Article 6(3)(c) essentially secures for the accused a right to a defence. It encompasses three guarantees for this purpose: a right to defend himself in person (pro se accused); a right to defend himself through legal assistance of his own choosing (privately retained counsel); and, in certain cases, an entitlement to state-funded legal assistance (legal aid). Each right is linked in the English text by ‘or’, implying that they are alternatives and that state discretion determines which right is conferred upon the accused, whereas the French text employs ‘ et’ (‘and’) between the second and third guarantees. The Court views the French version as authoritative given that it is more consistent with ensuring effective protection of the rights of the defence, hence an accused cannot be compelled to mount a pro se defence. The pro se accused, who assumes a burden of diligence, is not of particular concern to this chapter, except insofar as he raises the issue of whether counsel can be imposed upon him, for his condition is self-prescribed. The concept of equality of arms is at issue only when a disadvantageous procedural condition is the fault of the state and, within the context of Article 6(3)(c), this occurs most oft en in respect of the article's legal assistance provisions. It is these provisions that occupy the substance of the discussion herein.
The provision of an opportunity for legal assistance is a manifestation of the concept of equality of arms, hence the absence thereof may disadvantage the accused vis-a-vis the significant prosecutorial expertise of the state. Indeed, the value of the rights to challenge witness evidence and to adequate time and facilities – rights discussed in Chapters 3 and 4 respectively – is reliant heavily upon the right to engage legal assistance. The essence of this assistance for the purposes of criminal proceedings, and steps preliminary or incidental thereto, is the delivery of legal advice, the taking of relevant practical measures on behalf of the accused, and representation before any court. The norm in practice is that the provider of effective legal assistance will be a qualified lawyer, all references to counsel in this chapter being to this effect, though others may also be considered competent for this purpose where domestic rights to give legal advice and of audience permit.