Just before Christmas, on 20 December, the UN General Assembly passed unanimously a resolution on the principles and guidelines that states should follow in relation to criminal legal aid. The UK, so truculent in EU negotiations on suspects’ rights in the European Union, joined the general consensus that, no doubt, the principles were a good thing for the more benighted countries of the world; were fuzzy and unenforceable in any event; and not really applicable to us.
Such a judgement would, in essence, be correct. Mauled as it is, our legal aid system is still among the world’s best and we should remain proud of it. The UN principles enshrine the right to legal aid without discrimination and throughout the criminal justice process. They emphasise the need for legal aid practitioners to be independent of the state and, thereby:
free from undue political or judicial interference, be independent of the Government in decision-making related to legal aid and should not be subject to the direction or control or financial intimidation of any person or authority in the performance of its functions, regardless of its administrative structure.
The guidelines underline the right to the presence of a lawyer during any police interview ‘in the absence of compelling circumstances’.
Most of the provisions are effectively the advocacy of the legal aid equivalent of motherhood and apple pie. No harm, however, in that. Legal aid practitioners will benefit from training and accreditation. There should be research and the analysis of appropriate data about the effectiveness of the legal aid service. The one issue on which the Brits might have been a bit shy was the encouragement of stand-alone legal aid administrative bodies:
To ensure the effective implementation of nationwide legal aid schemes, States should consider establishing a legal aid body or authority to provide, administer, coordinate and monitor legal aid services.
The Legal Services Commission is, of course, being abolished in April and its role absorbed within the Ministry of Justice.
The fluffiness of the principles is revealed somewhat by comparison with similar attempts to provide universally applicable guidelines. For example, the ABA’s ‘ten principles of public defense delivery’ systems, devised in 2002, included a provision seeking to limit the potential overload of under-resourced defendant lawyers. Of course, one major difference, very attractive to governments like the UK anxious to maintain national sovereignty to reduce entitlement, is that these guidelines have absolutely no domestic force. In this, they are distinguishable from decisions of the European Court of Human Rights or directives and their equivalents from the European Union. The UK is extremely hostile to these when they seek constitutionally to embed the rights of suspects and defendants in any kind of enforceable way.
The value of these guidelines is likely to lie elsewhere, therefore, than the UK which operate, at least for the time being, under constraints from elsewhere. However, they may have a persuasive effect in areas of the world such as eastern Europe, Asia and Africa where nascent legal aid schemes are struggling to establish themselves. They do provide the first global recognition of the general rights of suspects and defendants in criminal cases to legal aid. Let us hope that they will inspire reform – and funding.
