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Topic one - Introduction to the international standards and norms concerning access to legal aid in criminal justice systems


In the determination of any criminal charge, every person is entitled "to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it" (International Covenant on Civil and Political Rights, GA Resolution 2200A (XXI) article 14(3)d). This formulation of the right of access to legal aid in criminal proceedings, or something very similar, is found in the constitutions of several countries, and incorporated into several regional human rights instruments. For example, the right to legal aid is enshrined in article 6(3)(c) of the European Convention on Human Rights ; article 45(h)(i) of the Charter of the Organisation of American States . However, while a right of access to a lawyer that is funded, where necessary, by the State is reflected in the laws of many (although not all) countries, the conditions governing entitlement to legal aid vary considerably and often confine eligibility to a small proportion of those who are the subject of criminal proceedings. Furthermore, the translation of legal rights into practical, and meaningful, access to legal aid is often deficient. This is compounded, very often, by a lack of adequate statistical and other information about the extent to which legal aid is made available.

The United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems  ( UNPG) recognize that legal aid "is an essential element of a fair, humane and efficient criminal justice system that is based on the rule of law" (2013, Annex, A. introduction para. 1). Drawing on international standards and recognized good practice, the UNPG aim to provide guidance "on the fundamental principles on which a legal aid system in criminal justice should be based and to outline the specific elements required for an effective and sustainable national legal aid system" (2013, Annex, A. introduction, para. 6). In other words, they seek to provide a blueprint for an effective legal aid system that operates at all stages of the criminal process, irrespective of the procedural tradition and socio-economic circumstances in any particular jurisdiction.

The term 'legal aid', is defined in the UNPG 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. (2013, Annex, A. introduction, para. 8)

The UNPG are primarily concerned with the right to legal aid, as distinct from the right to legal assistance, and are intended to build on and give effect to the international norm that a person is entitled to defend himself or herself through legal assistance. However, the definition of 'legal aid' adopted in the UNPG includes both the service provided - legal advice, assistance and representation - and the provision of that service at no cost to persons entitled to it.

The national criminal justice systems of most countries are informed by one or other (and sometimes both) of the two major procedural traditions: the inquisitorial tradition and the adversarial tradition. Although, in practice, there is considerable variation in the criminal justice processes of countries that are informed by a particular procedural tradition, broad themes may be identified with each (see box below). Therefore, in considering access to legal aid and, in particular, the practical implications of a right of access to legal aid, account must be taken of the criminal procedural context in which it will operate. For examples of regional instruments that apply in jurisdictions with different procedural traditions, see the Principles and Guidelines on Public Defense in the Americas and the EU Directives on the Right of Access to a Lawyer (2013/48/EU) and on the right to legal aid (2016/1919/EU) .


Adversarialism and Inquisitorialism

The adversarial approach embodies the notion that criminal procedure is informed and characterised by a contest between the individual and the State. If a citizen is accused by the State of having committed a criminal offence then it is for the State to prove it, without assistance from the accused, before an independent judicial tribunal. The tribunal has no investigative role, and must make its decision as to guilt or innocence on the basis, and only taking account, of evidence produced by the prosecution and, if they choose to adduce evidence, the accused. Only when guilt has been established will information relevant to sentence be considered. The role of the accused in this process is only to look out for themselves. Adversarialism reflects an individualistic philosophy, embodying deep scepticism about the ability (or, indeed, the legitimacy) of the State, and State functionaries, to act in a dispassionate and objective manner.

Inquisitorialism, on the other hand, reflects a more collectivist relationship between the citizen and the State whereby the State is not only to be trusted to treat a subject fairly, but has an obligation both to preserving societal integrity and assisting a transgressor to re-integrate. Thus, a person suspected or accused of a crime is the subject of an investigation conducted by a judicial officer as part of a process directed at determining 'the truth', and has a broad obligation to assist in that process. In judging guilt or innocence, the court will see, and can take account of, all relevant material collected during the investigation, and the principal function of the trial is to ensure that the material to be considered was lawfully and properly obtained. This being the case, there is no clear distinction between the trial and sentencing phases, and information relevant only to sentence is nevertheless available to the tribunal even before guilt has been established.

Cape, Ed (forthcoming). Defense Rights, Duties, Norms and Practices in Common Law and Civil Law Jurisdictions. In D. Brown, J. Turner and B. Weißer, eds. Oxford Handbook of Criminal Process. Oxford University Press.
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