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Legal Aid and Access to Legal Representation: Redefining the Right to a Fair Trial

33 Pages Posted: 8 Jun 2017  

Asher Flynn

Monash University

Jacqueline Hodgson

University of Warwick - School of Law

Jude McCulloch

Monash University

Bronwyn Naylor

RMIT University - Graduate School of Business and Law; Monash University - Faculty of Law

Date Written: June 4, 2017

Abstract

The unmet demand for legal aid generally and for criminal law matters in particular, has grown in tandem with the expansion of crime control and increased restrictions on funding for publicly funded welfare and support services. This article examines the connection between legal aid, legal representation and the right to a fair trial. It presents an in-depth case study of Victorian case law and policy development to illuminate dilemmas in the prioritised allocation of legal aid resources in serious criminal trials. It then compares the Victorian courts' approach to a fair trial with the tenets of current European Court of Human Rights jurisprudence regarding the scope and timing of an accused person's right to access a lawyer. The comparison underlines the narrow definition of fair trial under Victorian common law, relative to Europe, where a fair trial is interpreted more broadly to include the right to legal representation during police and pre-trial investigations. The article questions whether international developments in access to legal aid for criminal trials and the extension of legal aid and representation to pre-trial procedures, most notably through the Salduz case (heard in the European Court of Human Rights), may inspire change in Victoria.

Keywords: criminal law, legal aid, right to a fair trial

Suggested Citation

Flynn, Asher and Hodgson, Jacqueline and McCulloch, Jude and Naylor, Bronwyn, Legal Aid and Access to Legal Representation: Redefining the Right to a Fair Trial (June 4, 2017). Available at SSRN: https://ssrn.com/abstract=2980337

Asher Flynn

Monash University ( email )

Wellington Road
Victoria, Roodepoort 3145
Australia

Jacqueline S. Hodgson (Contact Author)

University of Warwick - School of Law ( email )

Gibbet Hill Road
Coventry CV4 7AL, CV4 7AL
United Kingdom
02476 524163 (Phone)
02476 524105 (Fax)

HOME PAGE: http://www2.warwick.ac.uk/fac/soc/law/staff/academic/hodgson

Jude McCulloch

Monash University ( email )

Wellington Road
Victoria, Roodepoort 3145
Australia

Bronwyn Naylor

RMIT University - Graduate School of Business and Law ( email )

Melbourne
Australia
+61 3 9925 1297 (Phone)

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

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