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One source available to us is Lord Bingham who has been recognised as one of our greatest judges in modern times. The late Lord Bingham had plenty of credentials not only as a commentator in his speeches and writings upon the rule of law – but as a former Master of the rolls, Lord Chief Justice and a senior law Lord in which he gave a number of leading judgments. As the writer of his book 'The Rule of Law' Lord Bingham identified the essential essence of the rule of law as being:
'that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts.'
Lord Bingham's work is particularly helpful as he broke down the rule of law into elements which he saw as being the key ingredients necessary to support the rule of law. One of those key ingredients was the independence of the judiciary.
As Lord Bingham reminds us in his book, a fair trial is a cardinal requirement of the rule of law. In fact it is set out in Art 6 of the European Convention on Human Rights. Paramount is the requirement for a hearing before an independent and impartial panel. The panel must arbitrate on the case according to the legal and factual issues before them and free from any extraneous influence. This means that proceedings must be open and reasons given for judgments.
Everyone is entitled to their day in court and have their say in response to charges brought against them. We normally associate this requirement with criminal proceedings but the same principle applies to civil matters as well as to proceedings which are adjudicative in nature and this would include tribunal hearings and appeals against administrative decisions.
This means the procedures adopted must be fair to both parties. If procedures allow for the prosecutor to be heard then the same procedures should allow the defendant or their representative to respond. This is similar to the principle of 'equality of arms.'
In England and Wales the right to a fair trial has developed over the centuries, and originally derived from sources such as the Bill of Rights 1689, the common law and of course the Magna Carta 1215, which stated that a "freeman shall not be... imprisoned... unless by the judgement of his peers".
The common law embraced the concept of fair play and adopted rules which became known as the rules of natural justice. The main principles being that “Audi alteram partem” (Latin term, meaning to hear the other side) and “Nemo judex in sua causa” (meaning that nobody may be judge in his own cause ).
The right to a fair trial (a public hearing) is seen as the best means of establishing guilt or innocence and ensuring that justice is seen to be done. It is important if a society is to feel confident about justice and the rule of law. To this end the notion of openness, impartiality and lack of bias have become cornerstones of our legal system.
It was Lord Chief Justice Hewart in R v Sussex Justices, ex parte McCarthy (1924) who famously said “...it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”. The appeal was against a decision by the Magistrates to convict McCarthy for dangerous driving. The Clerk to the Justices worked with the solicitors acting in a civil claim against the defendant arising out of the accident that had given rise to the prosecution. Neither the defendant nor his solicitors were aware of this connection at the time of the trial. On learning of the connection the defendant applied to have the conviction quashed. The appeal was allowed, as it raised the question of possible bias despite the Justices swearing affidavits stating that they had reached their decision to convict the defendant without consulting their Clerk.
The concept of justice being seen to be done and it links to public confidence is no better illustrated than in Re Pinochet (1999) in which the then House of Lords set aside its own earlier decision. The appeal sought that a judgement of the House be set aside because the wife of one their Lordships, Lord Hoffmann, was an unpaid director of a subsidiary of Amnesty International. Colonel Pinochet had been the subject of a campaign by Amnesty International. Needless to say the House reconvened without Lord Hoffman when it readily and unanimously decided to set aside the earlier decision on the grounds of natural justice. See Pinochet, Re (1999) (UKHL).
Today we invariably have to turn to Article 6 of the European Convention on Human Rights and the Human Rights Act 1998 for a more detailed account of the rights relating to a fair trial. The right to a fair trial is one of a number of rights set out in the The Human Rights Act 1998. The Act came into force in the United Kingdom in October 2000 and is composed of a series of provisions that have the effect of codifying the rights and protections in the European Convention on Human Rights into UK law.
The European Court of Human Rights went so far as to say in Perez v France (2004) - "the right to a fair trial holds so prominent a place in a democratic society that there can be no justification for interpreting Article 6 (1) of the Convention restrictively".
The opportunity to present their case in court is accompanied by the right to have access to evidence relied on so that the defendant knows the case they have to answer. In criminal proceedings the prosecutor must make available to the defence evidence which is material to the case. The general rule is that it must be disclosed if the defence would be prejudiced by non-disclosure. The prosecution may well be faced with the prospect of abandoning proceedings if they are unable to comply with the requirements of disclosure.
Recently there have been a number of serious cases where the process of disclosure has not been carried out satisfactorily or in some cases very late resulting in the CPS offering no evidence on the first day of the trial with the result that the proceedings have had to be dropped. There have been many complaints by members of the legal profession about this and a recent survey has revealed that a half of all lawyers involved in cases were experiencing difficulties and up to a third thought that wrongful convictions may have resulted.
A review of rape and sexual assault cases has been ordered but many professionals feel that a wider review is required. The survey included some 1,300 solicitors and barristers involved in criminal work. The review follows the case against Liam Allan which was only dropped after text messages were found on a mobile phone that pointed to his innocence but had not been disclosed previously. The problems seem to relate digital devices such as mobile phones, tablets and laptops.
The independence of the judiciary should guarantee the freedom of judges from improper influence or interference in their work. Independence from the State is not a new concept and is based upon the theory of the separation of powers as put forward by Montesquieu in the eighteenth century. The theory recognises that the State is usually made up of the legislature (in our system Parliament), the executive (made up of Government and its cabinet) and the judiciary ( made up of judges who apply the law). By keeping these functions separate the theory is that there is a greater chance of them not being able to abuse their powers if each body keeps a check on the others. The rights of subjects are safeguarded if the powers of the state are limited in this way.
The independence of the judiciary is important to the rule of law so that human rights are upheld and that any excesses in executive power are held in check. In the post 9/11 bombings in New York and in July 2005 in London after which there was a swing towards a more authoritarian approach by the government of the day, many considered that the holding of foreign nationals without trial and the use of evidence that may have been obtained by torture was a step too far by the Government. It was the judiciary that had to stand up to protect individual rights when needed.
Challenges to the Government have included those from asylum seekers and others held under the Anti- Terrorism, Crime and Security Act 2001. In R (on the application of Q) v Secretary of State for the Home Department (2003) the Court of Appeal upheld the view that the Home Secretary had acted unlawfully in denying assistance to asylum seekers in cases where they had not declared their intention to claim asylum on entering the country.
In A and another v Secretary of State for the Home Department (2004) the former House of Lords held that the same 2001 Act was not compatible with the Human rights Act 1998 and the ECHR as it permitted foreign nationals to be detained indefinitely without trial if there were a suspicion of involvement in terrorist activity. Specifically there had been an infringement of Article 5 freedom of liberty and that evidence probable had been obtained by foreign powers and should not have been admitted as evidence. As a result of this decision the Government changed the law which demonstrates the importance of such challenges as they not only can alter the outcome in an individual case but can bring about an improvement or change to the law for subsequent situations. This shows that governments can act within the law and the judiciary are there to ensure that powers are employed fairly and in many ways act as our public conscience.
A strong judiciary ensures that judges can prevent and/or restrict the arbitrary exercise of power by the Government and its officials and agents. A strong independent judiciary is fundamental if judges are to remain impartial and without bias and be able to resolve disputes strictly according to the law in a fair manner. Lord Bingham was adamant about the matter saying in his book 'The function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself.' He was also very critical of criticism at the time by the Attorney General that the court had acted undemocratically in reaching its decision.
Such arguments continue and many of you will remember the hostile comments directed at the members of the Supreme Court who heard the case of Miller v The Secretary of State for exiting the EU (2016) ( Art 50 Brexit appeal) and the apparent failure of the then Lord Chancellor to support the principle of the independence of the judiciary at the time. The Supreme Court ruled that the Government had not acted lawfully when it attempted to trigger Art 50 by executive prerogative to start the leaving process after the EU referendum and that Parliament needed to approve such a measure.
In conclusion, we can clearly identify a number of reasons why the independence of the judiciary is important to the rule of law. Foremost a strong judiciary is needed to sustain and uphold human rights. In addition, a strong judiciary is need to keep any excesses on the part of the government and its ministers in check. The fact that there are the means of mounting challeges to Government and its ministers through the process of judicial review is a sign of a strong democracy in that it enables society to contemplate and articulate legal arguments in a set forum. If this voice were denied society then how would they be able to make a contribution?
The basis of the rule of law is that no one is to be considered above the law and in this regard public confidence is paramount. As Lord Justice Hewart put it 'justice should not only be done, but should manifestly and undoubtedly be seen to be done'. One of our expectations is that everyone is entitled to a fair trial and this one of several key aspects which are fundamental to our understanding of the rule of law. In this regard a judges role is crucial in any trial. In criminal proceedings he is the sole arbiter on points of law and has responsibilities for assisting and guiding the jury on what the law says on issues relevant to the work of the jury. In civil proceedings a judge actually determines the outcome between the parties – who wins and who loses.
One can readily see that if judges were not to remain impartial and were open to influences from outside the courtroom this would have a terrible affect. This would be harmful to the parties themselves and undermine the professional work of their legal advisers. It would cause untold harm to our legal system generally and our common law particularly as our common law is based up judicial precedent. Instead of certainty and consistency there would be confusion and suspicion and our society generally would suffer if the rule of law were undermined.
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