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

Asher Leigh Gevaux Flynn, Jacqueline Hodgson, Judith McCulloch, Bronwyn Glynis Naylor

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1 Citation (Scopus)

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.
Original languageEnglish
Pages (from-to)207-239
Number of pages33
JournalMelbourne University Law Review
Volume40
Issue number1
Publication statusPublished - 2016

Keywords

  • Legal aid
  • Legal representation
  • Victorian case law
  • Fair trial
  • Human Rights

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