This final section looks at how existing law and procedure will be affected by the Act. However, as explained previously, much of our existing legislation does provide similar guarantees to those contained in the Convention.

When considering the following examples of how various Articles may impact on your work in court, remember that only specific Rights within each Article are dealt with here; there are other Rights within each Article.

5a. Bail Act Applications
Both the Bail Act 1976 and the Convention state that a defendant has the right to bail.

The Bail Act 1976 provides conditions which must be complied with before a person is either remanded in custody or released on conditional bail. In a similar way Article 5 ensures that everyone has the Right to liberty. This Right can only be withheld in accordance with a procedure prescribed by law such as the Bail Act 1976.

For example, in one particular case (Matznetter v Austria 1969) the Court of Human Rights ruled on a remand in custody based on the fear of further offending. The Court of Human Rights stated that this could not be justified if the previous convictions were not comparable, either in nature or seriousness, with the charges preferred against the accused. Magistrates correctly applying the 1976 Bail Act would have come to the same conclusion as the Court of Human Rights. This case shows how much of our legislation is in tune with the Convention.

5b. Dealing with a Case
Right to a Fair Trial (Article 6) re-states the existing presumption that a person is innocent until proven guilty and is entitled to a fair trial.

A defendant also has the Right to:

• be told exactly what the offence is in a language s/he understands.
• have the time and facilities to prepare a defence
• defend him/herself with legal assistance if required.

These are some of the Rights contained in Article 6 and this Article, 'Right to a Fair Trial', provides many safeguards in addition to the above. The Court of Human Rights has applied many of the Rights in Article 6 to the full prosecution process. The effect of much of Article 6 has not, therefore, been restricted to the trial.

Application for an Adjournment
The Crime and Disorder Act 1998 encourages the prompt processing of cases through the court. This must be balanced against the Right to have adequate time to prepare a defence. You must therefore continue to consider each application to adjourn on its merits in order that Article 6 (Right to a Fair Trial) is not breached. This will, as now, mean considering the Right of the defendant to a fair trial and the interests of others, particularly witnesses or victims as explained earlier.

Disclosure of the Prosecution Case
Defendants charged with 'either-way' offences are entitled to advance information. Current domestic law may not be sufficient to protect the Rights of individuals under Article 6, Right to a Fair Trial, because:

• the prosecution is not required to provide advance information when the offence is summary only;
• in either-way cases whilst some information is provided the prosecution is not required to disclose its full file. The defendant may be entitled to further materials only if he gives details of his case to the prosecutor.

The overriding aim of Article 6 is fairness. This requirement is demonstrated by the need to provide free interpreters for those who cannot understand the language of the court. By ensuring that facilities or opportunities available to one party are available to another, the Court of Human Rights has created the concept of an 'equality of arms'.

Legal Representation
Anyone charged with a criminal offence has certain minimum Rights, these include free legal assistance if the interests of justice so require where the defendant has insufficient means (Article 6(3)c). When reviewing the procedure adopted during committal proceedings for non-payment of poll tax (in the case of Benham v United Kingdom 1996) the Court in Strasbourg decided that the defendant was entitled to legal aid. These civil proceedings were regarded by that Court as being criminal in nature due to the severity of the penalty (custody) and complexity of the case. Therefore, legal aid should have been available.

This right to legal assistance for a defendant in custody has been interpreted as including the facility to speak privately to his/her solicitor, in the absence of third parties. This may result in cases having to be adjourned in order that adequate facilities can be provided.

Community Service Orders (CSO)
One of the areas of domestic law identified as possibly requiring attention is the making of a Community Service Order. Before the implementation of the Human Rights Act 1998, Parliament may reintroduce the need for consent prior to making a CSO because of the Prohibition on forced or compulsory labour in Article 4. If the law is not changed, the court should consider asking for the defendant's consent before making the Order.

Bind Overs
As a general principle, the Convention requires domestic law to be clear and certain. On enquiry, people should be able to understand exactly what is required of them by the law. Concern has been expressed that once the Human Rights Act 1998 is in force, courts will no longer be able to bind over defendants. However, a decision of the Court of Human Rights has clarified the position. The Court stated that a bind over to 'keep the peace' was sufficiently clear and therefore could be imposed. A bind over to 'be of good behaviour' was not sufficiently clear, and therefore could not be part of an Order because there is no consensus about 'good behaviour'.

Prohibition of torture
Article 3 (Prohibition of Torture) states no one shall be subjected to torture or to inhuman or degrading treatment or punishment. You may be surprised at the inclusion of this Article in the guide for magistrates. However, the example we are giving will show how specific the Court of Human Rights has been in interpreting this Right.

The Court has said that the treatment must attain a minimum level of severity before the Convention Right is breached. This was illustrated in the case of a person locked in a cell for 23 hours a day for a four month period in conditions criticised by the Chief Inspector of Prisons. The prisoner claimed a breach under Article 3 but his application was unsuccessful.

Applications in respect of the handcuffing of defendants in court are unlikely to breach Article 3 provided that the existing legal test is satisfied. However, this is an area of the Convention which the Court of Human Rights has indicated will be constantly re-appraised in the light of prevailing circumstances, the 'Living Instrument Approach'.

Although not relevant to the magistrates' court, you may remember the furore over women who were handcuffed whilst giving birth. Under the Act and in light of the Court of Human Rights' indications above, it seems that a prison authority may need to review its practices and procedures in respect of such women.

5c. Giving Reasons in Open Court
The Human Rights Act 1998 extends the current working pattern in the Family Courts of giving reasons for their rulings and judgements, to all courts. This has become a familiar process to many of you since the Children Act 1989 was implemented. Although widening the scope of giving reasons constitutes a challenge, the reasons you give will not be as detailed as those in the Family Courts. In order to demonstrate that a fair hearing has been conducted by an independent and impartial tribunal (Article 6) you will be required to give reasons for your decisions. This is of course an extension of what you already do when you refuse bail or impose a custodial sentence.

From the defendant's point of view, the bench will have listened to the evidence and/or submissions, often over a long period of time. You will then retire with your colleagues and work through a structured decision making process in order to arrive at your decision. Currently, the bench returns to court and the chairperson announces the decision without explanation. This may leave the defendant and advocate unsure as to the basis on which the decision was made.

The general trend in rising expectations of levels of service and accountability is set to continue. The concept of a fair trial under Article 6 of the Human Rights Act 1998 requires a more open and transparent judicial process. You will need to explain to defendants in plain language what is happening and why. This may involve giving unpleasant reasons e.g. ' the evidence of witness X was not believed because ....' A structured approach to decision making will provide you with the reasons to be given in court for your decision.

Giving reasons for your decisions demonstrates that you have used a structured decision making process rather than reaching an arbitrary decision. This means that the defendant is more likely to accept the decision, and if challenged on appeal, it will be easier for you to state your case. Most defendants are represented; therefore another benefit of giving reasons is that the defence advocates can explain your decision to the defendant because they understand how it was arrived at.