The Rights to Representation in Criminal Matters
Many of us are familiar with the words “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.“
Yes! It is what we hear police officials say on television shows when someone is arrested for a criminal charge. In the Republic of Trinidad and Tobago, the wording is different but upon arrest for a criminal charge, a person must be advised of his/her rights, including his/her right to be represented by an Attorney-at-Law.
Why is this a fundamental right?
A detained person is deprived of their freedom and liberty when arrested by the police however, our Constitution guarantees that any person charged with a criminal offence is to be presumed innocent until proven guilty according to law and the duty is on the State (the ones who arrested/ charged this person) to prove their guilt beyond reasonable doubt. Therefore, until the charges are proven against him, a person continues to enjoy the ‘presumption of innocence’ and as such is entitled to a defence. So that, having legal representation is crucial to ensure that a person’s defence is properly put before the Court, according to the Court’s processes and procedures.
Why is legal representation in criminal matters so important?
Understanding one’s legal rights, the law and the Court’s processes are crucially important when facing a criminal charge. Some persons, however, choose to represent themselves and that remains a matter of personal choice. However, if found guilty of a criminal charge, this usually attracts punishment such as fines, a term of imprisonment or in very serious cases such as murder, the death penalty. Terms of imprisonment can range from a period of time, to life imprisonment. It is for this reason that one should be advised and competently represented before the Court to ensure that justice is properly administered and one’s freedom and liberty are zealously defended. Legal representation is also beneficial where a person has to apply for bail. The right to reasonable bail is also a fundamental right in our Constitution and this is so because of the ‘presumption of innocence.’
It may also be necessary for persons who are incarcerated to have legal representation to address issues that they may encounter while in prison custody. This may range from medical issues such as access to medication or other welfare issues such as ensuring proper nutrition.
Legal representation and pleading guilty.
Legal representation is also beneficial in instances where persons wish to plead guilty for the offences with which they have been charged. Some persons may wish to plead guilty for the specific offence or to a lesser charge, if that is legally available. In these instances, having legal representation is crucial so that the person charged can be made aware of the legal options that exist and can also be advised of the potential sentence that they may face. In these instances, having legal representation may simply mean representing the interests of the person charged, communicating their particular circumstances to the Court, and assisting the Court to ensure that justice is done.
What if I am denied my right to representation when arrested for a criminal charge?
If a person is arrested and is denied access to legal representation or is not informed of this right, it constitutes a breach of his constitutional rights for which he can initiate a constitutional motion in the civil jurisdiction of the High Court of Trinidad and Tobago for compensation for such breaches. He can also use this breach at his trial to advance his defence if necessary.
What if I can’t afford legal representation for a criminal matter?
Persons who have been arrested on suspicion of murder and children who have been arrested for any offence have the right to be provided with representation at the time of their arrest. The Attorneys who attend to these persons at the police station or places of detention, are commonly referred to as Duty Counsel. There is no charge to the individual to access their Duty Counsel.
For all other persons, who are not able to afford an Attorney, they can seek the assistance of the Legal Aid and Advisory Authority to have an Attorney-at-Law provided to them.
How does one apply for Legal Aid for a criminal matter?
For those who are in custody, a request can be made with the welfare department for legal aid representation and the person will be placed on a list to be seen by members of the Public Defenders’ Department to be processed for legal aid. A family member can also make this request at any of the legal aid offices or via the LAAA website. Alternatively, a request can be made of the judicial officer (such as a Judge, Master or Magistrate) when appearing before the Court either in person or virtually, and the judicial officer can assess fitness for legal aid and issue the relevant order.
For those persons who are on bail, a request can be made at any of the Legal Aid and Advisory Authority offices located in Arima, Chaguanas, San Fernando, Port-of-Spain or Tobago. Similarly, in the alternative, a request can be made before the Judicial Officer.
Submitted by:
Michelle Ali
Public Defender II Junior
Public Defenders’ Department
Legal Aid and Advisory Authority,
23 Stanmore Avenue, Port of Spain.
Contact: 638-5222
Email: [email protected]
Published in The Trinidad Express News Paper on Wednesday 27th September, 2023