the killing. On a charge of murder it shall be for the defense to prove that the person charged is 5 by virtue of this section not liable to be convicted of murder. 15. Regarding the second claim, the Petitioner alleges that the principle of equality of arms 6 was not respected. Petitioner claims that Mr. Cadogan was not provided with independent expert psychiatric assistance by the State, whereas the prosecution was able to call on the services of expert witnesses to prove its case. The Petitioner states that since the burden of proof for diminished responsibility rests on the defendant, and because the jury is expected to make findings of fact about the defendant’s mental state at the moment the crime was perpetrated, an expert opinion is essential for the defense of diminished responsibility. In this connection, the Petitioner claims that the State has previously declared that “it is always open to the defense to arrange for the Applicant to be seen by a psychiatrist attached to the Crown’s Psychiatric Hospital” to secure free psychiatric services. However, the petitioner claims that Mr. Cadogan did not seek such assistance from the State on the belief that a psychiatrist attached to the Crown would not be capable of providing an impartial expert opinion, given that they are salaried officers who rely on the Crown for their advancement. The petitioner claims that the State’s failure to provide an independent expert deprived Mr. Cadogan of an adequate opportunity to present his defense. The petitioner therefore pleads that persons charged with murder and who are consequently convicted and sentenced to the mandatory application of the death penalty should be entitled to funded expert psychiatric assistance. 16. As to the third claim, the Petitioner states that the right to an Attorney-at-Law in this matter should be examined against the offence for which the applicant was charged and the potential penalty. He alleges that any constitutional safeguard of the right to a lawyer should refer to the penalty to which the applicant is exposed in his charge, whereas the constitutional and legal safeguards of this right provided for by the Barbados Constitution do not refer to the potential penalty of the defendant. The Community Legal Services Act 7 does provide for legal aid, but without distinguishing between various types of crimes which could require legal assistance. The Petitioner states that, considering the gravity of Mr. Cadogan’s potential penalty, the defendant should have had access to a junior attorney and to a senior attorney. The Petitioner also alleges that the constitutional right to counsel ought to require that an accused be advised of any system for free, preliminary legal advice which exists in the jurisdiction at the time of his detention and how such advice can be accessed. The Petitioner claims that the fact that the police had not informed Mr. Cadogan of his “option to obtain free and immediate legal advice through the existing legal system in Barbados” therefore violated his right to a fair trial. 17. As to the fourth argument, the Petitioner states that Mr. Cadogan was deprived of his right to a fair trial because his attorney did not raise the defense of diminished responsibility and should have objected to the admission of some items of evidence during the trial, which the petitioner claims amount to errors which deprived Mr. Cadogan of his right to a fair trial. 5 6 The petitioner cites the Offences against the Person Act Section 4 (1). The petitioners cite in support of their contentions: “In the opinion of this Court, for “the due process of law” a defendant must be able to exercise his rights and defend his interests effectively and in full procedural equality with other defendants. It is important to recall that the judicial process is a means to ensure, insofar as possible, an equitable resolution of a difference. The body of procedures, of diverse character and generally grouped under the heading of the due process, is all calculated to serve that end. […] To accomplish its objectives, the judicial process must recognize and correct any real disadvantages that those brought before the bar might have, thus observing the principle of equality before the law and the courts and the corollary principle prohibiting discrimination.” Cf. I/A Court H.R., The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law. Advisory Opinion OC-16/99 of October 1, 1999 §117 and 119 as cited in the Report on the Access to Justice as a guarantee of Economic, Social and Cultural Rights OEA/Ser.L/V/II.129, Doc. 4, 7 September 2007 § 187. Further, the principle of equality of arms also includes provisions related to the right to a fair trial since “This stipulation is drawn in part from the very nature and functions of procedural protections, which must in all instances be governed by the principle of fairness and which in their essence must be designed to protect, to ensure, or to assert the entitlement to a right or the exercise thereof. This includes recognizing and correcting any real disadvantages that persons concerned in the proceedings might have and thereby observing the principle of equality before the law and the corollary principle prohibiting discrimination of any kind.” Cf. Report on Terrorism and Human Rights OEA/Ser.L/V/II.116 Doc. 5 rev. 1 corr., 22 October 2002 § 399 as cited in Report on the Access to Justice as a guarantee of Economic, Social and Cultural Rights § 189. 7 Cf. Community Legal Services Act, Section 11 (1) and 20. 3