Upholding the right to legal representation in China — an Australian perspective of counsel competence and the right to a fair trial

Research output: Journal Publications and Reviews (RGC: 21, 22, 62)21_Publication in refereed journalpeer-review

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Author(s)

Detail(s)

Original languageEnglish
Pages (from-to)179-201
Journal / PublicationAsia Pacific Law Review
Volume28
Issue number1
Online published15 Oct 2020
Publication statusPublished - 2020
Externally publishedYes

Abstract

Since 2017, China has endorsed a policy of promoting full-coverage legal representation for all individuals facing criminal charges. This article is the first study which examines the nature, manifestation and substance of this lawyering project through the lens of a comparative analysis across the Australian and Chinese models of criminal defence. We argue that China’s call for counsel to appear in every criminal case will only amount to a mere procedural formality as a result of the limited ability of defence counsels to provide meaningful legal assistance, along with the restraints placed on legal defence in China’s criminal justice system. While Australia has sought to guarantee adequate legal representation under the rubric of the right to a fair trial, two pivotal issues have undermined the quality and effectiveness of criminal legal representation in China. Specifically, our analysis focuses on the challenges of counsel incompetence and the institutional dynamics of Chinese criminal proceedings that inhibit the work of defence lawyers. One innovative aim of this article is to uncover the shortcomings predominantly in China, but also in Australia to an extent, and to promote the right to genuine legal representation within the context of a common narrative of securing procedural safeguards for criminal defendants. © 2020 School of Law, City University of Hong Kong.

Research Area(s)

  • adequate legal assistant, Australia, China, counsel competence, fair trial, Right to legal representation