This module is a resource for lecturers
Topic six - Models for delivering legal aid services
Whether access to legal aid in the criminal justice system is sustainable and effective depends not only on governance and funding, but also on the mechanisms by which legal aid services are organized and delivered. States have adopted a variety of approaches, dependent on a range of factors, as the following extract from the UNODC Model Law (2017) Commentary to article 13 briefly describes:
Legal aid systems develop in the context of a State's legal and criminal justice systems, as well as its available resources and needs. Indeed, the adoption of a certain legal aid model is dependent on a number of factors, including the number and availability of lawyers, demand for legal aid services, vulnerability of potential beneficiaries and available financial resources. No matter what system is adopted, however, the institutional arrangements and funding mechanisms should ensure the independence of legal aid providers in the performance of their functions.
The United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems ( UNPG) place responsibility on States to ensure that legal aid is provided, but they are not prescriptive as to how this should be done. Guideline 14 makes specific reference to the potential role for paralegals, and Guideline 16 provides that in making provision for legal aid, States should, where appropriate, engage in partnerships with non-state legal aid service providers, including non-governmental organizations and other service providers.
The primary models for delivering general criminal legal aid services can be categorized as follows.
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. Examples may be found in Israel, Scotland, Ukraine, some African countries such as Liberia, and in most countries in Latin America.
Private lawyer schemes
Legal aid services are provided by lawyers working in private law firms, but there are different approaches to the way in which this is organized:
- Contract schemes - lawyers or law firms are contracted to provide legal aid services for a particular period of time and/or location, and are normally under contract to a legal aid authority or to a public defender service (for example, in England and Wales, and China);
- Ex officio or panel schemes - lawyers are appointed to act in individual cases, normally by a prosecutor or judge who is dealing with a specific suspect or accused person (for example, in Poland);
- Pro bono schemes - in some countries lawyers are under a professional obligation to undertake several unpaid cases per year, and in others, trainee lawyers are required to undertake a number of such cases during their training (for example, in the Philippines).
Legal aid services are provided by paralegals, who may or may not have a legal qualification. They tend to be of two types. In the first, paralegals perform some of the functions of lawyers, although not the full range of services, and either work with or for lawyers, or refer cases to lawyers in respect of work that is only permitted to be carried out by a lawyer. In the second type of paralegal scheme, paralegals perform all the functions that a lawyer can carry out, at least in relation to certain stages of the criminal justice process. Examples of the former are found in Malawi and Sierra Leone, and of the latter in England and Wales (see: Maru & Guari, 2018).
University law clinics: Legal aid services are provided by law students working in university law clinics, appropriately trained and supervised by law professors and/or lawyers. Examples may be found in many countries, including the USA, and several countries in Africa and Latin America.
Specialized legal aid service providers
Legal aid services are provided for people from certain socio-demographic groups, such as children, women, ethnic minorities, prisoners, etc. For example, Legal Aid South Africa works with NGOs to provide legal aid services to women, children and farming communities. In Jordan, the Justice Center for Legal Aid provides legal aid to poor and vulnerable persons through several legal aid clinics.
In practice, in any particular country a number of different models may be used to deliver legal aid in parallel or in co-ordination. For instance, even in countries with a comprehensive legal aid service, specialist organizations run by NGOs or civil society organizations may provide legal aid services for persons with special needs requiring particular expertise and those from 'hard to reach' groups who, for a variety of reasons, do not use mainstream services. Whichever model is under consideration, or applied in practice, independence, and training and quality assurance are key issues, which are dealt with under Topic 7.
In addition to the question of the model of organization of legal aid services, consideration is also needed of the mechanism(s) by which legal aid services are to be delivered. This is particularly relevant at the early stages of the criminal justice process, where those who need legal aid services are often in detention, either at police stations or in pre-trial detention facilities; but it is also relevant at later stages of the criminal justice process, particularly with respect to sentenced prisoners.
Two connected but conceptually distinct issues are relevant. First, legal aid services need to be organized in such a way that legal advice and assistance can be delivered promptly, when and where it is needed. Second, criminal justice agencies, such as the police and detention facilities, must facilitate prompt access by legal aid providers. The first is dealt with here. The second issue is dealt with in Topic 7.
Principle 7 of the UNPG provides that States should ensure that effective legal aid is provided promptly at all stages of the criminal process. The most effective way of ensuring prompt access to legal aid at the early stages of the criminal process, and to those in detention, depends on a variety of factors, including:
- The level and predictability of demand. For example, busy city police stations are likely to generate consistently high demand, whereas less busy police stations may not only generate lower demand, but variable demand.
- The numbers of legal aid providers in a particular location who have sufficient expertise and experience to provide legal assistance of the kind required.
- The willingness of legal aid providers to provide legal assistance to an acceptable standard, as and when it is required ( Early Access Handbook, 2014, p. 69).
Countries have developed a variety of mechanisms for ensuring prompt delivery of legal aid for those in police or other detention: call-in and duty lawyer schemes; embedded schemes; and visiting schemes. These are explained in the Early Access Handbook, 2014, Chapter IV Section C.
Next: Topic 7