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Denial of right to legal representation does not violate Article 5

Hammerton v. the United Kingdom, Application no. 6287/10

The European Court of Human Rights (ECtHR), by a majority of 4 to 3, has held that detaining an individual following his breach of a contact order, where he had no legal representation did not violate his right to liberty and security of person.

The facts of the case were that the applicant and his wife had divorced.  During contact proceedings concerning their children, his former wife alleged that he had harassed her.  He gave an undertaking that he would not contact her or her parents and the County Court served an injunction which prohibited him from threatening her.  She sought to have him imprisoned for breach of both undertaking and injunction.  The judge, sitting in the Central London Civil Justice Centre, decided to combine the hearings regarding the applicant’s conduct and his request for contact.

He was not represented, was not asked if he would like legal representation and was sentenced to a term of imprisonment.  The Court held that the lack of legal representation did not amount to a ‘gross and obvious irregularity’ and was not considered automatically unlawful.  Nor was it considered arbitrary or a flagrant denial of justice.  Therefore, the majority considered that the detention was justified under Art. 5(1)(a).

The domestic courts had acknowledged that the proceedings violated the applicant’s right to legal assistance under Article 6.  He sought compensation and the ECtHR held that no effective remedy existed in domestic law and that Art. 13 had also been violated.  He was awarded a sum of €8,400.

Read the UK Human Rights Blog article here.

Criminal Law, ECHR Art. 13, ECHR Art. 5, ECHR Art. 6, Family Law, Right to Fair Trial, Right to Liberty