence in justice and our own rights / incentive to comply with the law
Educational value – informs public & guards judiciary from uninformed criticism
Also stare decisis – if precedent is binding it should be knowable
Democratic function – promotes debate by giving reasons in public
Participatory value – public dimension in ability of public to comment & encourage development of law
Rule of law – common law must be knowable
Aspects to publicity
Litigant – right in Art 6
Tension between efficiency <> publicity & quality of justice
Public dimension – opportunity to attend / be informed
Tension between efficiency <> publicity (but not necessarily quality?) – eg opening speeches, EIC in bundle rather than in open
There is public interest in efficiency – and if court file is public then if we assume literacy concern is remedied
Public access to court file – only during conduct of proceedings (equivalent opportunity as access to oral evidence) – otherwise on application to court, generally granted unless reasons to refuse
Applications in chambers – not closed but no practical opportunity for public to attend
CPR
5.4C & 5.4D re access by public –
Qualifications & attenuating circumstances
39.2(3) A hearing, or any part of it, may be in private if –
(a) publicity would defeat the object of the hearing;
eg freezing injunction
(b) it involves matters relating to national security;
(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;
(d) a private hearing is necessary to protect the interests of any child or protected party;
(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;
(f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or
(g) the court considers this to be necessary, in the interests of justice.
Personally sensitive information
Protection of welfare of parties – eg child care proceedings
But judgment still published; application is to particular party, said not to be adversarial proceedings – but welfare of parents is welfare of children
Financial affairs – tax office doesn’t reveal disclosures
In suit against the Revenue – does tax confidentiality justify private hearing/anonymisation/redaction?
Names generally not published in continental Europe
BUT generally published in UK & in the case of Doctor making an application of this kind, was published
EG – in claim for overpaid tax, publicity may see evidence come to light eg cash payments –...
Buy the full version of these notes or essay plans and more in our Principles of Civil Procedure Notes.
A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
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