In this special article for Business News, Tim Swift, president of the Isle of Man Law Society, argues on the issue of the right to a fair trial.

Here is what he has to say:

The right to a fair trial is the key to the Rule of Law.

It is a right enjoyed predominantly in criminal matters but extends well beyond these to include all issues before all courts and tribunals.

The court process up to and including a trial must be fair to both the prosecution and defence.

Fairness means fairness to both sides not just one. The trial is not fair if the procedural dice are loaded in favour of one side or the other, or if there is no equality of arms.

The concept of equality of arms has long been embodied within British legal systems but has been specifically so by the European Court of Human Rights.

It enshrines the concept that both parties should be able to have legal representation, obtain evidence, call witnesses, cross examine witnesses and explore evidence both in support of and against their cases.

It also specifically requires the provision of financial support to allow a person of limited means to secure legal representation.

Without funds a defendant does not have access to independent legal advice and representation. They are unable to exercise their rights, never mind being made aware of what they are!

Being prosecuted in relation to a criminal offence is unfortunately seldom a cheap process for all sorts of reasons and you have basically two options: pay privately or secure legal aid.

You may never have given any thought as to how you would fund a criminal defence. You should!

Anyone can be wrongly accused of a criminal offence through error, malice or unfortunate twists of fate.

An example based, on reality, is that you could be involved in a road traffic accident. You were driving along and the road ahead appears clear. On the passenger seat sits your iPad or mobile phone. Ahead you see a car. It has stopped, put on its hazards and appears to be waiting for someone.

You check your mirrors, indicate and pull out to go round the car.

Suddenly you notice a teenager sprint in front of you, but unfortunately your emergency stop happens to late. You have knocked them down. The police investigate the accident and find your mobile phone and iPad.

They are told by the teenager’s mother that you were ‘fiddling with something’ and in combination with other circumstantial evidence, you are faced with a criminal prosecution of causing death by dangerous driving.

You need legal representation. If you are eligible you will be represented by an advocate, but what if you find that you are not eligible for legal aid. Prosecutions such as this are expensive and you may have to borrow money to fund your defence.

At the end of a tortuous and stressful experience, thankfully your defence is successful at trial.

The teenager had been playing ‘chicken’ in front of his friends.

You had no chance to stop in time. But you have had to pay for representation. You look to reclaim the money you have had to pay out to fund your successful defence.

Unfortunately if you live in the UK and the prosecution is there, you are only given a modest contribution towards your legal costs and the rest you have to pay yourself. You are in debt. You have been hit by what is known by many in the UK as ‘the innocence tax’ in that you can be prosecuted by the state, refused legal aid, forced to pay privately and not be refunded. Is that fair?

Thankfully this would not be the situation in the Isle of Man as you can secure the payment of most of your legal costs.

We do not have ‘the innocence tax’. If you are of limited means then legal aid on the Isle of Man has, as yet, not been subject to the disastrous cutbacks in the UK which have led, when combined with the general chronic under funding of the criminal justice system, to the near collapse of their criminal justice system.

Whether you are or are not eligible for legal aid you have access to a fair trial.

Anyone can be caught up in the criminal justice system. It does not matter whether you are innocent or not.

Prosecutions turn on evidence. What verdict a court returns at a trial is based on that evidence.

In order to present your defence and address the evidence, you need good and independent legal representation.

You need to have a fair trial. To get this you need to know that you can fund your defence.

We in the Isle of Man know that if we have a medical problem we can call upon the state to do its utmost to save us and pay for that treatment or operation.

You may not agree, but in my opinion, second only to health, your liberty and reputation are the most important things you have, as without these, you run the risk of losing your family, your friends, your home and your work. Then what do you do?