This module is a resource for lecturers
Topic 2. 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. Topic 2 is concerned with the latter, that is, the level of need for legal aid services in any particular country. The need for legal aid at the individual level is considered under Topic 3.
The Early Access Handbook, jointly produced by UNODC and the United Nations Development Programme (UNDP) includes the following in a 'national strategy checklist':
Identify the need and likely demand for early access to legal aid, including the number of suspects and accused persons who are eligible, the demographic characteristics of the population of suspects/accused persons, their geographical location and the needs of vulnerable groups and those with special needs (2014, p. 116).
The Handbook is concerned only with early access to legal aid, but a similar approach may be adopted in respect of the need for legal aid throughout the criminal justice process. In addition, since the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems ( UNPG) make provision for access to legal aid for victims and witnesses, they should be included in any needs assessment.
Assessing the need for legal aid is well-established in respect of civil (as distinct from criminal) law. However, it is less developed in relation to criminal law generally, and access to legal aid in criminal justice systems more specifically. As the extract from the Early Access Handbook set out above suggests, assessing the need for legal aid 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.
One aspect of the criminal justice process that may be focused on, in the context of assessing need for access to legal aid, is the pre-trial detention population. This provides a good example because: (a) Indicator 16.3.2 of the United Nations global indicator framework identifies unsentenced prisoners as a proportion of overall prison population as a relevant indicator of Target 16.3: Promote the rule of law at the national and international levels and ensure equal access to justice for all and (b) it has been demonstrated in a range of jurisdictions that pre-trial detention is over-used, and that legal advice, assistance and representation can reduce the number of inappropriate detentions (see for example: Early Access Handbook, 2014, ch. II)
This leads to consideration of another aspect of access to legal aid, which is the costs and benefits of ensuring effective access. One of the factors inhibiting the development of effective legal aid schemes is the assumption that such provision involves significant costs to the State. However, what is often overlooked is the potential benefit of legal aid, both in financial and social terms. The Introduction to the UNPG sets out the issues as follows:
3. A functioning legal aid system, as part of a functioning criminal justice system, may reduce the length of time suspects are held in police stations and detention centres, in addition to reducing the prison population, wrongful convictions, prison overcrowding and congestion in the courts, and reducing reoffending and revictimization. It may also protect and safeguard the rights of victims and witnesses in the criminal justice process. Legal aid can be utilized to contribute to the prevention of crime by increasing awareness of the law.
4. Legal aid plays an important role in facilitating diversion and the use of community-based sanctions and measures, including non-custodial measures; promoting greater community involvement in the criminal justice system; reducing unnecessary use of detention and imprisonment; rationalizing criminal justice policies; and ensuring efficient use of State resources.
The benefits of legal aid at the early stages of the criminal process are set out more fully in Chapter II of the UNODC & UNDP Early Access Handbook.