Chapter 6 • The Right to a Fair Trial: Part I – From Investigation to Trial In the light of the outcome in the Wright case, it might be asked whether, in death penalty cases or in other cases where a heavy prison sentence may be imposed on the accused at the end of his or her trial, it is fair to lay the entire burden for compliance with article 14(3)(b) on the defence. In the interests of justice, might the judge concerned perhaps have a duty to see to it that the accused is indeed ensured adequate time and facilities for the preparation of his defence? The case of Smith In the case of Smith, another death penalty case, the Committee concluded that article 14(3)(b) had in fact been violated. In this case the author also complained that his trial was unfair, and that he had inadequate time to prepare his defence since he could only consult with his lawyer on the opening day of his trial and that, as a result, a number of key witnesses could not be called. According to the Committee it was “uncontested that the trial defence was prepared on the first day of the trial”; one of the author’s court-appointed lawyers asked another lawyer to replace him, and another had withdrawn the day prior to the beginning of the trial. The attorney who actually defended the author was present in court at 10 a.m. when the trial opened and asked for an adjournment until 2 p.m. “so as to enable him to secure professional assistance and to meet with his client, as he had not been allowed by the prison authorities to visit him late at night the day before”.103 The request was granted and the lawyer consequently “had only four hours to seek an assistant and to communicate with the author, which he could only do in a perfunctory manner”.104 This, the Committee concluded, was “insufficient to prepare adequately the defence in a capital case” and there was moreover “the indication that this affected counsel’s possibility of determining which witnesses to call”.105 Consequently, these facts constituted a violation of article 14(3)(b) of the Covenant.106 In the Smith case the defence actually asked for a brief adjournment. What do you think the Committee would have decided if such an adjournment had not been requested by the defence lawyer? Incommunicado detention: Article 14(3)(b) was also violated in the case of Marais, who was unable to communicate with his lawyer and to prepare his defence, except for two days during the trial itself. Although the lawyer had “obtained a permit from the Examining Magistrate to see his client, he was repeatedly prevented from doing so”, his client being held incommunicado.107 Both article 14(3)(b) and article 14(3)(d) were violated in the case of Yasseen and Thomas, where Yasseen had no legal 103 Communication No. 282/1988, L. Smith v. Jamaica (Views adopted on 31 March 1993), UN doc. A/48/40 (vol. II), p. 35, para. 10.4. 104 Ibid., loc. cit. 105 Ibid. 106 Ibid. 107 Communication No. 49/1979, D. Marais, Jr. v. Madagascar (Views adopted on 24 March 1983), UN doc. GAOR, A/38/40, p. 148, para. 17.3 and p. 149, para. 19. 246 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers