• E4J University Module Series: Crime Prevention and Criminal Justice

• Module 3: Access to Legal Aid in Criminal Proceedings

• Introduction and learning outcomes

• Key issues

• • Key terms
  • Topic 1.  Introduction to the international standards and norms
  • Topic 2.  Identifying the need for legal aid, and the benefits and costs of legal aid
  • Topic 3.  Key components of the right of access to legal aid
  • Topic 4.  Access to legal aid for those with specific needs
  • Topic 5.  Models for governing, administering and funding legal aid
  • Topic 6.  Models for delivering legal aid services
  • Topic 7.  Roles and responsibilities of legal aid providers, and other criminal justice officials
  • Topic 8.  Quality assurance and legal aid services
  • Summary
  • References

• Exercises

• Case studies

• Possible class structure

• Core reading

• Advanced reading

• Student assessment

• Additional teaching tools

• Guidelines to develop a stand-alone course

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• First published in January 2019
  

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  This module is a resource for lecturers  

 

Key terms

 

Arrested, detained, suspected and charged

The terms 'arrest' and 'detained' are defined in the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (General Assembly Resolution 43/173, Annex).

'Arrest' means the act of apprehending a person for the alleged commission of an offence or by the action of an authority. Thus, a substantive, rather than a formal, approach to the meaning of arrest should be adopted.

'Detained' person means any person deprived of personal liberty except as a result of conviction for an offence.

'Detention' means the condition of detained persons as defined above (General Assembly Resolution 43/173, Annex).

The term 'suspected' is not explicitly defined, but the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems  ( UNPG) note that "the right to legal aid of suspects arises before questioning, when they become aware that they are the subject of investigation, and when they are under threat of abuse and intimidation, e.g. in custodial settings".

The term 'charged' is also not explicitly defined in the UNPG. In applying the term to the range of States that are signatories to the European Convention for the Protection of Human Rights and Fundamental Freedoms, the European Court of Human Rights has defined 'charge' as follows:

'Charge'… may be defined as 'the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence', a definition that also corresponds to the test whether 'the situation of the [suspect] has been substantially affected'.

Criminal justice system and criminal offence

The UNPG are concerned with access to legal aid in criminal justice systems and adopt the definition of 'justice process' found in the Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime (Economic and Social Council resolution 2005/20, annex para. 9c):

'Justice process' encompasses detection of the crime, making of the complaint, investigation, prosecution and trial and post-trial procedures, regardless of whether the case is handled in a national, international or regional criminal justice system for adults or juveniles, or in a customary or informal system of justice.

Early access to legal aid

As defined in the Early Access Handbook (2014), early access to legal aid means access to legal aid from the time that a person is suspected of, arrested or detained in respect of, or charged with a criminal offence (whichever is the earliest) and throughout the period up to and including the first appearance before a judge for the purpose of determining whether the person is to be detained or released pending trial.

Legal aid

The term 'legal aid' is defined in the UNPG (2013, Annex, A. introduction para 8 and Principle 3) 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.

Legal aid provider

The lawyer or paralegal (or other suitably trained person) who provides legal aid, as defined in the UNPG.

Legal aid service provider

The organization that provides legal aid services, or on behalf of which a legal aid provider works. The UNPG state that lawyers are the 'first' providers of legal aid, but that States may involve a wide range of stakeholders as legal aid service providers such as non-governmental organizations (NGOs), community-based organizations, charitable organizations, professional bodies or associations, and educational institutions.

 

Next: Topic 1

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