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New Handbook on Early Access to Legal Aid in Criminal Justice Processes
Last week, UNODC and UNDP released “Early access to legal aid in criminal justice processes: a handbook for policymakers and practitioners.” The guidebook discusses the benefits and challenges to providing early access to legal aid and the role and responsibilities of legal aid providers, police, judges, and prosecutors. The annexes also provide curriculums for legal aid providers and police officers. Below are excerpts on challenges to establishing a legal aid framework, different models of legal aid provision, and a checklist on developing a national strategy for early access to legal aid.
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Challenges to establishing an appropriate legal framework
“Legal aid is unnecessary at the pretrial stage”
One barrier to acceptance of the need for legislative recognition of the right to early access to legal aid is the belief that the focus for the determination of guilt or innocence is the trial and that, while legal assistance may be necessary to guarantee a fair trial at that stage, it is not necessary at the stage when a crime is being investigated or when a decision about pretrial detention is made.
This is often associated with a belief, particularly in countries with an inquisitorial tradition, that, to the extent that the police carry out investigations, they do so neutrally on behalf of the prosecutor or the court. A common belief is that interrogation of suspects by the police is designed to uncover “the truth” and that the involvement of a legal aid provider in this process will interfere with truth discovery. This approach is not confined to countries with an inquisitorial tradition.
To counter this belief, one approach is to demonstrate the significant benefits that early access can have for suspects and accused persons, their families and the wider community.
“Legal aid will interfere with the investigation of crime”
A particular concern in many countries, especially in the context of limited investigative resources, is that the police need confessions from suspects in order to secure convictions and that, if suspects have legal advice and assistance at the investigative stage, they will be less likely to confess. It is a significant challenge that the police often do not have the necessary skills, facilities or resources to be able to find and secure other forms of evidence. For the right to early access to legal aid to be implemented and effective, the police need training to equip them with evidence-gathering skills, and the facilities and resources to be able to use those skills.
“Providing legal aid is expensive”
Establishing early access to legal aid undoubtedly does have cost implications for public expenditure, although, such spending can be offset by savings in other areas of public expenditure. Furthermore, to the extent that early access contributes to greater confidence in the justice system and improved integration, it can lead to wider cost savings
“The public is not in favour of legal aid”
Political attitudes towards establishing a scheme for providing legal aid are often informed by public attitudes. Procedural rights for suspects and accused persons generally, and for early access schemes in particular, are often not popular with individuals and communities. This may be particularly so when ensuring that those rights are respected involves expenditure of scarce public resources. Negative attitudes may be reinforced by a fear of crime and the belief that providing suspects and accused persons with legal assistance enables those guilty of committing criminal offences to avoid prosecution and punishment.
Attitudes appear to be significantly affected both by representations of crime in the media and by political discourse, and often there is a cycle of mutual reinforcement. For these reasons, the establishment of effective and sustainable schemes for early access to legal aid needs to rely on careful public engagement, so that local communities have a sense of ownership and an understanding of the ways in which they may benefit from such schemes. This includes not only benefits to individuals as potential suspects or victims, but also wider economic and social benefits such as the contribution that early access schemes can make to the transparency and accountability of criminal justice processes and institutions, and the reinforcement of the rule of law.
“Town hall” or “courtyard” meetings are used by NGOs and other organizations in a number of countries to inform local communities of their rights and to reach people who otherwise would not use their services. This approach can also be useful as a way of giving legal aid rights legitimacy with the public.
Establishing a legal framework
The first challenge to effective implementation of a legal framework for early access is the establishment and funding of an institution that has responsibility for creating, managing and monitoring the mechanisms by which early access to legal aid is delivered. A key aspect of a credible and sustainable early access scheme is the quality of the service provided.
Ensuring that sufficient legal aid providers are available
A second challenge to effective implementation of such a framework is to ensure that there are sufficient legal aid providers able and willing to deliver early access. In many countries, an overwhelming number of lawyers are male, and thus may not be able to adequately cater for female suspects and accused persons. Additionally, in cases in which language can be a barrier and interpretation is not easily available, access to lawyers who are able to communicate effectively with their clients may pose a further challenge. Even in countries that have a high ratio of lawyers to population, the majority of lawyers are often unable or unwilling to provide legal aid to criminal suspects or accused persons.
Furthermore, in some countries that do have early access schemes, there is a widespread reluctance by lawyers in private practice to provide effective assistance to suspects in police stations or other forms of detention, as well as a need for training to improve knowledge and skills and, sometimes, a lack of cooperation by bar associations in operating early access schemes. In some countries lawyers themselves are at risk if they actively defend the interests of their clients. This may be particularly true when handling cases that are politically sensitive, for example, human rights cases, terrorism cases or ones involving national security.
Changing attitudes of criminal justice actors
A third challenge to making the right to early access to legal aid effective concerns the fact that the police and other law enforcement agents must play a key role in informing suspects of their rights and in facilitating contact with legal aid providers. In many countries, however, there is a range of cultural and organizational factors that militate against the police performing this role, including arrest or prosecution targets and other institutional requirements regarding “successful” processing of prisoners and prosecution, often combined with a fear that the involvement of a defence lawyer will interfere with the ability to satisfy those requirements. Such factors require changes to the way in which the police are managed in order to remove disincentives to facilitating early access and to positively encourage respect for the rights of the accused. Police training is also an important way of helping police officers to understand the importance of early access to legal aid and their role in facilitating it.
Improving public knowledge and understanding
A fourth challenge to effective implementation of a legal framework for early access to legal aid is the lack of public knowledge and understanding of the right to, and benefits of, such access. Suspects and accused persons may be unaware of their right to early access. In addition, they may not understand any information given to them about their right to legal aid. Information provided orally about rights may be difficult to comprehend, and written information may not be effective in conveying information about rights if it is written in technical language or if the suspect or accused person is illiterate or poorly educated.
Public attitudes, sometimes reinforced by those of the police and judiciary, can also discourage suspects and accused persons from exercising their right of early access to legal aid even if they are aware of those rights. There is a widespread belief, prevalent in many countries, that asking for a lawyer at the investigative stage of the criminal justice process is, or may be interpreted as, an indication of guilt, or that asking for a lawyer may “escalate” the situation and make things worse for the suspect or accused person.
A novel way of providing information about rights, devised by the German Foreign Office, is the use of specially designed playing cards, on which are printed the rights of suspects, accused persons and prisoners.
Models of legal aid provision
Public defender schemes
In public defender schemes, legal advice and assistance are 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.
Public defender schemes can have a number of advantages over other forms of providing legal aid. They may be more cost-effective than private practice models, although experience varies in different countries depending on a range of factors, including the efficiency of private provision of legal aid. A public defender scheme may have the organizational ability and resources to provide such aid at the early stages of the criminal justice process even when demand is unpredictable and requires a speedy response.
A public defender service can often be the best model for ensuring the development of specialized services for children and other vulnerable suspects and accused persons, through the provision of specialized training and skill development as a standard requirement of employment and/or a standard form of pre-service training for lawyers recruited into the service. Furthermore, as a specialist organization, a public defender service has the potential to develop a “zealous defence” culture, which in some countries is not found among private lawyers providing legal aid services.
Lawyers participating in public defender schemes are also likely to be better placed than lawyers working in private practice to undertake activities that are not directly related to individual suspects and accused persons, such as working with the police to improve take-up of legal assistance and providing community education. In several countries there is evidence that public defender services have made a significant contribution to the provision of legal aid in criminal proceedings.
However, experience in a number of countries shows that, in order for public defender schemes to provide effective criminal defence services, close attention must be paid to resources and independence. Public defender schemes in several countries have suffered from a lack of resources, resulting in high caseload levels and poor quality. One study concluded that “[t]he most significant problem plaguing countries that rely on the public defender model is that caseloads are often so large that the quality of representation suffers
Private lawyer schemes
In many countries, legal aid is provided by lawyers working in private law firms. There are different approaches to private lawyer schemes, but the main ones are contract schemes, ex officio or panel appointment schemes, and pro bono schemes. In contract schemes, lawyers or law firms are contracted to provide legal aid in individual cases and the contracts are normally with a legal aid body or authority, although sometimes with a public defender service.
In 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. Fee levels may be set locally, or be subject to national regulation or agreement. Such schemes enable lawyers to be appointed as and when they are needed, but they have particular disadvantages in terms of delivering early access to legal aid.
Pro bono schemes
There are a number of different types of pro bono schemes. In some countries, lawyers are under a professional obligation to undertake a number of unpaid cases every year. In others, trainee lawyers are required to undertake a number of such cases during their training. Pro bono schemes can make a significant contribution to the provision of legal services to those who cannot afford to pay for a lawyer out of their own resources. However, they are not a satisfactory method of delivering early access to legal aid. Lawyers who are required to advise and assist in cases without payment are often reluctant to do so.
Paralegal schemes
The potential for paralegals to provide legal aid services is increasingly recognized in many regions of the world, and there is a wide range of paralegal schemes operating in countries with varying levels of development. There is no settled definition of the term “paralegal”, but essentially a paralegal is a person who is not a fully qualified lawyer who provides some or all of the services that are provided by fully qualified lawyers. The term “community-based paralegal” is used to describe paralegals who are members of the community that they serve or work for organizations that are based in that community, and who employ a range of skills and methods to reflect the concerns of, and help organize and empower, the community.
Legal aid centres and specialist schemes
In many countries, legal aid centres and specialist schemes, generally run by NGOs or civil society organizations, deliver legal aid for suspects, accused persons and others. Some, especially in countries that do not have a comprehensive legal aid system, act as legal aid providers for all people who need legal aid services in a particular locality, and some such organizations have developed an extensive network for providing such services.
Some legal aid centres and specialist schemes focus on delivering legal aid to particular sections of the community, especially persons who have special needs, suffer particular disadvantage or who are “hard to reach”. In doing so, they may deliver services not only to suspects or accused persons, but also to victims, and they often aim to ensure that criminal cases are dealt with outside of the formal criminal justice system.
University law clinics
The United Nations Principles and Guidelines provide that States should, where appropriate, encourage and support the establishment of legal aid clinics in universities and facilitate the involvement of students in delivering legal aid services by developing student practice rules and facilities for legal internships in courts.
Developing a national strategy for early access to legal aid
This is primarily the responsibility of States, but it will be more effective if the development of a national strategy is carried out in consultation with key stakeholders such as bar associations, the police, prosecutors, the judiciary, NGOs and civil society organizations.
National strategy checklist
• Identify the key requirements of the early access provisions of the United Nations Principles and Guidelines and the strategic objectives required for meeting those requirements.
• Assess existing laws and regulations relevant to early access to legal aid (preferably using a human rights framework which takes into account such factors as gender, race, age and disability), identify what legal changes are necessary to facilitate early access and develop a plan for introducing and implementing such laws and regulations.
• 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.
• Conduct a survey of existing provision of legal aid, compare it with the pattern of need and identify and implement appropriate methods of delivery and appropriate models of provision to meet the pattern of identified need, including the needs of vulnerable groups and those with special needs.
• Consider the current arrangements for funding and administering legal aid and, where necessary, identify, plan and implement appropriate structures and mechanisms for sustain- able funding and administration of legal aid.
• Establish what the current arrangements for training and assuring the quality of legal aid providers are, and for training other criminal justice officials in relation to early access, and devise and implement appropriate mechanisms for the provision of ongoing and up-to-date training and for ensuring the quality of legal aid providers.
• Develop and implement appropriate mechanisms for monitoring and evaluating early access to legal aid and implementing the lessons learned from such monitoring and evaluation.
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