European Convention on Human Rights (ECHR) considerations
The impact of ECHR
1. Prejudicial publicity may give rise to a contravention of the European Convention on Human Rights (ECHR), in particular the right to a fair trial under Article 6 1.
2. It is unlawful for a public authority such as HSE to act in a way which is incompatible with a "Convention Right" 2. A person who claims that a public authority has acted (or proposes to act) in a way which is unlawful under the Human Rights Act 1998 ("HRA 1998") may, if s/he is (or would be) a victim of the unlawful act, either 3:
- bring proceedings in any appropriate court or tribunal against the authority under the HRA 1998; or
- rely on the Convention right concerned in any legal proceedings.
3. In the case of adverse publicity, the Convention rights which are likely to be engaged are:
- Article 6(1) & (2) (right to fair trial);
- Article 8 (right to respect for private and family life);
- Article 10(2) (restrictions on the right to freedom of expression).
4. In Allenet de Ribemont v France 4, the European Court of Human Rights held that Article 6(2) imposed obligations not only on criminal courts but also on other public authorities. It further held that the presumption of innocence in Article 6(2) is one of the elements necessary to ensure a fair trial, as required by Article 6(1). The Court further stated that while freedom of expression, as guaranteed by Article 10, includes a right for public authorities to inform the public about criminal investigations in progress, it requires them to do so with caution if the presumption of innocence is to be respected.
5. Mr Allenet de Ribemont (the applicant) had complained that Article 6(2) was infringed when he was described by high–ranking police officers as one of the instigators of a murder. The Court held that this declaration of the applicant's guilt had firstly encouraged the public to regard him as guilty and, secondly, prejudiced the assessment of the facts by the judicial authority. There had, therefore, been a breach of Article 6(2). The Court said:
"The presumption of innocence...will be violated if a judicial decision concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court regards the accused as guilty... Moreover, the Court reiterates that the Convention must be interpreted in such a way as to guarantee rights which are practical and effective as opposed to theoretical and illusory... The Court considers that the presumption of innocence may be infringed not only by a judge or court but also by other public authorities.5"
6. You should be aware that if a published report or statement contains anything that harms an individual's reputation it may, at least if untrue, infringe his or her Convention right under Article 8 (right to respect for private and family life) 6. Where the state fails to provide a remedy to an aggrieved individual by way of an action for defamation the state may be responsible under Article 8(1).
7. This protection of individual reputations may be at the expense of freedom of expression. This could involve a breach of Article 10. Article 10(2) does however allow a state to place restrictions on the right to freedom of expression in the interests of, for example,
- crime prevention;
- the protection of the reputation or rights of others;
- preventing the disclosure of information received in confidence, or
- maintaining the authority and impartiality of the judiciary.
8. Both Article 8 and Article 10 are qualified rights where it may be necessary for a court to balance conflicting rights of individuals.
9. Article 6 may require the state to interfere with freedom of expression if the right of a person to a fair trial may be prejudiced. This will have an impact on the information HSE publishes. HSE should be circumspect with information about proceedings.
- Article 6 states: “(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 a 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”. Back to reference of footnote 1
- Human Rights Act 1998, Section 6(1). Back to reference of footnote 2
- Human Rights Act 1998, section 7(1)(a) and (b). Back to reference of footnote 3
- A 308 (1995) 20 EHRR 557. Back to reference of footnote 4
- (1995) 20 EHRR 557 at paragraphs 33-36. Back to reference of footnote 5
- N v Sweden No. 11366/85, 50 DR 173 (1986). Back to reference of footnote 6