Minimum guarantees in criminal proceedings
Public sector guidance sheet
This material is provided to persons who have a role in Commonwealth legislation, policy and programs as general guidance only and is not to be relied upon as legal advice. Commonwealth agencies subject to the Legal Services Directions 2005 requiring legal advice in relation to matters raised in this Guidance Sheet must seek that advice in accordance with the Directions.
What are minimum guarantees in criminal proceedings?
Minimum guarantees in criminal proceedings include:
- to be informed promptly of the charge
- to have adequate time and facilities to prepare a defence and to communicate with counsel
- to be tried without undue delay
- to be tried in person
- to legal assistance and to have legal assistance assigned to the accused, where the interests of justice so require, and without payment if the accused is unable to pay for it
- to cross-examine prosecution witnesses and to obtain the attendance and examination of witnesses on behalf of the accused on the same conditions as the prosecution
- to have the assistance of an interpreter
- to be free from self-incrimination
- to have a conviction and sentence reviewed by a higher court
- to be paid compensation where a criminal conviction has been overturned or where a person has been pardoned in situations involving a miscarriage of justice
- not to be tried or punished more than once.
Where do minimum guarantees in criminal proceedings come from?
Australia is a party to seven core international human rights treaties. Minimum guarantees in criminal proceedings are contained in article 14(3), (5), (6) and (7) of the International Covenant on Civil and Political Rights (ICCPR).
Article 14 also enshrines the right to a fair trial and fair hearing and the right to the presumption of innocence. For more information on these rights see the Guidance Sheets on Fair trial and fair hearing rights and Presumption of innocence.
See also article 40 of the Convention on the Rights of the Child (CRC).
When do I need to consider the minimum guarantees in criminal proceedings?
You will need to consider minimum guarantees in criminal proceedings when you are working on legislation, a policy or a program that:
- regulates aspects of criminal trial procedure, including the filing and serving of charges, and content of charge sheets, access of the accused to witnesses, information and evidence, pre-trial disclosure, timetables for preparing for trial and giving notice of hearings
- affects the capacity of investigators and prosecutors to prepare for trial and of courts to conduct trials, for instance, by allocating resources
- affects eligibility for legal assistance in criminal matters
- affects legal representation, including the right of the accused to select a legal representative of his or her choice
- affects the law of evidence governing the examination of witnesses
- allows special procedures for the examination of witnesses, for instance the use of protective screens or the giving of evidence by video link
- governs the availability of interpreters and translators in criminal proceedings
- affects the law relating to self-incrimination
- affects the availability of appeals from convictions and sentences in criminal proceedings
- governs remedies available to persons whose criminal convictions have been overturned or who have been pardoned in situations involving a miscarriage of justice
- affects the law relating to double jeopardy
- allows the continued incarceration of persons, for example serious sex offenders , following completion of sentence, or
- provides international legal assistance or cooperation, including development of legislation or strengthening criminal justice systems.
This list should not be regarded as exhaustive.
What is the scope of minimum guarantees in criminal proceedings?
Articles 14(3), (5), (6) and (7) of the ICCPR establish a number of guarantees that must be observed in criminal proceedings. Each will be dealt with in turn.
To be informed promptly of the charge
This right is designed to enable the accused to prepare a defence. It requires that the accused be given information regarding the law and the alleged facts on which the charge is based, at the time the charge is laid and when the charge is amended, if applicable. The information may be given orally or in writing. There is no requirement to disclose evidence at this point. Whether any delay in informing the accused will amount to a violation of this right would depend on the cause of the delay. A violation is less likely if the delay was caused or contributed to by the accused. The information must be communicated in a language the accused understands if the accused does not speak or understand English.
To have adequate time and facilities to prepare a defence and to communicate with counsel
The purpose of this right is to enable the accused to prepare his or her defence properly and to put the accused on an equal footing with the prosecution. What will constitute adequate time will depend on the circumstances of each case, including the complexity of the case and the accused's access to witnesses and evidence. The reference to facilities means that the accused must be given access to documents and other evidence necessary for preparation of his or her defence. The accused should have the opportunity to be represented by a lawyer and to communicate with the lawyer in an unrestricted way in conditions that allow for confidentiality.
To be tried without undue delay
This right reflects the common law principle that 'justice delayed is justice denied'. It relates not only to the time by which a trial should commence, but also to the time by which it should conclude and judgment be given. Whether a delay is 'undue' will depend on the circumstances of each case. Critical factors would include whether the accused is in custody, the complexity and seriousness of the case and the availability of witnesses, including experts. A delay attributable to the accused is unlikely to violate this right.
To be tried in person
Trials in absentia may occur only in the most exceptional of circumstances, and would be permissible only where the accused has been given ample notice and opportunity to attend but has failed to do so.
To legal assistance and to have legal assistance assigned to the accused, where the interests of justice so require, and without payment if the accused is unable to pay for it
The accused should be informed about his or her entitlements to legal assistance. The obligation to provide legal assistance is restricted to cases in which the interests of justice require it. The right does not entitle the accused to an unrestricted choice of a lawyer provided under legal assistance. The High Court has held that where a person is charged with a serious criminal offence but cannot afford legal representation, the absence of any legal representation will be relevant to the fairness of the trial. In the case of an appeal, the country is entitled to take into account the reasonable prospects of success of the appeal in deciding whether or not to grant legal assistance.
To cross-examine prosecution witnesses and to obtain the attendance and examination of witnesses on behalf of the accused on the same conditions as the prosecution
The right to cross-examine prosecution witnesses would normally require evidence to be given in person at the trial, so that the reliability and credibility of the witness can be tested. However, evidence given other than in person, for instance by way of written statement, may not violate this right, provided that the reliability and credibility of the witness giving the statement can still be tested. A violation will be less likely if the evidence can be independently corroborated. Special methods to protect a vulnerable witness, for example by the use of video link, or where the witness is shielded from the accused, may be permissible if it is strictly necessary to use them. Each case should be considered on its merits, giving careful consideration to the rights of the accused under article 14(3)(e). It is a matter for the accused to decide who should be called as a defence witness. If a defence witness fails to appear, the court may need to take steps to secure the witness's attendance, particularly if the accused is facing a serious charge and a heavy penalty.
To have the assistance of an interpreter
This right applies to persons who do not understand or speak English. It does not give a right to an interpreter without charge to a person who prefers to use a language other than English. The right applies at all stages, including during police interviews and court hearings. Interpreters must be competent and preferably accredited. For example, the Australian and Northern Territory governments have established a memorandum of understanding for the provision of interpreter services to Indigenous Australians.
In relation to the translation of documents used in evidence, the UN Human Rights Committee has stated that there is no right for an accused who does not understand the language used in court to be provided with translations of all relevant documents, provided that they are made available to his or her counsel.
To be free from self-incrimination
The privilege against self-incrimination has long been recognised by the common law and applies unless expressly abrogated by statute. As part of the privilege, an accused may choose not to give evidence at trial, and no adverse inference is to be taken from the accused's refusal. Self-incriminating evidence that is found by the court to have been unfairly obtained, such as a confession made under duress, must be excluded at trial. The use of compulsorily obtained evidence, such as DNA samples, that has an existence independently of the will of the accused, does not violate this right.
To have a conviction and sentence reviewed by a higher court
For this right to have substance, the same protections afforded to the accused at trial should also apply on appeal. The court hearing the appeal should have the power to overturn or affirm the conviction or sentence. An appeal should generally be held in public, although if the issues are not complex and it would not prejudice the accused, an appeal can be heard by the court 'on the papers'. The right does not require the appeal court to conduct a retrial of the factual issues and does not require that further evidence be led. The opportunity to 'seek leave to appeal' would satisfy this right if the application for leave entails a full review of the evidence and the law.
To be paid compensation where a criminal conviction has been overturned or where a person has been pardoned in situations involving a miscarriage of justice
This right requires the payment of compensation to persons who have been convicted of a criminal offence and punished accordingly, if their conviction has been reversed or they have been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice. It does not require compensation if the conviction is set aside on appeal, before the judgment becomes final. Nor is compensation required in the case of a pardon that is humanitarian or discretionary in nature. Australia has made a reservation to article 14(6) that 'the provision of compensation for miscarriage of justice in the circumstances may be by administrative procedures rather than pursuant to specific legal provision'. This means that the availability of a remedy for a miscarriage of justice need not be provided for by statute. During Australia's Universal Periodic Review in 2011, the Australian Government committed to establishing a systematic process for the regular review of Australia's reservations to international human rights treaties.
Not to be tried or punished more than once
The prohibition on double jeopardy is a fundamental safeguard in the common law. It means that a person who has been convicted or acquitted of a criminal charge is not to be re-tried for the same or substantially the same offence. The right applies after all avenues for appeal or review have been exhausted, or after time limits for appeal or review have passed. It does not prevent a new trial when an appeal court has found a conviction to be a miscarriage of justice. The UN Human Rights Committee has stated that article 14(7) does not prohibit the resumption of a criminal trial justified by exceptional circumstances, such as the discovery of evidence which was not available or known at the time of the acquittal. Penalties or sanctions imposed by professional disciplinary bodies would not normally be regarded as a punishment for this purpose. The right not to be punished more than once may be called into question by the continued detention of persons, beyond the period for which a court has imposed imprisonment, for example persons convicted of serious sexual offences. The right applies only to subsequent trials within the one country, not to a subsequent trial in a different country to that of the original trial.
Children in the criminal process
Guidance on the protections for children in the criminal process is contained in the Guidance Sheet on Rights of parents and children.
Can minimum guarantees in criminal proceedings be limited?
Under article 4 of the ICCPR, countries may take measures derogating from certain of their obligations under the Covenant, including minimum guarantees in criminal proceedings'in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed'. Such measures may only be taken 'to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin'.
The UN Human Rights Committee has indicated that strict limitations would apply to any derogation under article 14.
As indicated above, in certain limited circumstances, limitations on some of the minimum guarantees in criminal proceedings are permissible.
Which domestic laws relate to minimum guarantees in criminal proceedings?
The Evidence Act 1995 contains a number of provisions relevant to minimum guarantees in criminal proceedings:
- Section 20 provides that any comment made about the failure of the defendant to give evidence must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned.
- Section 30 provides that a witness may give evidence about a fact through an interpreter unless the witness can understand and speak English sufficiently to enable the witness to understand, and to make an adequate reply to questions that may be put about the fact.
- Sections 128 and 128A make provision about dealing with an objection made by a witness that the giving of evidence may tend to show that witness has committed an offence.
Criminal offences under federal law and under the laws of each state and territory are primarily heard in state and territory courts. Sections 68 and 39 of the Judiciary Act 1903 confer federal jurisdiction on state and serritory courts for criminal matters. Appeals are therefore normally heard within the appeal system of each state or territory court.
There are a small number of federal criminal matters that may be heard and appealed within the Federal Court of Australia. Section 30AA of the Federal Court of Australia Act 1976 allows the Federal Court to hear criminal appeals from the Federal Court's original jurisdiction and from state and territory Courts, in some circumstances.
Section 73 of the Constitution and Part V of the Judiciary Act provides for the appellate jurisdiction of the High Court. The High Court hears appeals, by special leave, from the Federal Court of Australia, courts exercising federal jurisdiction and state and territory Supreme Courts.
What other rights and freedoms relate to minimum guarantees in criminal proceedings?
Minimum guarantees in criminal proceedings may also be relevant to the other rights in relation to legal proceedings contained in article 14 of the ICCPR, namely the right to a fair trial and fair hearing, and the right to the presumption of innocence.
The right may also be relevant to:
- the prohibition on torture and cruel, inhuman or degrading treatment in article 7 of the ICCPR
- the right to be free from arbitrary arrest and detention in article 9 of the ICCPR
- the right to humane treatment in detention in article 10 of the ICCPR.
Articles from relevant Conventions
International Covenant on Civil and Political Rights
- In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
- to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
- to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
- to be tried without undue delay;
- to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
- to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
- to have the free assistance of an interpreter if he cannot understand or speak the language used in court;
- not to be compelled to testify against himself or to confess guilt.
- Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.
- When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.
- No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.
See also: CRC article 40.
Where can I read more about minimum guarantees in criminal proceedings?
- United Nations, Office of the High Commissioner for Human Rights (OHCHR), Human Rights Bodies (human rights treaty bodies that monitor implementation of the core international human rights treaties)
- UN Human Rights Committee General Comment No 32
- Attorney-General's Department, Legal Assistance
- High Court decision in R v Dietrich (on legal representation and the right to a fair trial)
- High Court decision in Sorby v Commonwealth (on the privilege against self-incrimination)