European Court of Human Rights - case of Campbell and Fell v. the UK (1984) (excerpts)

European Court of Human Rights - case of Campbell and Fell v. the UK (1984) (excerpts)

(...)

76. Article 6 para. 1 (art. 6-1) of the Convention reads as follows:


"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 the 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."


It was not disputed in the present case that a Board of Visitors, when

carrying out its adjudicatory tasks, is a "tribunal established by

law". It is, in fact, clear that the relevant English legislation

confers on Boards a power of binding decision in the area in question

and the dicta in the St. Germain case show that this is a judicial

function (see paragraphs 38 and 39 above). Again, the word "tribunal"

in Article 6 para. 1 (art. 6-1) is not necessarily to be understood as

signifying a court of law of the classic kind, integrated within the

standard judicial machinery of the country (see, mutatis mutandis, the

X v. the United Kingdom judgment of 5 November 1981, Series A no. 46,

p. 23, para. 53).


(a) "Independent" tribunal

(...)

78. In determining whether a body can be considered to be

"independent" - notably of the executive and of the parties to the

case (see, inter alia, the Le Compte, Van Leuven and De Meyere

judgment of 23 June 1981, Series A no. 43, p. 24, para. 55) -, the Court

has had regard to the manner of appointment of its members and the

duration of their term of office (ibid., pp. 24-25, para. 57), the

existence of guarantees against outside pressures (see the Piersack

judgment of 1 October 1982, Series A no. 53, p. 13, para. 27) and the

question whether the body presents an appearance of independence (see

the Delcourt judgment of 17 January 1970, Series A no. 11, p. 17,

para. 31).


The factors which were relied on in the present case as indicative of

the Board's lack of "independence" will be considered in turn.


79. Members of Boards are appointed by the Home Secretary, who is

himself responsible for the administration of prisons in England and

Wales (see paragraphs 26 and 32 above).


The Court does not consider that this establishes that the members are

not independent of the executive: to hold otherwise would mean that

judges appointed by or on the advice of a Minister having

responsibilities in the field of the administration of the courts were

also not "independent". Moreover, although it is true that the Home

Office may issue Boards with guidelines as to the performance of their

functions (see paragraph 35 above), they are not subject to its

instructions in their adjudicatory role.


80. Members of Boards hold office for a term of three years or

such less period as the Home Secretary may appoint (see paragraph 32

above).


The term of office is admittedly relatively short but the Court notes

that there is a very understandable reason: the members are unpaid

(ibid.) and it might well prove difficult to find individuals willing

and suitable to undertake the onerous and important tasks involved if

the period were longer.


The Court notes that the Rules contain neither any regulation

governing the removal of members of a Board nor any guarantee for

their irremovability.


Although it appears that the Home Secretary could require the

resignation of a member, this would be done only in the most

exceptional circumstances and the existence of this possibility cannot

be regarded as threatening in any respect the independence of the

members of a Board in the performance of their judicial function.


It is true that the irremovability of judges by the executive during

their term of office must in general be considered as a corollary of

their independence and thus included in the guarantees of

Article 6 para. 1 (art. 6-1). However, the absence of a formal

recognition of this irremovability in the law does not in itself imply

lack of independence provided that it is recognised in fact and that

the other necessary guarantees are present (see the above-mentioned

Engel and Others judgment, Series A no. 22, pp. 27-28, para. 68).

(...)

84. The personal impartiality of members of a body covered by

Article 6 (art. 6) is to be presumed until there is proof to the

contrary (see the above-mentioned Le Compte, Van Leuven and De Meyere

judgment, Series A no. 43, p. 25, para. 58). In the present case, the

applicant has adduced no evidence to give the Court any cause for

doubt on this score.

(...)

87. It is true that ordinary criminal proceedings - which may well

concern dangerous individuals or necessitate the production of a

prisoner before the court - nearly always take place in public,

notwithstanding the attendant security problems, the possible

propagation of malicious allegations and the wishes of the accused.

However, the Court cannot disregard the factors cited by the

Government, notably the considerations of public order and the

security problems that would be involved if prison disciplinary

proceedings were conducted in public. Such a course would undoubtedly

occasion difficulties of greater magnitude than those that arise in

ordinary criminal proceedings. A Board's adjudications are, as befits

the character of disciplinary proceedings of this kind, habitually

held within the prison precincts and the difficulties over admitting

the public to those precincts are obvious. If they were held outside,

similar problems would arise as regards the prisoner's transportation

to and attendance at the hearing. To require that disciplinary

proceedings concerning convicted prisoners should be held in public

would impose a disproportionate burden on the authorities of the

State.

(...)

91. The Court has said in other cases that it does not feel bound

to adopt a literal interpretation of the words "pronounced publicly":

in each case the form of publication given to the "judgment" under the

domestic law of the respondent State must be assessed in the light of

the special features of the proceedings in question and by reference

to the object pursued by Article 6 para. 1 (art. 6-1) in this context,

namely to ensure scrutiny of the judiciary by the public with a view

to safeguarding the right to a fair trial (see the Pretto and Others

judgment of 8 December 1983, Series A no. 71, pp. 11-13, paras. 21 and

26-27, and the above-mentioned Sutter judgment, Series A no. 74,

pp. 12 and 14, paras. 26 and 33).

(...)

98. Mr. Campbell was informed of the charges against him on

1 October 1976, five days before the Board sat (see paragraph 13

above). He also received "notices of report", those relative to the

Board's adjudication having been given to him on the day before it

met; the notices drew attention to the fact that he could reply to the

charges in writing (ibid.).


The Court considers that in all the circumstances the applicant was

left with "adequate time" to prepare his defence; it notes that he

apparently did not seek an adjournment of the hearing (ibid.).