Legal aid and human rights

Under Article 6(1) ECHR everyone has the general right is ‘to a fair … hearing’ in the determination of civil rights and obligations or of any criminal charge. This implies an appropriate degree of ‘equality of arms’. In relation to criminal offences, Article 6(3)(c) everyone has the right ‘to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require’.

While the UN’s International Covenant on Civil and Political Rights relates only to the determination of criminal charges, nevertheless there is a very similar right to free legal assistance.

What is the extent of the obligation in civil cases under the ECHR?

It is limited to ‘civil rights and obligations’ – a phrase which has attracted considerable caselaw. The essential test is whether the proceedings are decisive for private rights and obligations. So, claims under contract, tort or some investigations into a death by a Coroner may be covered. However, cases relating to deportation, asylum and nationality are not.((Eg P v UK (1987) 54 211))

In civil cases, the threshold of need is high. A lawyer must be ‘indispensable for effective access to court’. But assistance must be more than formal as the intention is not to guarantee rights ‘that are theoretical or illusory but … practical and effective’.((Airey v Ireland (1979-90) 2 EHRR 305))

The most interesting case on the extent of the obligation in civil cases was that taken by the McLibel 2 who successfully argued that they should have had legal aid in a defamation case brought by McDonalds.

What is the extent of the obligation in criminal cases under the ECHR?

The essential threshold is that the accused can ‘participate effectively in a criminal trial’.((Stanford v UK A/282 (1994) unreported))

In deciding whether a case is criminal (and, therefore, subject to the stronger obligation to provide legal aid), the official domestic classification is only one of three relevant considerations. The others are the nature of the conduct in question and the severity of any penalty.((Engel v Netherlands (1979-80) 1 EHRR 706)) The meaning is said to be ‘autonomous’ and the court will decide for itself what should be covered.

The ‘interests of justice’, as decided by the European Court of Human Rights, include the complexity of the case, the ability of the accused to represent him/herself and the seriousness of any sanction.((Benham v UK (1996) 22 EHRR 293 and Granger v UK (1990) 12 EHRR 469)) In England and Wales, the ‘interests of justice’ test was historically represented by the more generous ‘Widgery criteria’ still incorporated in statute as to be taken into account on a decision to grant legal aid:

(a) whether the individual would … be likely to lose his liberty or livelihood or suffer serious damage to his reputation;

(b)whether the determination of any question … may involve consideration of a substantial question of law;

(c) whether the individual may be unable to understand the proceedings or state his own case;

(d)whether it is in the interests of another person that the individual be represented.((Para 5(2) Schedule 3 Access to Justice Act 1999))

What is the consequence of the human rights obligation on England and Wales?

Legal aid is extremely expensive in a country with an adversarial system of justice where services are largely provided by private practitioners. In 2005-6, expenditure was a total of £2.035bn with £523m on defence in the magistrates courts and police stations and £635m in the Crown Court. ((Lord Carter’s Review of Legal Aid Procurement Legal Aid: a market-based approach to reform July 2006, p127)) Over a four-year period, the government has accepted plans to introduce a cut of 4% in Crown Court costs and to allow no increase in other criminal costs Understandably, this is controversial among legal aid practitioners.