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Topic five - Models for governing, administering and funding legal aid

 

Guaranteeing access to legal aid requires institutional structures and mechanisms, and adequate resources, to ensure that the right to legal aid is both effective and sustainable. Conditions vary widely in countries around the world in terms of resources, the functioning of criminal justice systems, whether there are national or federal systems, criminal procedure traditions, the professional expertise of key criminal justice personnel, and the numbers and location of legal aid providers willing and able to provide legal aid services. These variables are relevant when considering how legal aid is to be managed, administered and funded.

The United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems ( UNPG) place responsibility on States to ensure that a comprehensive legal aid system is in place that is accessible, effective, sustainable and credible (2013, Principle 2). Guideline 11, para. 59, indicates that States should consider establishing a national legal aid body or authority to fulfil that obligation.

To ensure the effective implementation of nationwide legal aid schemes, States should consider establishing a legal aid body or authority to provide, administer, coordinate and monitor legal aid services. Such a body should:

(a) Be free from undue political or judicial interference, be independent of the Government in decision making related to legal aid and not be subject to the direction, control or financial intimidation of any person or authority in the performance of its functions, regardless of its administrative structure;

(b) Have the necessary powers to provide legal aid, including but not limited to the appointment of personnel; the designation of legal aid services to individuals; the setting of criteria and accreditation of legal aid providers, including training requirements; the oversight of legal aid providers and the establishment of independent bodies to handle complaints against them; the assessment of legal aid needs nationwide; and the power to develop its own budget;

(c) Develop, in consultation with key justice sector stakeholders and civil society organizations, a long-term strategy guiding the evolution and sustainability of legal aid;

(d) Report periodically to the responsible authority.

In practice, States that have a legal aid system take a variety of approaches to the governance and administration of legal aid. Some have no national legal aid authority, often leaving courts to administer legal aid; others have a legal aid authority that is not independent of government; some have established independent or semi-independent legal aid authorities; and some States that provide legal aid through public defenders devolve responsibility for the administration of legal aid to a public defender's office which is often, although not always, independent of the government.

Sierra Leone is an example of a country with a legal aid authority that is independent of government. The Legal Aid Board in Sierra Leone was established under the authority of the Legal Aid Act, 2012. Under the Act, Board members include a senior judge, a senior representative of the Law Officers' Department, a representative of the ministry responsible for social welfare and representatives from the bar association and a range of other organizations. Part III of the Act sets out the functions of the Board and provides that it "shall not be subject to the direction or control of any person in the performance of its functions" (sect. 11). The Act also provides for a secretariat to service the Board and makes specific provision for the activities of the Board to be financed by monies appropriated by Parliament, monies generated by the Board during its activities, and grants and other forms of contributions made to the Board.

New Zealand is an example of a country that has established a legal aid authority that is not independent of government. The New Zealand Legal Services Act 2011 vests responsibility in the Secretary for Justice for establishing, maintaining and purchasing legal aid services. Responsibility for determining applications for legal aid and similar functions are vested in a Legal Services Commissioner. The Commissioner must be an employee of the Ministry of Justice. While the Act provides that the Commissioner must act independently in relation to decisions concerning individual cases (such as eligibility for legal aid and when assigning a legal aid lawyer to an individual), in all other respects the Commissioner is required to act under the direction of the Minister of Justice (sect. 70(3)).

Chile, Brazil and Argentina are examples of countries that have adopted the public defender model. In Chile, the public defender - the Defensoría Penal Pública - is a national institution established by statute, with responsibility for delivering legal aid services in criminal cases throughout the country. The national director is appointed by the President of the Republic, and is assisted by a number of regional directors who, in turn, are responsible for public defenders at the local level. The public defender scheme is supplemented by private, court-appointed, defence lawyers, known as licitados. In countries such as Brazil and Argentina, the federal constitutions provide for the institution of the public defender, but responsibility for establishing and running public defender schemes rests at state or provincial level.

The UNODC Model Law, Chapter 4 (2017), incorporates the independent model of a legal aid authority, but states that "when establishing a legal aid system, careful consideration must be given to what is most appropriate and effective in the particular context of a country's criminal justice system". The Commentary to Chapter 4 provides examples of the various models in a range of States (see Global Study on Legal Aid, 2016, Part II D).

A key factor in the development of a sustainable and effective legal aid system is the provision of adequate funding. Principle 2 of the UNPG provides at para. 15 that States "should allocate the necessary human and financial resources to the legal aid system". This is supplemented by Guideline 12, which provides:

Recognizing that the benefits of legal aid services include financial benefits and costs savings throughout the criminal justice process, States should, where appropriate, make adequate and specific budget provisions for legal aid services that are commensurate with their needs including by providing dedicated and sustainable funding mechanisms for the national legal aid system.

Guideline 12 goes on to suggest that States could establish a legal aid fund to finance legal aid schemes and to support provision of legal aid by a range of bodies such as bar associations, public defender schemes, university law clinics, etc.; and to identify fiscal mechanisms for ensuring that sufficient funds are made available for legal aid, taking into account legal aid needs, the particular issues concerning the provision of legal aid in rural, and economically and socially disadvantaged areas, and to ensure "fair and proportional distribution of funds between prosecution and legal aid agencies" (para. 61).

States, therefore, have a large degree of discretion as to the level and distribution of funding available for legal aid, and evidence suggests that the funds dedicated to legal aid are insufficient in many, if not most, countries. Per capita spending on criminal legal aid varies widely between different countries, but there are difficulties in making comparisons across jurisdictions because of significant variables, such as respective crime rates (or, rather, respective rates of crimes being processed through the criminal justice system), and the impact of different criminal procedural traditions (see for example: Bowles and Perry, 2009).

The UNODC Model Law (2017) deals with funding of legal aid in articles 40-42. The following is an example of how legal aid funding is regulated in India (see commentaries to articles 40-42).

Indian Legal Services Authorities Act, 1987: Section 15. National Legal Aid Fund

(1) The Central Authority shall establish a fund to be called the National Legal Aid Fund and shall be credited thereto:

(a) All sums or money given as grants by the Central Government under Section 14;

(b) Any grants or donations that may be made to the Central Authority by any other person for the purposes of this Act;

(c) Any amount received by the Central Authority under the orders of any court or from any other source.

(2) The National Legal Aid Fund shall be applied for meeting:

(a) The cost of legal services provided under this Act including grants made to State Authorities;

(b) The cost of Legal services provided by the Supreme Court Legal Services Committee;

(c) Any other expenses which are required to be met by the Central Authority.

The level of spending on criminal legal aid will depend, in part, on the criteria for eligibility for legal aid (in the sense of eligibility for free or subsidized legal services, as opposed to eligibility for legal assistance) of individuals in the criminal justice process. Eligibility for legal aid is frequently determined by reference to two tests: a merits test and a means test.

The notion of a merits test is based on the principle that a person facing a criminal charge should be provided with legal aid if it is in the interests of justice that they be legally represented, as found in the ICCPR (GA Resolution 2200A (XXI)) and all regional normative instruments. The definition of 'legal aid' for the purposes of the UNPG was set out under Topic 1. The effect of Principle 3, para. 20, is that the interests of justice test is deemed to be satisfied in respect of all stages of the criminal process for a person who is detained, arrested, suspected of, or charged with a criminal offence punishable by a term of imprisonment or the death penalty. In other cases, the interests of justice test may be satisfied, in particular, in cases of urgency (such as where a person is detained for questioning), or complexity, or because of the severity of the potential penalty (para. 21).

The UNODC Model Law (2017), following the UNPG (2013), deals with the merits test in the following way (for the approach taken in a range of countries see: the commentary to article 4).

Article 4. Scope of application

4.1. Subject to the procedures established under the present Law, an individual is entitled to legal aid, regardless of his or her financial means, when he or she:

4.1.1. Is arrested, detained, suspected or accused of, charged with or sentenced for a crime punishable by a term of imprisonment [or the death penalty];

4.1.2. Is arrested, detained, suspected or accused of, charged with or sentenced for a non-imprisonable crime, when the interests of justice so require, owing to the urgency of the circumstances, the complexity of the case or the severity of the potential penalty;

4.1.3. Is arrested, detained, suspected or accused of, charged with or sentenced for a non-imprisonable crime, and is a child, a person with disabilities, a person with mental illnesses, a stateless person, an asylum seeker, a refugee, an internally displaced person or a victim of human trafficking.

4.2. An individual who is arrested, detained, suspected or accused of, charged with or sentenced for a non-imprisonable crime, but does not fall within the scope of eligibility under article 4.1, is entitled to legal aid, subject to the means test provided under article 33 of this Law.

Regarding a means test, the UNPG provide that in cases covered by paras. 20 and 21, legal aid should be granted without reference to a person's financial means. In other cases, financial means can be considered, and Guideline 1 sets out a number of factors that should be taken into account in applying a means test. Note that there is some ambiguity in relation to persons who urgently require legal assistance: whilst Principle 3 suggests that legal aid should be provided regardless of a person's means if, in cases of urgency, the interests of justice require legal aid to be granted, Guideline 1, para. 41(c), states that "persons urgently requiring legal aid… should be provided [with] preliminary legal aid while their eligibility is being determined".

States take different approaches to regulating the means test. In some, the financial eligibility criteria are very broad, leaving decision makers with a large degree of discretion. In others, they are very detailed and specific, often regulated through secondary legislation. For the approach taken in the UNODC Model Law (2017), see article 33, and for comparative models see the Commentary to article 33.

 
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