On 20 December 2012, the UN General Assembly for the first time adopted Principles and Guidelines on access to legal aid in criminal justice systems.
Legal aid is vital to ensure the right to a fair trial and equality before the law. The Principles and Guidelines are based on international standards and agreed good practice, and provide guidance for all countries in setting up an effective system of legal aid, even where resources are limited.
Access to a lawyer is the single most important precondition for suspects to be able to exercise their rights. Studies confirm that effective legal defence is compromised by detention, and there is an increased risk of a statement or confession being coerced. However, as the majority of detainees come from poor and marginalised backgrounds, more often than not, they are unable to afford a lawyer.
There are various ways of providing legal aid, and not every step in the criminal procedure requires the intervention of a fully trained lawyer, who tend to be city-based and too expensive for most people. Supplementary models have been developed, such as paralegals, who have basic knowledge about the law, legal system and procedures and play an important role in ensuring the rights of defendants and an efficient justice system.
We have a longstanding interest in this issue. Lack of legal aid means that many suspects and defendants languish in detention awaiting trial or sentence because they have no legal adviser or representative to help them apply for bail or prepare their case for trial. This is one of the main causes of overcrowding in a number of countries.
What the Principles and Guidelines say
The Principles and Guidelines on Legal Aid provide that:
- states should ensure a comprehensive legal aid system that is accessible, effective, sustainable and credible
- people charged with a criminal offence punishable by a term of imprisonment or the death penalty are entitled to legal aid at all stages of the criminal justice process
- legal aid is a duty and responsibility of the state and sufficient resources should be allocated for it
- legal aid should be provided promptly and effectively at all stages of the criminal process
- legal aid providers must have unhindered access to detainees.
The Principles understand the concept of legal aid broadly, to include legal advice and assistance as well as representation, and by noting that there are different models for providing legal aid. These include public defenders, private lawyers, pro bono schemes, bar associations, paralegals and others. But whatever model is adopted, states need to guarantee the basic right to legal aid of someone suspected, arrested, accused or charged with a criminal offence.
Victims and witnesses of crime are also entitled to legal aid under the Principles and Guidelines. There are also specific provisions for the right to legal aid for women and children.
What we are doing
We advocate for access to legal representation and adequate legal aid systems.
- We have published a briefing paper setting out the key principles that should underpin the provision of legal aid, who should be involved in developing legal aid services, and what actions they should take.
- We are contributing to a handbook and training curriculum on early access to legal aid, an initiative of the UN Office on Drugs and Crime (UNODC) and the Open Society Justice Initiative (OSJI), which aims to build the capacity of policy-makers and practitioners with practical tools and solutions for the provision of legal aid.
- We promote paralegal schemes as an effective and low cost means of providing legal advice and support for defendants where access to lawyers is limited. In 2012, we published a case study which documents lessons learned from our paralegal programme in Rwanda (2009-2010), and an Index of paralegal services in Africa, with information about paralegal services available.