This module is a resource for lecturers
Topic 7. Roles and responsibilities of legal aid providers, and other criminal justice officials
The United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems ( UNPG) distinguish between 'legal aid provider' and 'legal aid service provider'. The legal aid provider is the individual who provides legal aid, for example, a lawyer or paralegal. The legal aid service provider is the organization that provides legal aid which may, for example, employ the legal aid provider (see Annex, A. introduction para. 9). Whilst both are important in ensuring access to legal aid, Topic 7 concentrates on the roles and responsibilities of legal aid providers. In addition, it briefly deals with the roles and responsibilities of other criminal justice officials and, in particular, police officers.
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).
The role of the lawyer is often described, especially in literature from the USA, as that of the 'zealous advocate' and that characterization is, to an extent, reflected in the Havana Principles. However, in practice the role is often circumscribed by national laws and regulations; for example, a lawyer may have obligations to the courts, to the administration of justice, and to other parties to proceedings, as well as to their clients. Such limitations and restrictions may be further reflected in professional codes of conduct and ethical codes issued by bar associations.
In some countries, the regulatory limitations are quite specific. For example, in countries such as the Netherlands and France, regulations restrict the right of a lawyer who is present during police interrogation of their client to intervene during that interrogation. In other countries, however, such as in England and Wales, regulations specifically permit lawyers to intervene in a wide range of circumstances. This, in part, may be explained by the differing conceptions of the lawyer's role in adversarial and inquisitorial systems, which is relevant not only at the early stages of the criminal justice process, but throughout that process. Thus, the role of the defence lawyer at trial in an inquisitorial system is quite different from, and more limited than, the role of a defence lawyer in an adversarial trial.
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. These include ensuring the legality of measures taken in the course of the proceedings, protecting a client's privilege against self-incrimination and the right to silence, and 'controlling' the conditions under which a client is detained (see, for example, European Court of Human Rights, Salduz v Turkey, No. 3639/10, 27 November 2008 and European Court of Human Rights, Dayanan v Turkey, No. 7377/03, 13 October 2009).
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. Article 3(1) provides, in general terms, that "suspects and accused persons have the right of access to a lawyer in such time and in such manner so as to allow the persons concerned to exercise their rights of defence practically and effectively" (emphasis added). The Directive then sets out, in article 3(3), minimum requirements, which are particularly relevant at the investigative stages of the criminal justice process:
The right of access to a lawyer shall entail the following:
(a) Member States shall ensure that suspects or accused persons have the right to meet in private and communicate with the lawyer representing them, including prior to questioning by the police or by another law enforcement or judicial authority;
(b) Member States shall ensure that suspects or accused persons have the right for their lawyer to be present and participate effectively when questioned. Such participation shall be in accordance with procedures under national law, provided that such procedures do not prejudice the effective exercise and essence of the right concerned. Where a lawyer participates during questioning, the fact that such participation has taken place shall be noted using the recording procedure in accordance with the law of the Member State concerned;
(c) Member States shall ensure that suspects or accused persons shall have, as a minimum, the right for their lawyer to attend the following investigative or evidence-gathering acts where those acts are provided for under national law and if the suspect or accused person is required or permitted to attend the act concerned:
(i) identity parades;
(iii) reconstruction of the scene of a crime.
A comprehensive description of the role of a lawyer at the early stages of the criminal process is set out in the Early Access Handbook (2014) at Chapter 5, Section B, as follows:
The role of legal aid providers in delivering early access to legal aid is to protect and advance the rights and legitimate interests of their clients. In doing so, the legal aid provider must:
- Loyally respect, and take any necessary actions to further, the interests of their clients, having particular regard to their age, gender, nationality or ethnicity, mental or physical disability, or sexual orientation
- Seek to ensure that their clients know and understand their rights
- Seek to ensure that their clients are treated with dignity, that their human rights are respected, and that they are treated in accordance with the law
- Provide advice and assistance to and, as appropriate, representation for their clients, taking into account their particular needs and any relevant vulnerability
- Seek to ensure that decisions of their clients are respected
- Challenge, in an appropriate way, any unlawful or unfair treatment of their clients
- Seek to ensure that clients continue to receive legal advice, assistance and representation until their case is finally disposed of, including in any appeal.
In several countries, the duties of legal practitioners are the subject of statute. In the Gambia, for instance, the Legal Aid Act, 2008, provides "[a] legal practitioner shall, with respect to any application for legal aid, assigned matter or account, provide all information and give such assistance as the Agency may require, from time to time, including information required pursuant to the provisions of section 37" (Section 39).
A key issue in relation to the role of legal aid providers is that of independence. The Havana Principles provide that governments must ensure that lawyers are able to: carry out their professional functions without intimidation, hindrance, harassment or improper interference; travel and consult with their clients freely; and lawyers must not suffer, or be threatened with, prosecution of other sanctions for any action taken in accordance with recognized professional duties, standards and ethics (1990, Principle 16). Principle 16 is reflected in the UNPG Principle 12. Further, lawyers must not be identified with their clients or their clients' causes as a result of carrying out their functions (1990, Principle 18).
The Havana Principles and the UNPG deal with the obvious, although extremely important, threats to independence posed by 'hostile' actions taken, or threatened, against lawyers. However, independence may be compromised in less direct ways, especially in respect of lawyers providing services that are funded or subsidised by the State. The potential for interference with the independence of lawyers is brought into sharp focus where defence lawyers are directly employed by the State, or State agencies, such as public defenders. However, it is also relevant in relation to the terms on which private lawyers are appointed or contracted to provide legal aid services. Furthermore, independence may be compromised by mechanisms for assuring quality, particularly where such mechanisms are operated or enforced by government agencies or legal aid authorities (see Topic 8).
One of the significant characteristics of legal aid in the context of criminal justice systems is that access to legal aid is often mediated by other agencies, such as the police and other law enforcement agencies, prosecutors, the court, and agencies responsible for detention. This is particularly the case in respect of persons who are in police or other forms of detention. Such persons are normally reliant on officials from such agencies both for (meaningful) information about their right of access to legal aid, and for arranging access promptly and effectively.
The UNPG place responsibility on States to ensure that persons are informed of their right to legal aid and other procedural safeguards prior to any questioning and at the time of deprivation of liberty (2013, Principles 3 and 8). Guideline 2 contains detailed provisions regarding the right to be informed about legal aid, placing responsibility (as appropriate) on police officers, prosecutors, judicial officers and officials in any facility where persons are imprisoned or detained.
Guideline 4 of the UNPG provides that States should take measures to ensure that the police and judicial authorities inform suspects and detainees, in accessible language, of their procedural rights, do not arbitrarily restrict the right of access to legal aid, and facilitate access to legal aid for persons in police stations and other places of detention. Further relevant provisions may be found in Guidelines 5 and 6 and, in relation to victims and witnesses, Guidelines 7 and 8 respectively (see further: Early Access Handbook, 2014, Ch. VI).
In England and Wales, for example, the obligations on the police are set out, in detail, in a statutory code (See: the Police and Criminal Evidence Act, 1984, Code C paras. 3.1, 3.2, 6.4 and 6.6; For other examples see: the UNODC Model Law, 2017, article 30, and related Commentary).