Access to Legal Aid in Criminal Proceedings 1

Starting out…. Lack of attention to criminal legal aid at tertiary education level Limited statistical evidence and academic research But Growing awareness of the importance of access to legal aid to fair trial – in terms of both outcomes and processes 2

Learning outcomes Identify, discuss, and develop a critical understanding of the primary international norms and standards regarding access to legal aid in criminal justice systems Understand and critically assess how those norms and standards may be given practical effect having regard to the major criminal procedural traditions, and to criminal justice institutions, processes and cultures encountered in a range of jurisdictions Describe, and evaluate by reference to those international norms and standards, access to legal aid in different jurisdictions Consider, propose and constructively assess strategies for improving access to legal aid in different jurisdictions 3

Key Terms   ‘Arrest’ means the act of apprehending a person for the alleged commission of an offence or by the action of an authority. Thus, a substantive, rather than a formal, approach to the meaning of arrest should be adopted. ‘Detained’ person means any person deprived of personal liberty except as a result of conviction for an offence. ‘Detention’ means the condition of detained persons as defined above (General Assembly Resolution 43/173, Annex). The term ‘suspected’ is not explicitly defined, but the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems (UNPG) note that “the right to legal aid of suspects arises before questioning, when they become aware that they are the subject of investigation, and when they are under threat of abuse and intimidation, e.g. in custodial settings”. The term ‘charged’ is also not explicitly defined in the UNPG. The European Court of Human Rights has defined ‘charge’ as ‘the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence’. 4

Key Terms   ‘Justice process’ encompasses detection of the crime, making of the complaint, investigation, prosecution and trial and post-trial procedures, regardless of whether the case is handled in a national, international or regional criminal justice system for adults or juveniles, or in a customary or informal system of justice. (Definition derived from the Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime (Economic and Social Council resolution 2005/20, annex para. 9c) The term ‘legal aid’ is defined in the UNPG (2013, Annex, A. introduction para 8 and Principle 3) as follows:   ‘Legal aid’ includes legal advice, assistance and representation for persons detained, arrested or imprisoned, suspected or accused of, or charged with a criminal offence and for victims and witnesses in the criminal justice process that is provided at no cost for those without sufficient means or when the interests of justice so require. Furthermore, ‘legal aid’ is intended to include the concepts of legal education, access to legal information and other services provided for persons through alternative dispute resolution mechanisms and restorative justice processes. 5

Introduction to the international norms and standards concerning access to legal aid in criminal justice systems UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems (2012) Doha Declaration (2015) Mandela Rules, and Bangkok Rules UNODC Model Law on Legal Aid in Criminal Justice Systems with Commentaries UNODC/UNDP Global Study on Legal Aid UNODC/UNDP Early access to legal aid in criminal justice processes: a handbook for policymakers and practitioners 6

Identifying the need for legal aid, and the benefits and costs of legal aid The need for legal aid may be considered at two different levels: the needs of individuals involved in particular criminal cases; and the need for legal aid at the aggregate level. The Early Access Handbook identifies that assessing the need for legal aid (at the aggregate level) in criminal justice systems requires information on: the number of people who are involved in the criminal justice process as suspects and accused persons (and victims and witnesses) on a periodic basis; the number of people who are held in pre-trial detention, and who are imprisoned following sentence; the socio-economic and demographic profiles of such populations; and the availability of lawyers and others providing legal assistance. Unfortunately, even basic statistical information is either non-existent or insufficient in some countries, and assessing need often requires both quantitative and qualitative research to be conducted. 7

Key components of the right of access to legal aid The Early Access Handbook (2014, p. 44) identifies three significant variables that effect the implementation of the right of access to legal aid:   Regulations: that set out in detail the circumstances in which a person is entitled to legal aid, the rules regarding financial eligibility, whose responsibility it is to inform suspects and accused persons of their entitlement and how to exercise it, how legal aid is to be delivered and by whom and how actions taken and decisions made are to be verified. Procedures and protocols: for implementing the law and regulations in individual cases, for example, how regulations governing the provision of information about the right to legal aid are to be implemented in individual cases, how the provision of information and the decision of the suspect or accused person is to be recorded, the process by which a legal aid provider is to be contacted and what information has to be recorded. Appropriate professional cultures and attitudes: that ensure that all criminal justice actors work effectively to make sure that the right to early access to legal aid is respected. Key components of the right of access to legal aid 8

Access to legal aid for those with specific needs The United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems (UNPG) (Principle 10 on equity in access to legal aid), provides that special measures should be taken to ensure meaningful access to legal aid for: women, children and groups with special needs, including but not limited to, the elderly, minorities, persons with disabilities, persons with mental illnesses, persons living with HIV and other serious contagious diseases, drug users, Indigenous people, stateless persons, asylum seekers, foreign citizens, migrants and migrant workers, refugees and internally displaced persons. Access to legal aid for women - women in many countries face structural and cultural barriers to accessing legal aid, having inadequate knowledge of their rights, lacking the resources to find out what their rights are, and facing significant obstacles in exercising them. Access to legal aid for children - children face many difficulties in relation to criminal justice systems. Children, many of whom are living in poverty, are often the victims of violence, including from criminal justice officials. Children in contact with the criminal justice system are often dealt with as if they were adults, yet they may have difficulty in communicating and asserting their rights and needs. 9

Models for governing, administering and funding legal aid Guaranteeing access to legal aid requires institutional structures and mechanisms, and adequate resources, to ensure that the right to legal aid is both effective and sustainable. The United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems (UNPG) place responsibility on States to ensure that a comprehensive legal aid system is in place that is accessible, effective, sustainable and credible (2013, Principle 2). In practice, States that have a legal aid system take a variety of approaches to the governance and administration of legal aid. Including: Court administered legal aid Legal aid delivered by an authority that is not independent of government The establishment of specific independent or semi-independent legal aid authorities Legal aid provided through the public defenders office 10

Models for delivering legal aid services Public Defender schemes - Legal advice, assistance and representation is provided by lawyers (sometimes supported by paralegals or law students) who work in specialist offices, directly or indirectly funded by national or federal governments, civil society organizations or NGOs. Private lawyer schemes - Legal aid services are provided by lawyers working in private law firms, with variations depending on whether this is a contract scheme, an ex officio or panel scheme, or a pro bono scheme. Paralegal schemes – legal aid services are provided by paralegals who may or may not have a legal qualification (the extent of service provided depends on the model adopted in each country). Specialized legal aid service providers – legal aid services are provided for people from certain socio-demographic groups (children, women, ethnic minorities, prisoners, etc). Questions of availability, and prompt referral apply in each case 11

The roles and responsibilities of legal aid providers, and other criminal justice officials The Basic Principles on the Role of Lawyers known as the Havana Principles, set out the duties of lawyers in broad terms, as follows: To advise clients as to their legal rights and obligations, and as to the working of the legal system in so far as it is relevant to those rights and obligations To assist clients in every appropriate way, taking legal action to protect their interests To seek to uphold human rights and fundamental freedoms To loyally respect the interests of their clients (1990, Principles 13-15). In addition: Case-law of the European Court of Human Rights has identified several aspects of the lawyer’s role, in addition to that of providing advice and assistance to their client. The EU has sought, in the Directive on access to a lawyer (2013/48/EU), to establish minimum standards for all Member States with respect to the role of the lawyer. 12

Quality assurance and legal aid services A significant issue that arises in many jurisdictions is the quality of legal aid provision. In several countries, Codes of Conduct outline the importance of independence, while also providing practical guidance on matters relating to quality, such as excessive caseloads, and the duty to act impartially and without discrimination. Quality assurance is a problematic issue, especially as it raises the question of State interference with the independence of lawyers. The United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems (UNPG) provide that States also have a responsibility to “ensure that legal aid providers are able to carry out their work effectively, freely and independently” (Principle 12). While the administration and delivery of legal aid various among countries, independence of lawyers is fundamental. 13

In-class Case Study – “Sami” Sami is a girl aged 14 years. She grew up in a poor district of the capital city, but when she was 13 she was snatched from the street by a criminal gang and taken to a town in another part of the country. She does not speak the language used in that part of the country and does not really have a very clear idea of where it is in relation to the city that she came from. Several girls and boys are kept by the gang, and every day they are sent out to steal. They are often watched by a member of the gang, and severely punished if they are seen trying to talk to anyone, or seen to go outside of the area of the town that they are told to operate in. Sami has been beaten on several occasions and is often threatened with violence by gang members. Sometimes, she is made to have sex with men. One day she was caught by the person she tried to steal from, who called the police. She was taken to the police station.

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