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it would be wrong to approach the article on the assumption that all that is in issue is the
question as to which of these two descriptions better fits the nature of the proceedings. It is
not a straight choice between one description and the other. It is possible that the proceedings
which are in. issue in a given case will fit neither description. In Albert and Le Compte v
Belgium (1983) 5 EHRR 533, 539, para 25 the court observed that there are some
cases which are not comprised within either of these categories and which thus fall outside
the ambit of article 6(1). For example, in Ravnsborg v Sweden (1994) r8 EHRR 38 the
court held that article 6 did not apply to proceedings where the applicant had been fined for
making improper statements in written observations before the Swedish courts. The
proceedings were regarded as being outside the ambit of article 6 because they were
disciplinary in character: p 51, para 34. In
128,
Simon Cordell’s Skeleton Argument (2) Pdf
[2003] I AC
80
R (McCann) v Manchester Crown Ct (HL(E)
Lord Hope of Craighead
A Raimondo v Italy (1994) 18 EHRR 237 the court held that article 6 did not apply to the
proceedings which led to the applicant being placed under special police supervision.
The second aspect of the wording that is worth noting is that those parts of article 6 which
refer to criminal proceedings make it clear that the essential feature of proceedings that have
that character for the purposes of
g the Convention is that the person is “charged with a criminal offence”. This expression is to
be interpreted as having an autonomous meaning in the context of the Convention: Adolf v
Austria (1982) 4 EHRR 313, 322, para 30. So careful attention must be paid to the meaning
which has been attached to these words by the Strasbourg court. As is by now very well
known, the case law has established that there are three criteria to be considered. They are not
always stated in precisely the same language, but they are usually said to be (1) the
classification of the proceedings under national law, (2) the nature of the offence and (3) the
nature and degree of severity of the penalty: Engel u The Netherlands (No 1) 1 EHRR 647,
678-679, paras 82-83; Benham v United Kingdom 22 EHRR 293, 323, para 56.
The words “criminal charge” themselves suggest that the proceedings which they have in
mind are not just proceedings where a
“charge” is made. The question is whether they are proceedings which may result in the
imposition of a penalty. This point emerges clearly from the French text of article 6(r), as
Lord President Rodger pointed out in S v Miller z001 SC 977, 988, para 21. It states that the
matter which is to be determined must be either a dispute “sur ses droits et obligations de £
caractere civil” or an “accusation en matiere penale”. The words “en matiere penale” indicate
it is envisaged that there will be a penal element. The court seems to have had this point in
mind when, in Engel v The Netherlands (No 1), at p 678, para 82, it asked itself when it was
setting out the first criterion “whether the provision(s) defining the offence charged belong,
according to the legal system of the respondent state, to criminal law, disciplinary law or both
concurrently.” In other words, proceedings ^ involving a charge which is merely disciplinary
in character will not fall within the ambit of article 6.
In Oztiirk v Germany (1984) 6 EHRR 409, 421, para 50 the court said that the first matter to
be ascertained was “whether or not the text defining the offence in issue belongs, according
to the legal system of the respondent state, to criminal law”. In the continental systems the
texts in question are likely to be found in a code, and there is often a separate criminal code
which can readily be identified. As the Lord President observed in S v Miller 2001 SC 977,
988-989, para 21:

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