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How to write a first class dissertation: Chapter 1: Set the scene

by WardBlawg on October 23, 2010

Chapter 1: Setting the scene

Depending on the nature of your dissertation, you may need to set the scene further. In a legal dissertation, by “scene” is meant the bits of law that are relevant to set up key arguments in the main body of the dissertation. With this example dissertation, the target readership was, for various reasons, international private law experts. Because human rights law was a key part of the debate, the relevant law had to be set out in such detail that the chapters following it could discuss, for instance, the right to a fair trial and the doctrines of direct and indirect effect without any need for constant repetitive explanation.

2. ARTICLE 6: THE RIGHT TO A FAIR TRIAL

2.1. Substantive Elements

Article 6(1) ECHR provides inter alia that “[i]n the determination of his civil rights and obligations…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law….” The ECtHR has reverberated that “the right to a fair administration of justice holds such a prominent place” that Article 6 should not be interpreted restrictively. Instead, the seemingly distinct provisions of Article 6 are not discrete, but are “rights which are distinct but stem from the same basic idea and which, taken together, make up a single right not specifically defined in the narrower sense of the term.” This single right is the title of Article 6: the “right to a fair trial.”

This right comprises two particularly significant elements important in the context of civil jurisdiction and judgments. First, the right to a trial within a reasonable time. Expressly stated in Article 6(1), this right may be pertinent where proceedings are stayed in favour of a foreign court. Second, access to a court, an inherent element of Article 6(1). This may have relevance where access is denied to the UK courts through, for example, staying proceedings, or restraining foreign proceedings.

2.2 Procedural Operation: Direct and Indirect Effect

Article 6 can operate through a number of mechanisms in the civil jurisdiction and judgments context, which must be distinguished for analytical purposes.

First, through direct effect, where there is direct protection of a party’s right to a fair trial in the domestic courts themselves. Such protection is strong and somewhat easier to obtain because there is no test for the seriousness of the breach. Such infringement may occur through a refusal of access to the UK courts, which refusal may emanate from, inter alia, an exclusion of jurisdiction or stay of proceedings.

Second, through indirect effect, where a person is transferred to another country where his right to a fair trial may be infringed in that country. In Soering v United Kingdom the ECtHR emphasised that it was for Member States to secure Convention rights of persons within their jurisdiction, but that this obligation did not extend to non-Contracting States, nor should it seek to impose ECHR standards on such States. Thus, for example, in respect of deportation of a person to the United States of America from England, there may be an indirect breach of Article 6, but only where the transfer creates or risks creating a flagrant breach of the claimant’s right to a fair trial in that other country. In presenting an argument for the creation of such risk, it is axiomatic that a strong compilation of evidence is essential, with reference to the circumstances of both the case and proceedings of the court in question.

The difficulty with such an argument in the civil jurisdiction sphere is that stays of proceedings concern transfers of actions abroad, not persons. Notwithstanding, arguments for the application of the indirect effect doctrine in this context are still applicable because the situations are “essentially the same.” Indeed, it could be argued that staying proceedings amounts to a transfer of persons through effective compulsion. Nevertheless, no authority exists for this argument and indeed the indirect effect doctrine itself has not been successfully relied upon in an Article 6 context before the (former) Commission or ECtHR.

Third, through indirect effect where enforcement in a Contracting State of a judgment from a foreign State, whether Contracting or non-Contracting, would breach Article 6 because that judgment itself breached Article 6 standards. It has been stated that such a breach by the foreign court must also be a flagrant one. However, the reasoning underlying this proposition is unclear and, as with many matters in the civil jurisdiction and judgments sphere, there are concerns as to the extent to which the right to a fair trial can be upheld in this respect.

2.3 The Human Rights Act 1998

The Convention rights, including Article 6, now have the force of law in the United Kingdom under the HRA 1998. The Act places two initial express duties on the UK courts: first, the duty to read and give effect to primary and subordinate legislation in a way compatible with the Convention rights, if possible; second, the duty to take into account inter alia any previous judgment of the ECtHR in determining proceedings which have a Convention right element, insofar as it has relevance to those proceedings.

Moreover, under Section 6(1) of the HRA 1998, it is unlawful for a public authority, including a court, to act in a way incompatible with a Convention right. This is a significant duty on the courts, which indeed sparked considerable academic debate as to the Act’s impact on private commercial disputes. Thus, the courts have a duty to interpret and apply the common law or any exercise of discretion compatibly with the right to a fair trial under Article 6. Ultimately, this may amount to a positive duty to develop the common law, extending beyond mere interpretation of the common law to conform to the Convention principles.

Notwithstanding this rather stringent theoretical framework for the courts upholding the right to a fair trial, there has been a lack of consistency in its practical impact in the field of civil jurisdiction and judgments.

Endnotes

*Converting c300 footnotes on a Microsoft Word document to a WordPress post is not feasible for this blawgger. They are, therefore, pasted below as endnotes. The full dissertation is available in the Juridical Review, vol 1 of 2008 pp15-31

Delcourt v Belgium (1979-80) 1 EHRR 355, at [25]; indeed, the principles of due process and the rule of law are fundamental to the protection of human rights (Clayton and Tomlinson: 2000, p550,) just as a fair trial is a fundamental element of the rule of law (Ovey and White: 2002, p139.)
Golder v. United Kingdom [1975] ECHR 1, at [28].
Ibid., at [36].
Such cases can be labelled “domestic” ones: Government of the United States of America v Montgomery (No 2) [2004] UKHL 37, at [15], per Lord Bingham.
R (Razgar) v Special Adjudicator [2004] AC 368, at [42].
Soering v United Kingdom (1989) 11 EHRR 439.
Ibid., at [113]; this test has been followed subsequently: e.g. Einhorn v France (no.71555/01, 16 October 2001) at [32], Tomic v United Kingdom (no.17837/03, 14 October 2003) at [3].
Fawcett; 2007, p4.
Ibid.
Montgomery (n12); Drozd and Janousek v France and Spain (1992) 14 EHRR 745, p795; cf. Pellegrini v Italy [2001] ECHR 480.
HRA 1998, s3(1).
Ibid., s2(1)(a); such previous decisions are not binding; notwithstanding, as Lord Slynn observed in R (Alconbury Developments Ltd) v Secretary of State for the Environment [2001] 2 WLR 1389 at [26]: “[i]n the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the [ECtHR].”
Ibid., s6(3)(a).
Wade: 2000; Lester and Pannick: 2000.
Such discretion should be “exercised with great caution and with close regard to the overall fairness of the proceedings”: R v Jones [2003] AC 1, at [6], per Lord Bingham.
HL Deb vol.583, p783 (24 November 1997); Grosz, Beatson and Duffy: 2000, para.4.56; cf.. Derbyshire CC v Times Newspapers Ltd [1992] QB 770.
Grosz, Beatson and Duffy: 2000, para.4.59.

WardBlawg

WardBlawg

Legal Blogger at WardBlawg
+Gavin Ward is the founder of WardBlawg, Director of YouBlawg Limited and Operations Director at Moore Legal Technology Limited, specialising in helping law firms, lawyers and businesses grow their businesses online and aiming to help get great legal content published and shared across the web. Gavin created this law blog or ‘blawg’ to aim to contribute useful updates, thoughts and advice to help law firms, businesses and the legal profession in the UK and across the world succeed both online and offline.
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