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The role of quality legal aid services in fair criminal justice

admin - November 15, 2018 - legal aid, access to a lawyer, Access to Justice, plea bargaining, Pre-trial detention

 

We all know that you cannot have a fair trial without access to effective legal assistance; that shouldn’t depend on whether you can afford to pay for a lawyer. Poverty is one of the key factors in whether you receive a fair trial, and effective legal aid systems (where the state, in one way or another, pays for your lawyer if you can’t afford to) is crucial to addressing this disadvantage.

Most States have laws guaranteeing the right to free legal representation for poor and vulnerable persons accused of crimes, as required by the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems. Nonetheless, a lack of access to a lawyer (for indigent defendants) or reliance on poor-quality and/or under-funded legal services remains a sad reality in many parts of the world. As a result, millions of marginalized people around the world are being detained illegally, tortured, and convicted wrongfully. The issue doesn’t concern only the defendants but the functioning of our criminal justice systems as a whole.

This week, Fair Trials has been participating in the largest gathering of legal aid providers, civil society members, and other experts to help address these challenges. Over 200 experts gathered together in Georgia on 13–15 November for the International Conference on Access to Legal Aid in Criminal Justice Systems. The conference addressed global challenges in ensuring access to quality legal aid services for the poor and vulnerable, particularly in criminal justice systems and highlighted global efforts to implement the UN Principles and Guidelines.

Fair Trials’ Chief Executive, Jago Russell, moderated a discussion on legal aid in plea bargaining, with experts from the US, Georgia and India. The conversation covered the growing role plea bargaining, in its various forms, now plays in criminal justice systems around the world, the impact this can have on the fairness of justice systems, and what this means for the delivery of effective legal aid.

Despite travelling overnight from the West Coast of the US, Rick Jones from the Neighbourhood Defender Service of Harlem gave an incisive account of how many of the failures of the criminal justice systems in the US can be traced back to the door of plea bargaining – with the efficiency benefits of plea bargaining feeding over-criminalisation. In Georgia, plea bargaining has been introduced fairly recently, in 2004. Kakha Tsikarishvili from the EU-UN Joint Programme told how since then, the practice has also come to play a dominant and controversial role in the criminal justice system. Madhurima Dhanuka from the Commonwealth Human Rights Initiative gave an insight on the practice in India: there plea bargaining, at least on paper, was felt to offer some promise in dealing with massive trial delays and over-use of pre-trial detention. In practice, these benefits are not yet apparent and there is a clear risk of corruption and coercion

Jago also spoke on a panel on what quality legal aid means. At Fair Trials we believe quality legal aid services need to be defined by reference to universally recognised fair trial principles. With these as a starting point, we can develop a clear set of performance standards that allow us to measure whether the legal aid services a defendant receives are sufficient to ensure that those rights are respected. By way of example excessive and unjustified pre-trial detention is a human rights violation – and all too common around the world.

Legal aid services are not “quality” if they do not involve vigorously challenging detention (through swift and repeated applications for release), challenging prosecution arguments for detention and gathering evidence to argue effectively for release. Our recent study ‘A Measure of Last Resort?’ on pre-trial detention decision-making shows how, even in Europe, legal aid lawyers are not consistently doing these things, contributing to the over-use of pre-trial detention. You can read more on our campaign to end unjustified and excessive pre-trial detention, including our recommendations to the EU, here.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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