Ensuring early access to legal aid for suspects and defendants

Ed CapeProfessor of Criminal Law and Practice

Early access to legal aid means access to legal aid from the time that a person is suspected of, arrested or detained in respect of, or charged with a criminal offence (whichever is the earliest) and throughout the period up to and including the first appearance before a judge for the purpose of determining whether the person is to be detained or released pending trialUNODC/UNDP Early access to legal aid in criminal justice processes: a handbook for policymakers and practitioners (UN, 2014), p. x

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Defining early access

Demand for legal aid at the early stages of the criminal process is unpredictable, and requires a 24/7 response

Co-operation of the police and law enforcement agents is critical to facilitate early access

Police and law enforcement agents have their own agenda, timescales and pressures

Suspects and accused are at their most vulnerable

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The particular demands of early access to legal aid

A legal framework that guarantees early access, and which regulates in detail how it is to be facilitated and delivered

Organisations, mechanisms and procedures for delivering early access

A sufficient number of skilled and knowledgeable legal aid providers who understand and are committed to delivering early access

Police officers, prosecutors and judges who understand and carry out their respective roles

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The four requirements for effective early access to legal aid

The right of access to a lawyer by a person arrested and detained by police, including during interrogation, is set out in statute

Detailed rules and procedures are set out in Codes of Practice which have legal status

Early access legal aid is provided by lawyers in private practice, who also participate in a duty lawyer scheme

Lawyers can employ qualified para-legals to provide police station legal advice

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An example from England and Wales

Following early criticism, the Law Society adopted an ‘active defence’ approach, and articulated detailed standards

Transparency and accountability of the police is provided by a number of mechanisms, including the custody record, electronic recording of interrogations, and CCTV

The judiciary have made some strong decisions about the importance of early access legal aid, and of an active role by lawyers

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An example from England and Wales

… is challenging

But there are many rewards for individuals, communities and nations

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Delivering early access effectively…