Right to counsel
In criminal law, the right to counsel means a defendant has a legal right to have the assistance of counsel and, if the defendant cannot afford a lawyer, requires that the government appoint one or pay the defendant's legal expenses. The right to counsel is generally regarded as a constituent of the right to a fair trial. Historically, however, not all countries have always recognized the right to counsel. The right is often included in national constitutions. Of the 194 constitutions currently in force, 153 have language to this effect.
Around the world
Australia
In Australia, suspects and defendants have the right to have legal representation during investigation and trial. Those under investigation in general have the right to have an attorney present during questioning, but there are exceptions to this right. Australian law does not recognize a right to publicly-funded legal defense, but does recognize that in the absence of counsel the accused may not receive a fair trial as mandated by law. Only the states of New South Wales and Victoria have dedicated public defender systems. Courts have the power to stay proceedings when they determine there is a risk of unfair trial. The High Court of Australia ruled in Dietrich v The Queen that while indigent defendants are not entitled to legal defense as a guaranteed right, a judge should typically grant a request for an adjournment or stay in most serious criminal cases where a defendant is unrepresented, and should allow a trial where a defendant accused of a serious criminal offense is left unrepresented to proceed only in exceptional circumstances.Each state and territory of Australia has a Legal Aid Commission to provide legal services in criminal, civil, and family law matters to the indigent, but will only assist those who meet their threshold criteria, particularly with regard to income. Anyone accused of a Commonwealth crime, or crime falling within the jurisdiction of the federal government, has the right to ask a judge for counsel within two weeks of committal, and the judge may appoint a lawyer if convinced that the defendant cannot afford counsel. A network of community legal centres also exists to provide legal services free of charge to poor people who do not qualify for Legal Aid. Although they receive federal and state funding, they are independent non-profit organizations which rely on lawyers to staff them on a volunteer basis. Most cannot adequately keep up with demand and must turn some people away. Those who cannot obtain any kind of legal assistance may go unrepresented if they cannot pay for a lawyer.
Brazil
The Constitution of Brazil declares that all defendants have right to counsel, and mandates that all defendants who cannot pay for an attorney are entitled to state-funded legal representation in all criminal and civil cases. Public defender's offices exist at both state and federal levels as mandated by the constitution. A person must formally declare that they cannot afford regular legal aid to benefit from public defenders' services.Canada
In Canada, the right to counsel is guaranteed under Section Ten of the Canadian Charter of Rights and Freedoms upon "arrest and detention", as well as the right to habeas corpus. Police must inform those arrested or detained of their right to speak to counsel and provide them with a reasonable opportunity to do so. However, this does not include an absolute right to have a lawyer present during interrogation unless the accused is under the age of 18. In October 2010, the Supreme Court of Canada affirmed in the case R v Sinclair that the right to counsel during interrogation is not absolute. It said that importing US-style Miranda rights was not in the interests of Canada. The ruling was a bare majority ruling, with a strenuously voiced minority opinion stating that it would lead to more false confessions and wrongful convictions.China
According to Article 125 of the Constitution of the People's Republic of China and Article 11 of the Criminal Procedure Law of 1996, Chinese citizens have the right to legal counsel in court. The accused's right to counsel in China only comes into being once a case goes to trial. It does not exist at the investigative stage. A suspect under investigation only has the right to retain a lawyer to assist in securing bail, making procedural complaints, and seeking details from the police on the nature of the crime alleged, and not to start building a defense. A suspect gains the right to retain a lawyer upon having been interrogated or subjected to movement restrictions by the authorities. In cases defined as involving state secrets, the right to counsel is more heavily restricted: a lawyer may only be appointed to assist the suspect with the investigating body's permission. Chinese law allows courts to appoint a lawyer for a defendant unable to hire one, and it is mandatory for courts to appoint a lawyer to the blind, deaf, and mute, minors, and anyone facing the death penalty. The Chinese government operates thousands of legal aid centers nationwide for indigent defendants. The provincial governments rather than the central government are responsible for setting the threshold at which an economically disadvantaged person meets the criteria for legal assistance.In 2022, Chinese justice agencies issued the Opinions on Further Deepening Pilot Efforts on Having Defense Counsel in All Criminal Cases, which translates to Guidelines for Improving Access to Defense Counsel in Criminal Cases. The guidelines specify procedures to involve defense counsel during both the trial stage and the prosecutorial charging stage. Under these guidelines, where an accused has not retained counsel and meets specified criteria, such as facing a felony-level sentence, involvement in a complex or high-profile case, or refusal to plead guilty, the prosecutor’s office or court must notify public defender offices or legal aid organizations to provide court-appointed counsel or arrange assigned counsel. The guidelines also require prompt appointment of counsel and interagency coordination to ensure that appointed or assigned lawyers are named within a few days, gain access to discovery and prosecutorial materials, and can counsel on plea negotiations and other procedural rights throughout the criminal process.