Right to a Fair Hearing and Prosecutorial Independence

Haase v Independent Adjudicator & Anor [2008] EWCA Civ 1089 (14 October 2008)

Article 6(1) of the European Convention of Human Rights provides, ‘[i]n the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing … by an independent and impartial tribunal established by law.’  This case was an appeal from a decision of the High Court holding that art 6(1) does not require prosecutorial independence.  The England and Wales Court of Appeal dismissed the appeal and held that art 6(1) does not impose a general requirement of prosecutorial independence.  Their Lordships held that a lack of prosecutorial independence should only be taken into account when it has some other effect on the impartiality of the tribunal.

Facts

The claimant was a prisoner who refused to provide a urine sample for the purposes of a drug test and so was charged with disobeying a lawful order.  The matter was referred to an Independent Adjudicator for determination.  At the adjudication, the prosecution’s case was essentially conducted by the reporting Prison Officer.  The Independent Adjudicator determined that the prisoner had disobeyed a lawful order and ordered that a further 21 days be added to the prisoner’s sentence.

It was accepted on behalf of the prisoner that the ‘tribunal’, namely the Independent Adjudicator, met the requirement of impartiality and independence.  However, it was argued that there was a separate implied requirement that in order to meet the requirement of a fair hearing the prosecutor, too, must be independent and impartial.  It was submitted that this requirement was not met because the prison officer who brought the charge and gave evidence also conducted the prosecution’s case.

Decision

Richards LJ (with whom the other judges agreed) rejected the contention that art 6(1) imposes any general requirement as to the independence and impartiality of the prosecutor.  Richards LJ stated at [19], ‘if the tribunal is independent and impartial, then it seems to me that fairness can in principle be achieved without imposing an additional general requirement as to the independence and impartiality of the prosecutor.’

At the centre of the prisoner’s case was the judgment in R v Stow [2005] EWCA Crim 1157, which was said on behalf of the prisoner to establish the principle that the prosecutor must be independent and impartial for the purposes of art 6(1).

Richards LJ conceded that Stow provided some support for the prisoner’s case since the decision rested on the conclusion that the prosecuting authority was not sufficiently independent and impartial for the purposes of art 6(1).  However, his Lordship contended that the decision in Stow should be treated with caution for the following reasons:

• the need for a degree of independence and impartiality on the part of the prosecution was conceded by the Crown in Stow and the court did not have the benefit of a broad range of arguments;
• Stow relied heavily on Strasbourg case-law, but failed to appreciate how limited the Strasbourg case-law is on the issue of prosecutorial independence and impartiality; and
• the court’s focus in Stow was on the specific context of a court-martial and what was said about prosecutorial independence and impartiality should not be treated as governing cases arising in other contexts.

In conclusion, their Lordships took the view that there is no general requirement under art 6(1) of prosecutorial independence and impartiality and that there was no basis for finding such a requirement to exist in the prison disciplinary context.

Relevance to the Victorian Charter

The Courts in the United Kingdom are bound by s 2(1) of the Human Rights Act 1998 to take into account decisions of the European Court of Human Rights.  In contrast, s 32(2) of the Charter simply states that international law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.  In light of this, the decision in this case may, but will not necessarily, inform the interpretation of s 24 of the Charter, which enshrines the right to an independent and impartial hearing in Victoria.

The decision of their Lordships suggests that the right to a fair hearing should not be interpreted to mean that every aspect of a hearing (for example, the prosecution) must be totally independent — so long as the impartiality of the hearing itself is not compromised, art 6(1) and similar provisions will not have been violated.

This decision is available at http://www.bailii.org/ew/cases/EWCA/Civ/2008/1089.html.

Thea Snow, Human Rights Law Group, Mallesons Stephen Jaques