Duncan Lewis

Exceptional circumstances in Legal Aid When would ECHR require the provision of exceptional funding?

Date: (9 April 2013)    |    

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Article 6(1) of the ECHR, guarantees that every individual shall be entitled to a fair hearing in the determination of their civil rights and obligations. But article 6 does not grant an automatic entitlement to legal aid in civil cases. However the right to access to a court which is one of the components of article 6(1) includes the right to be provided with legal aid in certain circumstances.
In a Court of Appeal case Pine v Law Society described the right to legal aid as exceptional circumstances where withholding of legal aid would make the argument of civil claim practically impossible or it might render a proceeding unfair that such right could be invoked by the virtue of article 6(1) of the convention.
Therefore advisers should consider the following factors when assessing whether article 6 requires the provision of legal aid in their case:
• The importance of what is at stake for the litigant.
• The litigant’s ability to represent him or herself effectively.
• Whether the proceedings are likely to entail a degree of emotional involvement incompatible with the objectivity required by advocacy in court.
• The complexity of the relevant law and procedure.
• The financial implications for the litigant if he or she were unsuccessful.
• Whether provision can be made to achieve effective access to a court, without recourse to legal aid.
The right to life, and the prohibition of torture and inhuman and degrading treatment and punishment
Articles 2 and 3 of the ECHR include the duty to conduct effective investigations into deaths that may have been caused by state agents and allegations of ill-treatment. This may be an exceptional circumstance which gives rise to an obligation to provide legal aid to enable the family of the victim or the claimant to participate effectively in the investigation.
Right to a private and family life
Article 8 of the ECHR provides ‘significant procedural safeguards against inappropriate interferences with the substantive rights protected by article 8’. While the European Court of Human Rights has not found a breach of article 8 as a result of the refusal to grant legal aid, it has suggested that ‘the considerations concerning access to legal aid may be relevant when assessing the adequacy of procedural protection under article 8 of the convention’.