Legal Aid and Access to Legal Representation: Redefining the Right to a Fair Trial
Flynn, A., Hodgson, J., McCulloch, J. and Naylor, B. (2016) “Legal Aid and the Right to a Fair Trial: A Question of Human Rights” 40 (1) Melbourne University Law Review
33 Pages Posted: 8 Jun 2017 Last revised: 26 Feb 2020
Date Written: June 4, 2017
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
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