What makes a fair trial?

By Sabrina Mahtani and Jennifer Riddell 

What are fair trials?

Fair trials have special protections that make sure everybody accused of a crime gets treated fairly, or justly, within the criminal justice system.

AdvocAid’s paralegal Nenny provides legal aid and practical help to female prisoners. Photo: AdvocAid
AdvocAid’s paralegal Nenny provides legal aid and practical help to female prisoners. Photo: AdvocAid
Why are fair trials important?

Fair trials are critically important in every country. They ensure that governments cannot convict someone or take away their liberty unless they follow fair and just processes. They make sure that anyone accused of a crime can understand what is happening to them. Fair trials ensure that people can trust and have confidence in the criminal justice system in their country. 

Governments have the right to maintain law and order and hold people accountable for any crimes they have committed. However, the serious step of taking away someone’s liberty can only be justified after they have been given a fair trial.

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 10, Universal Declaration of Human Rights

The right to a fair trial is a central cornerstone of the Universal Declaration of Human Rights. This declaration was adopted in 1948, and is contained in many international and regional human rights treaties, such as the International Covenant on Civil and Political Rights (which has been ratified by 160 countries). The right to a fair trial is included in many constitutions around the world. Though individual countries will have varying rules and procedures around fair trial standards, there are some basic principles about what makes a fair trial. 

What are the basic principles of a fair trial?


1. The right to information
 

Everyone who is arrested or detained must be told what their rights are and how to access these rights. They include: 

  • the right to notify someone of their situation 
  • the right to legal representation/advice 
  • the right to medical assistance 
  • the right to challenge the lawfulness of their detention 
  • the right not to incriminate themselves, including 
  • the right to remain silent the right to complain about their conditions 

Foreign nationals also have the right to communicate with consular officials or an appropriate international organisation. 

These rights can sometimes be restricted. For example, a person’s right to notify someone of their arrest may be delayed if the police think someone else is involved in the crime and there is a concern that the arrested person may warn the other individual. 

Most importantly, people are entitled to know what they are accused of, in detail and in a language they understand. 

2. The right to a lawyer 

Every person who is arrested or detained must be told of their right to have legal representation. This can be either their own lawyer or a competent lawyer who is assigned to assist them if required, in the interests of justice – free of charge if they cannot afford to pay. They have the right to confidential communications with their lawyer. 

3. The right to be heard by a competent, independent and impartial tribunal 

Courts must be impartial and independent of the government, the police or any other influencing factor. The government must ensure that this happens and that there are enough staff members for the criminal justice system to function effectively throughout the country. The government must address any corruption or discrimination within the administration of justice. 

People have the right to present their case before a decision is made, see the evidence against them and be given reasons for any decisions made by the court. 

4. The right to a public hearing 

Criminal trials must be heard in public (except in rare cases, such as where children are involved). Anyone can attend a trial, including victims, the media and the general public. This helps to monitor what happens in court, provides transparency and builds trust in the criminal justice system. 

5. The right to innocence 

One of the most important fair trial rights is that everyone accused of a criminal offence is presumed innocent until and unless they are proved guilty according to law after a fair trial. 

6. The exclusion of evidence obtained in violation of international standards 

If statements and other forms of evidence have been obtained as a result of torture, ill-treatment or other forms of intimidation, they must be excluded from evidence in all proceedings. A fair trial may also require evidence to be excluded if it was obtained in a manner that violates other international human rights standards. The only exception to this is evidence of abuse in a case against someone who is accused of torture or other abuse. 

7. The right to have adequate time and facilities necessary to prepare a defence, and the right to be heard within a reasonable time 

People charged with a criminal offence must have time to prepare their defence, and facilities such as a private place to meet with their lawyer. This includes time to review the evidence against them and find evidence to support their account. This evidence might be witnesses to what happened, or expert reports such as medical evidence. 

Everyone charged with a criminal offence has the right to be tried without undue delay. The length of time judged reasonable for preparation and for the right to be heard will depend on the circumstances of the case, such as the complexity of the case and the conduct of the accused person and the authorities. 

8. The right to be present at trial 

Everyone charged with a criminal offence has the right to be tried in his or her presence and to an oral hearing. This gives them the chance to hear and challenge the prosecution case (the case against them) and present their defence. Their defence is usually their account of what happened, and may include any witnesses that they want the court to hear from (see Point 9 below). 

The person on trial does not need to present a defence; it is their choice. However, this decision should only be taken with advice from a lawyer. 

Sometimes, people can be convicted in their absence – for example, if they choose not to come to court on the day of their trial and they have no excuse for this. However, if they were sick or there is another good reason they did not attend their trial, then they should receive a new trial before a different court. 

9. The right to call and examine witnesses 

People charged with a criminal offence have the right to call witnesses on their behalf and to examine witnesses against them. This can be done by their lawyer or by the accused individuals themselves in most circumstances. Sometimes a person may not be allowed to question certain prosecution witnesses – for example, if he is accused of assaulting them. Victims and witnesses of crime also have rights, and this allows them to be protected and kept safe. The requirement of fairness must always be respected. 

10. The right to an interpreter and translation 

People charged with a criminal offence have the right to the assistance of a competent interpreter, free of charge, if they do not understand or speak the language used in court. 

11. The right to appeal 

Everyone convicted of a criminal offence has the right to have the conviction and sentence reviewed by a higher tribunal. 

What are the challenges to having fair trials?

Fair trials do not always happen in many countries because of institutional weaknesses, such as corruption, insufficient or poorly trained judges and lawyers, and people’s lack of awareness of their rights. The corruption can run deep and can go from the court administrative officers, who may decide which case is heard next, right up to an appeal court judge. 

What can you do to help achieve fair trials in your country?

1. The first step is to know what your rights are. Then you can try to claim them and can share this knowledge with others. 

2. Get information about lawyers or legal aid NGOs that you can contact if you need assistance. Some may offer legal rights training. 

3. Be aware of the institutions in your country to which you can report violations of fair trial rights. These include the Human Rights Commission and the ombudsman (an official who investigates people’s complaints against public officials and institutions). 

4. Be aware of international bodies that you can contact about violations of fair trial rights (eg UN Special Rapporteurs*) . 

5. Ask your government representatives to do more to ensure fair trial rights (eg more funding for courts, police and legal aid). 

For more information, see the Amnesty International Fair Trial Manual

*The contact details of UN Special Rapporteurs are available online, listed by country and thematic area

A shorter version of this article appeared in Footsteps 104 on prisons. 

Sabrina Mahtani is the co-founder of AdvocAid, an organisation providing education, empowerment and access to justice for girls and women in Sierra Leone. Email: info@advocaidsl.org 

Jennifer Riddell is a criminal lawyer based in England.