This module is a resource for lecturers
Topic 3. Key components of the right of access to legal aid
The United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems ( UNPG) provide that States should "guarantee the right to legal aid in their national legal systems at the highest possible level, including, where applicable, in the constitution" (2013, Principle 1). Principle 2 further provides as follows:
States should consider the provision of legal aid their duty and responsibility. To that end, they should consider, where appropriate, enacting specific legislation and regulations and ensure that a comprehensive legal aid system is in place that is accessible, effective, sustainable and credible. States should allocate the necessary human and financial resources to the legal aid system.
The key elements of a legislative and/or regulatory regime governing access to legal aid can be summarized as follows (see further: Early Access Handbook, 2014, ch. III):
- Anyone who is detained, arrested, suspected of, or charged with a criminal offence punishable by a term of imprisonment or the death penalty is entitled to legal aid at all stages of the criminal justice process; and regardless of the person's means, it should be provided if the interests of justice require, for example because of the urgency or complexity of the case (UNPG, 2013, Principle 3); and, where appropriate, to victims of crime (UNPG, 2013, Principle 4), and witnesses (UNPG, 2013, Principle 5).
- Provisions setting out eligibility for and access to legal aid at different stages of the criminal justice process (UNPG, 2013, Guideline 1; Guideline 4; Guideline 5 and Guideline 6). See also: the Nelson Mandela Rules, 2015, Rule 119; Rule 120 and Rule 61.
- Provisions requiring information about the right of access to legal aid to be provided to those who are or who may be eligible (UNPG, 2013, Principle 8 and Guideline 2; Nelson Mandela Rules, 2015, Rule 119; Rule 61).
- Provisions regarding other procedural rights linked to the right to legal aid (UNPG, 2013, Guideline 3).
- Provisions regarding the waiver of the right to legal aid (UNPG, 2013, Guideline 3 para 43(b) and (i)).
- Provisions to ensure that requests for legal aid are promptly given effect (UNPG, 2013, Principle 7 and Guideline 3, para 43(b), (d) and (h)).
- Provisions regarding non-discrimination (UNPG, 2013, Principle 6); that legal aid be provided in the best interests of a child (UNPG, 2013, Principle 11 and Guideline 11); and, as appropriate, provisions to ensure equity in access to legal aid (UNPG, 2013, Principle 10), including special provisions for women (UNPG, 2013, Guideline 9).
- Provisions that ensure effective remedies and safeguards (UNPG, 2013, Principle 9).
States take different approaches to implementing the right of access to legal aid. Extensive examples of the differing approaches to regulating the right of access to legal aid can be found in the Commentaries to the UNODC Model Law, and the Model Law (2017) itself includes an approach to these matters.
Some States set out the key terms of the right to legal aid in their constitution or similar. For example, the Constitution of South Africa (1996) provides as follows:
Everyone who is detained, including every sentenced prisoner, has the right - …
(b) to choose, and to consult with, a legal practitioner, and to be informed of this right promptly;
(c) to have a legal practitioner assigned to the detained person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly (1996, section 35 para. 2).
In Canada, the Canadian Charter of Rights and Freedoms sets out the right to legal assistance for persons arrested or detained in broad terms, but this has required interpretation in a series of Supreme Court decisions to determine the precise meaning of the Charter right. Another approach is for the right to legal aid to be set out in legislation, and for detailed provisions to be set out in regulations; which is the method adopted in England and Wales (see: Legal Aid, Sentencing and Punishment of Offenders Act, 2012 and associated regulations).
The Fiji Constitution of 2013 recognizes legal aid as a right and refers to the authority responsible for the establishment of a legal aid system. Article 13 provides that:
every person who is arrested or detained has the right ... to communicate with a legal practitioner of his or her choice in private in the place where he or she is detained, to be informed of that right promptly and, if he or she does not have sufficient means to engage a legal practitioner and the interests of justice so require, to be given the services of a legal practitioner under a scheme for legal aid by the Legal Aid Commission.
In Europe, the right to a lawyer, and to legal aid, is set out in broad terms in the European Convention on Human Rights (article 6), and there is extensive case-law of the European Court of Human Rights fleshing out the implications of the Convention right. The European Union has adopted a novel approach to establishing regional standards regarding access to legal aid, and associated rights such as the right to information and the right of access to a lawyer. The objective of this approach is to establish minimum standards across the Member States of the European Union to facilitate the mutual recognition and law enforcement provisions of the Union, and to assure citizens that their procedural rights will be respected. Thus, the European Union has adopted a series of Directives concerning the procedural rights of suspected and accused persons, and these must be given effect in each of the Member States, with disputes going to the Court of Justice of the European Union.
An important issue, since it cannot be assumed that legal norms are necessarily given effect, concerns the variables that affect the implementation of the right of access to legal aid in practice. The Early Access Handbook (2014, p. 44) identifies three significant variables:
- 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.