When Clarence Earle Gideon was charged with burglary in Florida in 1961, he was too poor to pay for a lawyer and the court could not appoint counsel to represent him. Gideon was convicted and sentenced to prison. He appealed the decision that denied him counsel and the case went all the way to the US Supreme Court. Abe Fortas argued Gideon’s case pro bono, which seemed apt. The Supreme Court held that Gideon had a constitutional right to a lawyer, funded by the state. Fortas later went on to become a Supreme Court Justice.
I often reflected on Gideon’s case when I sat in court in my early days in practice, when defendant after defendant, unrepresented, pleaded and was dealt with. It just seemed wrong. The complexities of the law were beyond most of these people, who just wanted to get the case out of the way. Legal aid was available, but not as extensively as now.
In the early 1970s, committed lawyers made their time available pro bono to establish a duty lawyer scheme to advise people about their options when facing a criminal charge.The scheme was taken up by the government and is now an established part of the criminal justice system. Duty lawyers can now make initial appearances for a defendant pending a legal aid grant.
The Bill of Rights Act 1990 enshrines the right to counsel. Everyone charged with an offence shall have the right to consult and instruct a lawyer and to receive legal assistance without cost if they have insufficient means and the interests of justice require it.
The government is now reviewing the legal aid scheme. The review is wider than the provision of legal aid in criminal matters. The objective is to ensure the legal aid scheme is efficient and sustainable while also promoting access to justice.
Legal aid is under pressure but that cannot mean those who need representation should be denied it. There are fears funding cuts will reduce access and force a return to people self-representing, to the detriment of the court system.
In a criminal justice system where there is a presumption of innocence on the part of the person charged and a burden of proof beyond a reasonable doubt on the prosecution, the right to counsel is critical.
Although the prosecuting state has access to significant resources not enjoyed by the defence, the right to counsel, while not introducing equality of arms, provides a bulwark against the power of the state. There can be no higher calling than the defence of the liberty of the subject.
In 2004, a new plan was devised to provide representation for legally aided defendants and a pilot for a Public Defence Service was set up servicing the Auckland and Manukau courts. I was a strong supporter of the PDS. From my early days as a lawyer, I had felt the need for such a service.
Initially, there was push-back from the criminal bar. It was felt that the PDS would reduce the number of legal aid cases available to lawyers. But over time, the PDS established its credentials both with the legal profession and with the courts and judges. Four senior PDS lawyers have been elevated to the district court bench.
Today, the PDS is located in 10 cities across the country in district and higher courts, and oversees the duty lawyer scheme in these centres. Committed criminal defence lawyers, most of them remunerated by legal aid, work alongside PDS lawyers, often earning less than they would in private practice, ensuring that the criminal process is carried out properly and with integrity in the interests of their clients.
It is, without doubt, a frontline service. In this regard, criminal defence lawyers and legal aid funding are critical cogs in the criminal justice system and ensure an effective right to counsel, so important in Gideon’s case and enshrined in the New Zealand Bill of Rights Act.
David Harvey is a retired district court judge.
