The “right to a fair trial” is still being regularly litigated over in the UK and across Europe 800 years after it was enshrined in Magna Carta, according to research by Thomson Reuters. In the last decade, the European Court of Human Rights has made 19 rulings against the UK and 1,237 rulings against all EU countries in total for breaches to the right to a fair trial. In 2014 alone, 149 violations of the right to a fair trial were recorded by the European Court of Human Rights against signatory countries to the European Convention on Human Rights.
Human Rights Act
Thompson Reuters points out that the “right to a fair trial” and “no punishment without law” (the right not to be charged for an offence committed before that offence became a crime) are the core elements of Magna Carta that remain relevant today. Both the “right to a fair trial” and “no punishment without law” are now part of both the European Convention on Human Rights, as Articles 6 and 7 respectively, and are also contained in the UK’s Human Rights Act. The UK government has outlined plans to replace the Human Rights Act with a British Bill of Rights. It would be expected that a British Bill of Rights, were it to go ahead, would affirm the principles of the “right to a fair trial” and “no punishment without law” set down in the Magna Carta.
No punishment without law
In 2014, the European Court of Human Rights made one ruling against signatory countries for breaches of Article 7 (“no punishment without law”). There have been a total of 29 judgments against signatory countries in total for breaches of Article 7 within the last decade. According to Thomson Reuters, legal experts trace the ideas incorporated within these two Articles from the European Convention on Human Right back to Magna Carta’s declaration: 'No freeman shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers or by the law of the land….to no one will We sell, to no one will We deny or delay, right or justice.'
Impact on companies
The definition of “right to a fair trial” and “no punishment without law” have significant impacts on companies as well as individuals and have been argued in cases relating to employment law, tax tribunals, regulatory issues and other, often high value, commercial cases. 'Commercial, tax and employment lawyers frequently make arguments based on the right to a fair trial – a concept that was one of the most significant legacies of Magna Carta 800 years ago,' says Tom Hickman, barrister at Blackstone Chambers and author of Thomas Reuters publication, “Human Rights: Judicial Protection in the UK”.
He continues: “The principle of right to a fair trial now governs many of the procedures of how tribunals, regulators and the courts work and has a surprisingly wide application in commercial disputes as well as criminal cases. Clearly, to have a well-functioning economy, businesses need to know that they will receive a fair trial in their own country. Businesses are now more aware of how to use human rights arguments in commercial cases. The introduction of the Human Rights Act in the UK more than a decade ago precipitated this change, but their foundations are laid in Magna Carta,' Mr HIckman said, adding that the 'principles laid out in Magna Carta are still live issues in the UK and other well established democracies, even today.'
Thomson Reuters points out that several significant UK cases brought to the European Court of Human Rights based on the right to a fair trial involved issues linked to taxation:
- Minshall v. the United Kingdom involved a successful argument that confiscation proceedings following a conviction for conspiracy to evade excise duty on alcoholic liquor were excessively long.The Court upheld a plaintiff’s complaint that HMRC tax penalty proceedings against him, which had lasted 13 years, 10 months and 12 days, infringed the ‘reasonable time’ requirement in the European Convention on Human Rights, and that he had therefore not received a fair trial. The plaintiff was awarded costs and expenses.
- The Court ruled in favour of a litigant who claimed that Hammersmith and Fulham Council’s Housing Benefit and Council Tax Benefit Review Board had denied her a fair trial in her appeal against the Council’s refusal to make backdated council tax and housing benefit payments. The Court said that the review board was not an independent and impartial tribunal; a violation of Article 6.
From outside of the UK, one of the most high profile cases to be brought to the European Court of Human Rights was a commercial case:
- The Court found that Russian oil and gas company, Yukos, had been denied the right to a fair trial. It was given insufficient time to prepare a defense against tax claims from the Russian Government. The Court subsequently ruled that the enforcement proceedings against the business had been disproportionate. $50 billion in compensation has since been paid to Yukos shareholders.
Article 6 protects the right to a fair trial in the determination of civil rights and in the case of any criminal charges brought. It states that all those charged with wrong-doing should be considered innocent until proven guilty and be given the time and means to mount an adequate defense. It declares that any trial should take place within a reasonable time and the judgment be made publically. Article 7 prohibits finding an individual or body guilty of a criminal offence on account of any act or omission that did not constitute a criminal offense at the time that it was committed.