Equality of Arms in UK Law

Fourthly, the offer should, as in this case, provide for equality of arms between the parties. Both should have the same right of access to information about the company which bears upon the value of the shares and both should have the right to make submissions to the expert, though the form (written or oral) which these submissions may take should be left to the discretion of the expert himself.

Secondly, trials are conducted on the basis of the principle of natural justice. A party has a right to know the case against him and the evidence on which it is based. He is entitled to have the opportunity to respond to any such evidence and to any submissions made by the other side. The other side may not advance contentions or adduce evidence of which he is kept in ignorance. The Privy Council said in the civil case of Kanda v Government of Malaya [1962] AC 322, 337:

We accept the following summary of the relevant case-law given by Mr Drabble: (i) the Convention guarantees rights that are practical and effective, not theoretical and illusory in relation to the right of access to the courts ( Airey para 24, Steel and Morris para 59); (ii) the question is whether the applicant's appearance before the court or tribunal in question without the assistance of a lawyer was effective, in the sense of whether he or she was able to present the case properly and satisfactorily ( Airey para 24, McVicar para 48 and Steel and Morris para 59); (iii) it is relevant whether the proceedings taken as a whole were fair ( McVicar para 50, P,C and S para 91); (iv) the importance of the appearance of fairness is also relevant: simply because an applicant can struggle through "in the teeth of all the difficulties" does not necessarily mean that the procedure was fair ( P,C and S para 91); and (v) equality of arms must be guaranteed to the extent that each side is afforded a reasonable opportunity to present his or her case under conditions that do not place them at a substantial disadvantage vis-à-vis their opponent ( Steel and Morris para 62).

It is true that the test for article 8 as it is stated in the Strasbourg jurisprudence (whether those affected have been involved in the decision-making process, viewed as a whole, to a degree sufficient to provide them with the requisite protection of their interests) differs from the test for article 6(1) (whether there has been effective access to court).

The jurisprudence of the European Court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly, within article 6 are not themselves absolute.

Before the master, the application for two experts in the field of obstetrics seems largely to have been based on the argument of "equality of arms". The master rejected that argument since he drew a sharp distinction between witnesses of fact and expert witnesses.

The principle of equality of arms is as readily identified in the common law as it is in the Human Rights Act. It is a principle that entitles any defendant to a fair trial. However, a fair trial does not necessarily entail representation by a Queen's Counsel merely because the Crown are represented by a Queen's Counsel. The importance is to have an advocate, whether he be a barrister or a solicitor, who can ensure that a defendant's defence is properly and adequately placed before the court.