Legal aid in criminal matters : a way forward

Abstract

The provision of free legal advice to an accused who does not have the financial means to employ a lawyer is a long-standing right rendered applicable and applauded through various FHRs declarations. In order to effectively uphold such right, a legal aid system has to be in place with a budget capable of dealing with the running costs of such machinery. The United Kingdom and France have both attempted to reduce the budget allocated to their national systems of legal aid, whilst the European Union in stark contrast to the plight of the frail economies within various EU Member States, continues to put pressure for the further improvement of the legal aid system. However, the EU as well as the ECHR recognise the fact that free legal representation cannot be provided to all with no restraints. The ECHR promotes a two-pronged test in order to establish who can successfully apply for the provision of free legal representation: (i) that such person does not afford legal representation, and (ii) that legal assistance is necessary in the interests of justice. The lack of provision of legal aid may lead to a violation of the right to access to justice, the right to a fair trial and the equality of arms principle. National systems for legal aid should thereby ensure that legal aid is provided as per the standards required. Such standards require the provision of legal aid throughout the whole criminal justice process, from the investigative stage to any possible appellate proceedings and even after conviction. It is therefore up to the States to create an adequate legal aid system which contributes to the further standardisation and application of FHRs. Effective legal representation should thus be ensured.