Worlds apart

Most legal aid practitioners in this country will find it hard to take an interest in what is happening abroad. They feel that they face enough problems at home. Anger has been the predominant mood at various recent legal aid gatherings, particularly of criminal lawyers. Practitioners face the imminent introduction of compulsory competitive tendering with the consequent threat to hundreds of firms. They also face the prospect of further cuts to the legal aid budget as the Ministry of Justice scrambles to provide its share of savings demanded by this government '“ but which might be even worse under another.

Despite the force of these domestic concerns, global developments in legal aid provide a valuable international context for what is happening in the UK.

Funding

Funding provides an obvious point of comparison around the world. Most countries with developed legal aid schemes are facing the pinch '“ whether their money comes from government or elsewhere. If lawyers here feel that they are badly done by, then just cross the Irish Sea. In February, the government of Ireland announced an over-the-board cut of professionals' fees of eight per cent. This caught doctors, dentists and publicly funded lawyers. So thorough was this cut that it even affected prosecution barristers.

Irish legal aid practitioners seemed to be relatively resigned to their fate. Their equivalents in the Australian state of Victoria were more active. Around 200 demonstrated outside the main Melbourne court to make their point. This direct action paid off to a limited extent '“ they won a small increase in their funding from the Commonwealth government.

The result of a similar dispute in the Canadian province of Ontario is yet to be seen. There, 140 of the most experienced criminal lawyers have signed up to a boycott of serious criminal cases involving homicide and guns. The Globe and Mail reported that the signatories comprised 'virtually every experienced defence counsel in Toronto'. Their issue: the extent to which legal aid fees had become uneconomic.

The Obama effect

Jurisdictions dependent on government money are under obvious pressure at the current time. However, there is an additional problem for countries like the United States where a significant part of civil legal aid has been funded from what in the UK would be called interest from a client account. In the US, this is generally known as IOLTA funds '“ interest on lawyers' trust accounts. Plunging rates of return from banks have devastated this income stream in every state that depends upon it '“ from Oregon in the west to Massachusetts in the east. As a consequence, civil legal services' programmes have been hit by a pincer movement. The New York Times reported (18 January 2009) that:

'Now, for many legal aid groups across the country, cutbacks in staffing are expected to reach 20 per cent or more over the coming months, even as requests for their services have risen by 30 percent or more.'

The Director of Legal Services in Connecticut was reported as saying that the future of up to a third of his 150 lawyer posts were in doubt. He commented: 'We are watching the interest rates with a sense of horror.'

The United States also, however, provides one of the few rays of light among the leading legal aid countries. The Obama effect is not limited to the charming of audiences in Cairo. His presidency is beginning to impact on domestic US policy. That includes, unsurprisingly since the president is a Harvard-trained lawyer, legal services.

Criminal provision remains largely with the states. President Obama has, however, seen through an increase of well over ten per cent in the annual budget of the Legal Services Corporation. This is the body that dispenses federal funds to the individual states for civil legal aid programmes.

In addition, he has encouraged the process of removal from the corporation's restrictions to grantees of a forest of requirements imposed under Republican administrations '“ such as denial of service to unlawful immigrants. As a result, the corporation's budget will be £440m for the 2010 financial year, compared with £390m for 2009. Thus, some programmes can be sheltered from the downturn in IOLTA funds.

The influence of Europe

Paradoxically, just as developed schemes are coping with decline, a number of countries, previously with very low or no legal aid spending, are establishing new schemes or blowing new life into old ones. Georgia provides a good example. Despite the erratic government of President Mikheil Saakashvili, who so spectacularly lost a war with Russia, Georgia has established a really impressive criminal defence system. It has full-time salaried lawyers in 12 offices throughout the country and contracts with around 120 private practitioners. This is not bad for a country with a population of only 4 million and a plethora of other problems to face.

Georgia is just one of a number of countries in Central and Eastern Europe which has recently developed a criminal legal aid scheme. This is, in large part, due to the requirements of the European Convention on Human Rights.

Momentum has also been maintained by the prospect of membership of the European Union. Prior to accession, countries are monitored under a number of criteria. One of these relates to respect for the rule of law and countries face reports on their progress to adequate legal aid provision under this heading.

The slightly bizarre result is that countries like Bulgaria, Lithuania and Hungary have been required to develop schemes which have been the subject of monitoring and evaluation in a way that established members of the European Union have avoided.

The hope of eventual membership keeps the pressure on countries like Georgia, Ukraine and Moldova for which the EU provides a potential support against the demands of a resurgent Russia. Development in these countries has been massively assisted by the ex-Hungarian financier Georg Soros '“ who made billions from the collapse of the pound '“ and his Open Society institutions. These have made access to justice and media freedom '“ both core provisions of the European Convention '“ the two pillars of their work in seeking to liberalise former Soviet countries.

The European Convention has had effect beyond Eastern Europe. In a number of recent cases, the attendant European Court of Human Rights has firmed up its support for the provision of police station advice. In Salduz v Turkey [2008] ECHR 1542, a young man was convicted of taking part in an unlawful demonstration '“ specifically, of hanging a PKK banner on a bridge. He confessed under interrogation but then said that it had been bullied out of him by force. He had been offered no legal representation at interview. The court underlined:

'The importance of the investigation stage in the preparation of criminal proceedings '¦ an accused often finds himself in a particularly vulnerable position at that stage of the proceedings '¦ In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer.'

A similar point arose in Panovits v Cyprus [2008] ECHR 1688. As a consequence, more conscientious states are looking at their police station duty solicitor provision. The Netherlands had already embarked on a pilot programme of duty solicitors during police interviews for very serious cases.

The latest consultation paper on best value tendering in criminal cases from our own Legal Services Commission indicates that the commission are aware that these cases would be a constraint on any proposed major withdrawal of lawyers from the police station.

Guilt by association

Resources are not, however, the only legal aid issue currently making the news. Both India and Germany have faced the same danger of potential identification of lawyer with client. The photo that went around the world after the Mumbai terrorist outrage showed Mohammed Ajmal Amir, also known as Kasab, holding a gun. His right to representation caused a storm because the local lawyers in Mumbai refused to act for him. The chief justice and other legal luminaries weighed in to emphasise his constitutional right to representation. He enflamed the situation further by requesting assistance with legal aid from Pakistan; originally at a time when Pakistan was denying that he was their national. A number of Indian lawyers appointed to act for him refused. One, who accepted, was removed by the court after it transpired that she was also acting for one of the victims of the attack and had a conflict of interest.

A similar issue arose over the case of Josef Fitzl, the Austrian father who imprisoned and raped his daughter. Fritzl's lawyer, Rudoph Mayer, received death threats. The Austrian Times reported Mr Mayer's commendable cool:

'Lawyers who refuse to defend certain acts contradict my view of professional ethics. One caller said I should be hung from a lamp post next to Fritzl. Another letter suggested locking me in a cell next to him. But I don't need personal security. If someone wants to kill me, they'll manage anyway. And I can look after myself. I have been a member of a boxing club in Vienna for 30 years.'

The call of duty

Mr Mayer's combination of cussedness and pugilism provides a good indication that lawyers will survive their current travails and overcome the debiliating effect of reduced funding and challenging clients. But, for countries like Canada, the US, UK and the Netherlands, there are neither easy answers to the problems of funding nor easy careers for aspirant lawyers. There will, however, be a very clear continuing need for a committed advocate for the most unattractive of clients '“ and for recognition of the importance of that role.