Legal aid and access to legal representation: redefining the right to a fair trial.

• Jurisdiction: Australia
• Author: Flynn, Asher
• Date: 01 August 2016

CONTENTS I Introduction II Human Rights and the Right to a Fair Trial III Victorian Challenges to Legal Aid Policy A The Dietrich Decision B Restricting Funding for Instructing Solicitors C Chaouk D MK E The Third Case F The Interlocutory Appeal IV Fair Trial Beyond the Criminal Trial A Why Legal Aid Matters Pre-Trial B Why Legal Aid Matters Pre-Charge V European Court of Human Rights: Salduz v Turkey A The Salduz Solution: A Question of Legal Aid? VI Conclusion I INTRODUCTION

Across Western nations, restrictions on the provision of legal aid, coupled with changes to crime control and social welfare policies have significantly increased demand for legal services, while simultaneously increasing the extent of unmet legal need. This shift in government priorities has combined with a reduction in investment across every stage of the legal process to produce a potential storm of injustice. In Australia, financial restrictions and changes to the eligibility and accessibility of legal services across all jurisdictions have impacted significantly on the provision of legal aid, the allocation of resources to community legal centres (which provide free legal services to the poor and disadvantaged), (1) and the types of legal aid programs and policy agendas that can be funded. Elsewhere, reductions in government funded legal services across civil and criminal legal systems have similarly become commonplace. In England and Wales for example, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (UK) c 10 ('LASPO') was introduced in 2012 with the specific aim of cutting the legal aid budget by 350 million [pounds sterling]. (2) The complexities surrounding legal aid funding are fuelled by vexed questions: namely, who most deserves legal aid? In the context of finite funding and expanding demands, on what criteria are priorities decided? And who decides those criteria? (3)

In this article, we argue that access to legal aid is necessary in order to ensure the effective availability of legal counsel, and so, the accused's right to a fair trial. A key determinant in answering the above questions, therefore, is the way in which the concept of fair trial is defined and interpreted. In particular, we consider whether international developments in both access to legal aid for criminal trials, and the extension of access to legal aid and legal representation for pre-trial procedures, can and should inspire change in Victoria. That is, we question whether the right to a fair trial as defined in international (or even domestic) human rights instruments can and should be invoked in the Victorian courts to challenge restrictive access to counsel and legal aid provision.

The right to a fair trial is set out in international as well as regional legal instruments, such as the International Covenant on Civil and Political Rights ('ICCPR'), (4) and refers to core principles including the presumption of innocence, the right to know the nature of the accusation against the accused, and the ability to challenge that accusation effectively in a fair and public hearing by an independent and impartial tribunal. (5) In this context, legal representation is central to the right to a fair trial. The ICCPR is not itself part of Australian domestic law, but related international jurisprudence is relevant to the interpretation of the two human rights instruments introduced in Australian jurisdictions: the Human Rights Act 2004 (ACT), and--a primary focus of this article--the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('Victorian Charter'), (6) both of which include fair trial rights.

Inextricably linked to the right to counsel is the accessibility of legal aid. Without access to legal aid, the right to counsel becomes meaningless for many accused persons, as it may prevent them from accessing a lawyer to defend themselves against the charges they face. This argument is recognised in the qualified right to legal aid included in definitions of fair trial in international instruments such as the ICCPR, (7) and the European Convention for the Protection of Human Rights and Fundamental Freedoms ('ECHR'). (8) It is also recognised more broadly by the United Nations ('UN') General Assembly, which in 2012 adopted the first global instrument dedicated to the provision of legal aid:

Recognizing that legal aid is an essential element of a functioning criminal justice system that is based on the rule of law, a foundation for the enjoyment of other rights, including the right to a fair trial, and an important safeguard that ensures fundamental fairness and public trust in the criminal justice process, [s]tates should guarantee the right to legal aid in their national legal systems at the highest possible level, including, where applicable, in the constitution. (9) The United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems ('UN Principles and Guidelines') require states to ensure 'that effective legal aid is provided promptly at all stages of the criminal process', (10) including, 'all pre-trial proceedings and hearings'. (11) Of particular relevance, given the Victorian Charter's legal basis in the ICCPR, are the findings of the UN Human Rights Committee, (12) that arts 14(3)(b), (d) and 9(1) are violated when a suspect is not provided with legal aid during the initial police detention and questioning. (13) These international instruments set out a clear requirement for legal aid to be provided as part of the right to a fair trial when the accused does not have the sufficient means to pay for legal assistance (the 'means test') and when the interests of justice so require (the 'merits test'). (14)

In this paper, we explore what a clear requirement for legal counsel to be provided as part of the right to a fair trial might mean in practice, drawing on international and domestic definitions of fair trial. In doing so, we support Australian common law and interpretations of the Victorian Charter adopting a less restrictive interpretation of the right to a fair trial. (15) The second strand of our analysis concerns the scope of this right to legal counsel. The criminal trial is widely perceived as the centrepiece of criminal justice. This is the stage at which the prosecution's charges against the accused are tested, the accused is acquitted or convicted, and where relevant, a punishment imposed. In this sense, the courtroom trial is seen as the focal point for ensuring that an overall fair trial is achieved. In light of this view, it arguably makes sense that fair trial is defined according to how the trial itself is run, and that legal aid funding and assistance is subsequently targeted to this phase of the legal process. However, it is also widely acknowledged that this formal, public display of justice is the exception and not the rule. (16) Few cases are contested, most are resolved by guilty pleas, (17) and increasingly, cases are disposed of by alternatives to trial and prosecution, such as cautions and warnings. (18) In addition to this, few cases actually reach the higher courts, as most charges are tried summarily. (19) For the majority of people arrested and facing possible criminal charges, the pre-trial process is thus likely to be the most significant, and possibly the only stage in their case. Additionally, where cases do proceed to trial (that is, to court, whether or not the charges are contested), the statements the suspect made under police interrogation are likely to form a significant part of the prosecution's case.

Accordingly, as the second theme in this article, we argue that an accused person's right to a fair trial should go beyond the trial, to include the pre-trial process and police custody, in line with established jurisprudence under art 6 of the ECHR. (20) This jurisprudence defines fair trial as extending from the point of arrest, up to and including the trial, on the basis that the accused's rights are adversely affected from the moment that she or he becomes a suspect. (21) The European Court of Human Rights ('ECtHR') has held the point of arrest as the stage at which defence rights should be triggered. (22) In line with this definition, early access to legal aid standards has similarly been adopted in international instruments and bodies to recognise that the fairness of the trial will be affected by the fairness of the pre-trial. (23) In this way, the ECHR provision goes beyond the narrow definitions of fair trial applied by the Australian courts. (24)

This article is informed by collaborative research conducted in the Australian state of Victoria, and in England and Wales. We employ an in-depth case study of Victorian case law and policy development to examine the central dilemmas embodied in the allocation of legal aid, the link between legal representation and assistance, and the right to a fair trial. In doing so, we compare the Victorian definition of fair trial--in which the judiciary have insisted on minimum levels of legal representation in, but also restricted to, contested serious criminal cases heard in the higher courts--with the tenets of current ECtHR jurisprudence regarding an accused persons access to a lawyer, as part of ensuring a fair trial under art 6 of the ECHR. This highly restrictive conceptualisation of fair trial in Victoria sits in stark contrast to the interpretation of the ICCPR, the UN Principles and Guidelines, and the established case law of the ECtHR, where--as noted--fair trial is interpreted more widely to include access to legal representation at non-contested hearings and during the pre-trial investigation.

While many European jurisdictions are currently seeking to implement the fair trial requirements of the ECtHR's line of jurisprudence, (25) beginning with Salduz v Turkey ('Salduz'), (26) which (as discussed below), requires access to legal assistance from the first police interrogation, Victoria, with its highly...