Chapter 7 • The Right to a Fair Trial: Part II – From Trial to Final Judgement 3.2.3 The detention of witnesses The question of equality of arms arose under article 14 of the International Covenant in the case of Campbell, where the author complained that he had not had a fair trial and where his ten-year-old son had been detained to ensure that he would testify. The author was charged with assaulting his wife in connection with a marital dispute, and at the trial his son at first testified that he had not seen his father. According to the account given by the author, his son did not change his story, and at the end of the first day of the trial he was therefore taken to the police station, where he stayed overnight. The next day, he finally “allegedly broke down and testified against his father”.29 However, after the end of the court proceedings, the son retracted his testimony in a written statement. For the Human Rights Committee this was “a grave allegation”, and it emphasized “that the detention of witnesses in view of obtaining their testimony is an exceptional measure, which must be regulated by strict criteria in law and in practice”.30 In this case it was “not apparent from the information ... that special circumstances existed to justify the detention of the author’s minor child”, and, moreover, “in the light of his retraction, serious questions” arose “about possible intimidation and about the reliability of the testimony obtained under these circumstances”. The Committee therefore concluded that “the author’s right to a fair trial was violated”.31 Under article 14(1) of the International Covenant it is only lawful to resort to the detention of witnesses in exceptional circumstances. It is uncertain to what extent such a measure would be acceptable under the other treaties. 3.2.4 Judge’s instructions to the jury Several cases brought before the Human Rights Committee have concerned the alleged inadequacy of judges’ instructions to the jury. In these cases the Committee has consistently held that “it is generally for the appellate courts of States parties to the Covenant to evaluate facts and evidence in a particular case”, and it is not, therefore, “in principle”, for it “to review specific instructions to the jury by the judge in a trial by jury, unless it can be ascertained that the instructions to the jury were clearly arbitrary or amounted to a denial of justice, or that the judge manifestly violated his obligation of impartiality”.32 29 Communication No. 307/1988, J. Campbell v. Jamaica (Views adopted on 24 March 1993), in UN doc. GAOR, A/48/40 (vol. II), p. 42, para. 2.3. 30 Ibid., p. 44, paras. 6.3-6.4. 31 Ibid., p. 44, para. 6.4. 32 Communications Nos. 226/1987 and 256/1987, M. Sawyers and M. and D. McLean v. Jamaica (Views adopted on 11 April 1991), in UN doc. GAOR, A/46/40, p. 233, para. 13.5; emphasis added. Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers 261