While the focus of last week’s conference on Alternatives to Imprisonment was on sentencing practice, the third day included a preview of the UNODC’s new handbook: Early access to legal aid in criminal investigations and proceedings: a handbook and training curriculum for policy makers and practitioners.
Most of the countries at the conference – eight in total – have problems with high levels of pre-trial detention (with the exception of Malawi). The proportion of pre-trial detainees in many African countries can sometimes be up to 80-90% of national prison populations.
The importance of legal aid in the early stages of criminal investigation cannot be overestimated. The point when someone is arrested or detained in police custody is the time when they are most at risk of being intimidated, abused or tortured into confessions which are more likely to reflect their fear than reality. Legal aid is essential for a fair trial and to make the rule of law a reality. It cannot always be provided through individual legal representation as there are insufficient numbers of lawyers in many countries to make this possible.
Ever since the Lilongwe Declaration (Malawi 2004), there has been a growing recognition of the importance of legal aid in ensuring access to justice in criminal cases. Following the Declaration, the UNODC set up an expert group to develop a new standard to strengthen access to legal aid – which eight years later in 2012, resulted in the UN General Assembly adopting a new standard: the Principles and Guidelines on access to legal aid in criminal justice systems.
So for the first time, there is now an international standard that places the responsibility for provision of legal aid on the state. Limited resources do not remove this responsibility as the Principles and Guidelines set out a range of measures by which an effective system of legal aid can be established even when there are inadequate numbers of lawyers to provide representation. States are given clear guidance on how to fulfill their obligations to provide legal aid in criminal cases.
The new handbook from UNODC will give very clear and specific guidance to states about how to implement the Principles and Guidelines for people in police detention to ensure their rights from the point of arrest or detention are protected.
Its sets out the international standards for early access to legal aid; the benefits and challenges of this and goes on to show how legal aid can be provided through different mechanisms and models, depending on the country situation and resources. The role of lawyers, paralegals, police, prosecutors and judges are described in details to show how each has an important part to play in ensuring that suspects’ rights are respected and that cases are not prepared on the basis of false confessions.
PRI’s briefing on the Principles and Guidelines is available on our website and gives a summary of the provisions which are comprehensive, referring to legal aid at all stages of criminal proceedings, and extending to witnesses and victims too.