Criminal Legal Aid in China

PUBLISHED March 2, 2013

In December last year, I was lucky enough to visit Beijing for a conference on criminal legal aid organised by three leading Chinese universities and funded in a very low-key way by the Ford Foundation. Past LCCSA president, Robert Brown, had previously attended this conference but was unavailable so I went in his place as one of a number of foreign criminal law experts. Robert had told me some thought-provoking stories about the Chinese legal system, such as the notorious practice of charging defence lawyers with contempt for merely  trying to advance their clients? cases contrary to their "confessions? to the police.

The conference was focused on the important new development in Chinese criminal procedure law which provides for legal representation to be available in police stations from January 2013. This change in the law marks the equivalent for China of the advent of PACE in England in 1984. It is a hugely important development but an almost unimaginable challenge for a country with a population of 1.3bn and a population density of 138 per square kilometre (UK 60m/249 per square kilometre) which currently spends a mere £127m on legal aid (not necessarily restricted to crime). Set that against the well known (but notably falling) budget figure of £1bn on criminal legal aid here at home and the scale of the problem is stark. China cannot afford to ignore the demand for access to justice. To do so risks widespread unrest and the ultimate threat of revolution.

Conference themes

A number of common themes were at the forefront of the debate, principally quality assurance and funding. In China and a number of other countries represented, there is no central government funding of legal aid. As a result, there are vast regional differences in coverage and quality and the money spent on lawyers actually representing clients is woefully inadequate.

In some parts of China, legal aid is considered a duty for all private lawyers who must take on a quota of legal aid cases to maintain their right to practise. This system is notoriously unreliable because, in many instances, legal aid amounts to enforced pro bono legal work for which the lawyer will often be unable in practice to recover any payment, even of travel expenses. As can be seen from the relative population density figures given above, travel in regional China often involves long distances and air travel rather than just a long tube or bus journey to a police station in a distant London suburb.

Of course, the Chinese speakers, including a Supreme Court Justice and many officials from the Ministry of Justice, were full of fine words about the importance of human rights in China, the need to provide legal aid to support access to justice and the importance of assuring quality of representation. They were also keen to learn from the developed common law and civil law jurisdictions present, particularly about the means to ensure the delivery of high quality legal aid services to those needing it most. Special priority is being given to death penalty cases and children.

Although legal aid in China has been developing since the foundation of the People?s Republic by Mao in 1949, progress has been painfully slow. In all criminal cases, only 30% of defendants are represented and only 20% have any kind of legal aid. Training for lawyers is limited and there are serious limitations on what even a well qualified lawyer can do to advance a client?s rights in a Chinese criminal case.

Onsite visits

One particular request I made on a number of occasions, before and during our visit, was to see a criminal court and to visit a legal aid office. On the basis that China has signed the International Covenant on Civil and Political Rights guaranteeing a fair trial before a public court and that, in April 2012, China signed up to the United Nations Principles on Access to Legal Aid in Criminal Justice Systems, I thought these were not unreasonable requests.

Although I was ? on my own initiative ? able to visit a legal aid NGO, I was politely, but firmly, rebuffed on the issue of a visit to a court. I was told that Chinese people can visit a court but foreigners are not permitted. The truth is that courts in China are not easily accessible to the public and press commentary is of course strictly controlled generally. The provision of anything like an adequate level of legal aid is only one part of the problem.

After a long taxi ride through the sprawling Beijing suburbs, I did get to see one well funded NGO legal centre, which specialised in migrant workers? rights, doing some criminal legal aid but mostly administrative or civil cases. It had a dedicated staff committed to the work they were doing but it seemed to me that this sort of organisation was exceptional and there were few other comparable examples. Certainly there were almost no private legal aid lawyers at the conference and it was not easy to get information direct from lawyers about what legal aid provision was really like on the ground.

Our system

Judging from the reaction of delegates, the English legal aid system is a beacon of excellence for the rest of the world and in the same way our system of justice is a beacon for the upholding of the rule of law. The English duty solicitor scheme was a significant influence on the establishment of a system for investigation stage legal advice in Japan and other countries have learnt from the English experience.

This year, the European Union is sponsoring a major legal aid capacity building programme in China and the Great Britain China Centre is continuing its work in the field of Chinese criminal justice. The Law Society also maintains a strong interest in China, particularly in relation to cases involving the oppression of lawyers. Yet any conference of this nature is a learning experience both ways. My foreign expert colleagues and I took away a great deal from the experience (as well as the stunning views from a snow-covered Great Wall) and I encourage others to take part in similar conferences where the opportunity arises.

- Peter BinningCorker Binning