Equality of Arms is a Blessed Phrase: Its Meaning under International Law
![handle is hein.journals/sljinl21 and id is 193 raw text is: (2009) 21 (No.1) Sri Lanka IL 187
'EQUALITY OF ARMS IS A BLESSED PHRASE':'
ITS MEANING UNDER INTERNATIONAL LAW
Roger Gamble *
Noel Dias **
ABSTRACT
This paper discusses the meaning ofthe 'equality ofarms'principle in
relation to fair trial protections under Art 6 of the European
Convention for the Protection of Human Rights and Fundamental
Freedoms (the ECHR) and Art 14 ofthe International Covenant on
Civil and Political Rights (the ICCPR). We discuss the particular
rights to which the equality of arms principle extend - the right to be
tried in one ' presence; to defend oneself in person; to choose one 's
own counsel; to be informed of the right to counsel; and the right to
receive free legal aid.
In essence, the equality of arms principle speaks to the virtues of
procedural equality: the idea that both parties should be treated in a
manner ensuring that they have an approximately equal opportunity
to make their case during the course of a trial. Such protections are
guaranteed in most domestic legal systems, are enshrined in relevant
international instruments (such as the two we examine in this paper)
and are the procedural bedrock of all major international courts and
tribunals.
The authors conclude that everyone charged with a criminal offense
has a primary, and generally, unrestricted right to defend himself
This right can be forgone and counsel can be chosen by the accused
(subject to the usual constraints such as availability of counsel and
the defendant's capacity to pay). Where the defendant is unable to
afford counsel, he or she has a right to legal aid but only where the
interests ofjustice so requires.
* Lecturer, Department of Law and Taxation, Monash University, Melbourne, Australia.
** Senior Lecturer, Faculty of Law, University of Colombo, Sri Lanka.
1 RTA v Dederer [2007] HCA 42, Callinan J at para298
187](ViewImageLocal?handle=hein.journals/sljinl21&div=10&collection=&method=preview&ext=.png&size=3)
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Equality of Arms is a Blessed Phrase: Its Meaning under International Law
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