Legal aid refers to a situation where, in legal proceedings, state authorities appoint and fund counsel to represent the accused person, where the interest of justice so require taking into account the fact that the accused (a) cannot afford counsel, (b) that he or she faces serious criminal charges, and (c) in a case on appeal, that there are reasonable prospects of success. The accused person should have a choice in who is appointed as his or her legal aid lawyer. However, a court can override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice.
Comprehensive:
Legal aid refers to a situation where, in legal proceedings, the state appoints and funds counsel to represent an indigent person accused of certain offences.[1] Article 14(3)(d) of the ICCPR provides inter alia:[2]
In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (d) ... to have legal assistance assigned to him, in any case where the interest of justice so require, and without payment by him in any case if he does not have sufficient means to pay for it. The provision of legal aid is very important in terms of achieving equality of arms and facilitating the right to defend oneself through counsel.[3] (See *fair hearing*; *right to defence in person or through counsel of own choosing*). Factors to be considered in determining whether legal aid counsel should be provided are:[4] · whether the accused person can afford to pay for private counsel · the seriousness of the offence · the complexity of the case · for appeal cases the objective chance of success
With regard to the seriousness of the offence, It is clear that offences which are only punished with a fine do not warrant legal aid.[5] General Comment 32 of the HRC notes that ‘the gravity of the offence is important in deciding whether counsel should be assigned “in the interest of justice”.’[6] While the HRC has only clearly called for a legal aid lawyer to be appointed in cases where the death penalty may be imposed,[7] the ECtHR has held that ‘where the deprivation of liberty is at stake, the interests of justice in principle call for legal representation’.[8] In Boner v UK, the ECtHR held that a man who had been sentenced to eight years imprisonment had a right to legal aid on appeal in particular in light of ‘the importance of the issue at stake in view of the severity of the sentence.’[9]
In Quaranta v Switzerland,the ECtHR held that where the maximum sentence was three years’ imprisonment for a drug offence, ‘free legal assistance should have been afforded by reason of the mere fact that so much was at stake’.[10] Since the alleged offence had occurred when the applicant was on probation, an additional factor was ‘the complexity of the case’, the domestic court having ‘both to rule on the possibility of activating the suspended sentence and to decide on a new sentence’.[11] The ECtHR found a breach of the right to legal aid.
In appeal cases the objective chance of success may be considered in determining whether legal aid should be given. However, in cases dealing with the death penalty legal aid should be available at all stages of the legal proceedings.[12] In Taylorv Jamaica,the HRC dealt with a constitutional appeal matter, dealing with the imposition of the death penalty. The HRC held that ‘where a convicted person seeking constitutional review of irregularities in a criminal trial has insufficient means to meet the costs of legal assistance in order to pursue his constitutional remedy and where the interests of justice so [require], legal assistance should be provided by the state’.[13]
The accused person should have a choice in who is appointed as his or her legal aid lawyer. However, a court ‘can override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice.’[14] In Estrella v Uruguay, a military court gave the accused person a choice between two officially appointed lawyers. The HRC concluded that article 14(3)(d) has been violated ‘because he was unable to have the assistance of counsel of his own choosing to represent him and to prepare and present his defence’.[15] (Cf *Defence counsel of choice*)
Legal aid counsel ‘must be effective in the representation of the accused’ as cases of ‘blatant misbehaviour or incompetence, may entail the responsibility of the State concerned for a violation of article 14, paragraph 3 (d), provided that it was manifest to the judge that the lawyer’s behaviour was incompatible with the interests of justice’.[16]
**[1]**Robinson LaVende v Trinidad and Tobago communication 554/1993 (HRC 1997). In this case, the applicant had been sentenced to death and applied for legal aid so as to allow him to appeal to the Judicial Committee of the Privy Council. The application for legal aid was refused and therefore he was unable to petition the Judicial Committee for special leave to appeal. The HRC held that ‘it is imperative that legal aid be available to a convicted prisoner under sentence of death, and that this applies to all stages of the legal proceedings’, para 5.8.
[2] See also ACHR art 8(2)(e), ECHR art 6(3)(c). The ACHPR does not provide for the right to legal assistance. However, see the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003) para H(b)(2)(i)-(iii)).
[4] HRC General Comment 32 para 38. See also ZP v Canada communication 341/1988 (HRC 1991) para 5.4, where the HRC noted in appreciation the fact that a local legal aid board assessed the appellant’s chances of success on appeal in determining whether or not it was in the interest of justice that counsel be appointed to handle the appeal proceedings.
[5] in OF v Norway communication158/1983 (HRC 1984), the HRC found no basis in the interest of justice for appointing free counsel to an accused who faced a speeding offence as well as operating a business without disclosing this information to relevant authorities. See also Lindon v Australia communication 646/1995 (HRC 1998) para 6.5.
[12] Robinson LaVende v Trinidad and Tobago para 5.8.
[13] Taylor v Jamaica, communication 707/1996 (HRC 1997) para. 8.2
[14] Croissant v Germany application 13611/88 (ECtHR 1992) para 29. See also Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa para H(d).
[15] Estrella v Uruguay communication 74/1980 (HRC 1990) para 10.
[16] HRC General Comment 32 para 38. Cf Kamasinski v Austria application 9783/82 (ECtHR 1989) paras 65-71; Sejdovic v Italy application 56581/00 (ECtHR (GC) 2006) para 95.
Legal aid refers to a situation where, in legal proceedings, state authorities appoint and fund counsel to represent the accused person, where the interest of justice so require taking into account the fact that the accused (a) cannot afford counsel, (b) that he or she faces serious criminal charges, and (c) in a case on appeal, that there are reasonable prospects of success. The accused person should have a choice in who is appointed as his or her legal aid lawyer. However, a court can override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice.
Comprehensive:
Legal aid refers to a situation where, in legal proceedings, the state appoints and funds counsel to represent an indigent person accused of certain offences.[1] Article 14(3)(d) of the ICCPR provides inter alia: [2]
In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (d) ... to have legal assistance assigned to him, in any case where the interest of justice so require, and without payment by him in any case if he does not have sufficient means to pay for it.
The provision of legal aid is very important in terms of achieving equality of arms and facilitating the right to defend oneself through counsel.[3] (See *fair hearing*; *right to defence in person or through counsel of own choosing*).
Factors to be considered in determining whether legal aid counsel should be provided are:[4]
· whether the accused person can afford to pay for private counsel
· the seriousness of the offence
· the complexity of the case
· for appeal cases the objective chance of success
With regard to the seriousness of the offence, It is clear that offences which are only punished with a fine do not warrant legal aid.[5] General Comment 32 of the HRC notes that ‘the gravity of the offence is important in deciding whether counsel should be assigned “in the interest of justice”.’[6] While the HRC has only clearly called for a legal aid lawyer to be appointed in cases where the death penalty may be imposed,[7] the ECtHR has held that ‘where the deprivation of liberty is at stake, the interests of justice in principle call for legal representation’.[8] In Boner v UK, the ECtHR held that a man who had been sentenced to eight years imprisonment had a right to legal aid on appeal in particular in light of ‘the importance of the issue at stake in view of the severity of the sentence.’[9]
In Quaranta v Switzerland,the ECtHR held that where the maximum sentence was three years’ imprisonment for a drug offence, ‘free legal assistance should have been afforded by reason of the mere fact that so much was at stake’.[10] Since the alleged offence had occurred when the applicant was on probation, an additional factor was ‘the complexity of the case’, the domestic court having ‘both to rule on the possibility of activating the suspended sentence and to decide on a new sentence’.[11] The ECtHR found a breach of the right to legal aid.
In appeal cases the objective chance of success may be considered in determining whether legal aid should be given. However, in cases dealing with the death penalty legal aid should be available at all stages of the legal proceedings.[12] In Taylor v Jamaica,the HRC dealt with a constitutional appeal matter, dealing with the imposition of the death penalty. The HRC held that ‘where a convicted person seeking constitutional review of irregularities in a criminal trial has insufficient means to meet the costs of legal assistance in order to pursue his constitutional remedy and where the interests of justice so [require], legal assistance should be provided by the state’.[13]
The accused person should have a choice in who is appointed as his or her legal aid lawyer. However, a court ‘can override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice.’[14] In Estrella v Uruguay, a military court gave the accused person a choice between two officially appointed lawyers. The HRC concluded that article 14(3)(d) has been violated ‘because he was unable to have the assistance of counsel of his own choosing to represent him and to prepare and present his defence’.[15] (Cf *Defence counsel of choice*)
Legal aid counsel ‘must be effective in the representation of the accused’ as cases of ‘blatant misbehaviour or incompetence, may entail the responsibility of the State concerned for a violation of article 14, paragraph 3 (d), provided that it was manifest to the judge that the lawyer’s behaviour was incompatible with the interests of justice’.[16]
**[1]** Robinson LaVende v Trinidad and Tobago communication 554/1993 (HRC 1997). In this case, the applicant had been sentenced to death and applied for legal aid so as to allow him to appeal to the Judicial Committee of the Privy Council. The application for legal aid was refused and therefore he was unable to petition the Judicial Committee for special leave to appeal. The HRC held that ‘it is imperative that legal aid be available to a convicted prisoner under sentence of death, and that this applies to all stages of the legal proceedings’, para 5.8.
[2] See also ACHR art 8(2)(e), ECHR art 6(3)(c). The ACHPR does not provide for the right to legal assistance. However, see the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003) para H(b)(2)(i)-(iii)).
[3] HRC General Comment 32 para 38.
[4] HRC General Comment 32 para 38. See also ZP v Canada communication 341/1988 (HRC 1991) para 5.4, where the HRC noted in appreciation the fact that a local legal aid board assessed the appellant’s chances of success on appeal in determining whether or not it was in the interest of justice that counsel be appointed to handle the appeal proceedings.
[5] in OF v Norway communication158/1983 (HRC 1984), the HRC found no basis in the interest of justice for appointing free counsel to an accused who faced a speeding offence as well as operating a business without disclosing this information to relevant authorities. See also Lindon v Australia communication 646/1995 (HRC 1998) para 6.5.
[6] HRC General Comment 32 para 38.
[7] HRC General Comment 32 para 38.
[8] Benham v UK application 19380/92 (ECtHR 1996).
[9] Boner v UK application 18711/91 (ECtHR 1994) para 44.
[10] Quaranta v Switzerland application 12744/87 (ECtHR 1991) para 33.
[11] Quaranta v Switzerland para34.
[12] Robinson LaVende v Trinidad and Tobago para 5.8.
[13] Taylor v Jamaica, communication 707/1996 (HRC 1997) para. 8.2
[14] Croissant v Germany application 13611/88 (ECtHR 1992) para 29. See also Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa para H(d).
[15] Estrella v Uruguay communication 74/1980 (HRC 1990) para 10.
[16] HRC General Comment 32 para 38. Cf Kamasinski v Austria application 9783/82 (ECtHR 1989) paras 65-71; Sejdovic v Italy application 56581/00 (ECtHR (GC) 2006) para 95.