The right to a fair tri­al in crim­i­nal cas­es is a fun­da­men­tal hu­man right.At a tri­al there is a lot at stake, es­pe­cial­ly for a de­fen­dant who may be im­pris­oned, be­come bank­rupt, be for­bid­den to en­gage in their oc­cu­pa­tion, or even ex­e­cut­ed in some coun­tries if it is a mur­der tri­al. Un­doubt­ed­ly, with­out this right, the dis­pen­sa­tion of jus­tice would be a mock­ery and a sham.

Be­fore a tri­al even starts there are a num­ber of mat­ters to ad­dress to en­sure that there is a fair tri­al for both the com­plainant and the ac­cused. Some of these mat­ters in­clude, but are not lim­it­ed to, (1) pre-tri­al pub­lic­i­ty; (2) the de­ter­mi­na­tion of the tri­al with­in a rea­son­able time and; (3) the right to be tried be­fore an im­par­tial court.

Pre-tri­al pub­lic­i­ty

Where there is wide­spread and per­va­sive neg­a­tive pre-tri­al pub­li­ca­tion by the me­dia (in­clud­ing so­cial me­dia) that is ca­pa­ble of mak­ing a ju­ry be­lieve that a de­fen­dant is guilty or in­no­cent be­fore the tri­al be­gins, the Di­rec­tor of Pub­lic Pros­e­cu­tion (DPP) has a du­ty to take mea­sures to stop such pub­li­ca­tions.

Such mea­sures can in­clude is­su­ing a pub­lic state­ment to dis­con­tin­ue such pub­li­ca­tions and pros­e­cut­ing any­one who per­sists with such prej­u­di­cial pub­li­ca­tions. How­ev­er, if the DPP fails to in­ter­vene, the de­fence may seek to have the court sus­pend the tri­al tem­porar­i­ly or per­ma­nent­ly.

Tri­al with­in rea­son­able time

Where the DPP has failed to start a tri­al with­in a rea­son­able time and the de­fen­dant can show that they would suf­fer se­ri­ous prej­u­dice to the ex­tent that no fair tri­al would be pos­si­ble ow­ing to the de­lay, the de­fen­dant can ap­ply to the court to have the case sus­pend­ed.

The court would then bal­ance the right of de­fen­dant against the pub­lic in­ter­est in hav­ing them tried by tak­ing in­to ac­count, among oth­er things, the length of the de­lay; the rea­sons for the de­lay; the pre­vail­ing sys­tem of le­gal ad­min­is­tra­tion and the prej­u­dice to the ac­cused. As a rule of thumb, the court will not stop the case if the de­lay was sub­stan­tial­ly caused by the de­fen­dant.

Fair and im­par­tial hear­ing

Where a mag­is­trate or judge has an in­ter­est in the out­come of a case, they must dis­qual­i­fy them­selves from hear­ing that case. Put sim­ply, a judge should not hear a case which in­volves, for in­stance, one of their fam­i­ly mem­bers or a com­pa­ny which em­ployed them when they were a lawyer. The judge who hears the case is ex­pect­ed to de­liv­er jus­tice with­out fear or favour, af­fec­tion or ill-will. If there is breach of the right to a fair hear­ing, the con­vic­tion will be quashed and a re­tri­al may be or­dered.

There are sev­er­al mat­ters to con­sid­er in en­sur­ing the right to a fair tri­al. The is­sues high­light­ed above are crit­i­cal to con­sid­er be­fore the case starts to pre­vent per­sons be­fore the court from be­ing prej­u­diced or dis­ad­van­taged.

Ste­fan R Knights

Stu­dent,

Hugh Wood­ing Law School