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40 Melb. U. L. Rev. 207 (2016-2017)
Legal Aid and Access to Legal Representation: Redefining the Right to a Fair Trial

handle is hein.journals/mulr40 and id is 215 raw text is: LEGAL AID AND ACCESS TO LEGAL REPRESENTATION: REDEFINING THE RIGHT TO A FAIR TRIAL ASHER FLYNN,* JACQUELINE HODGSON, JUDE MCCULLOCHt AND BRONWYN NAYLOR* 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. CONTENTS I In tro d u ction .............................................................................................................. 20 8 II Hum an Rights and the Right to a Fair Trial......................................................... 214 III Victorian Challenges to Legal Aid Policy............................................................. 218 BA (Hons), PhD (Monash); Senior Lecturer, School of Social Sciences, Faculty of Arts, Monash University. LLB (Hons), PhD (Birmingham); Professor, School of Law, University of Warwick. t LLB, BCom, PhD (Melb); Professor, School of Social Sciences, Faculty of Arts, Monash University. BA (Hons), LLB (Hons), LLM (Monash), MPhil, PhD (Cantab); Associate Professor, Faculty of Law, Monash University. 207