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