Chapter 5. Adequate Legal Assistance This chapter follows on from our examination of fair trial rights and also considers Safeguard Five which states that capital punishment may only be carried out after a legal process which guarantees the right to “adequate legal assistance at all stages of proceedings”. We set out the context and the legal framework for the provision of legal representation in death penalty cases in China. Although 2012 revisions to the Criminal Procedure Law expanded the role of lawyers in criminal proceedings, counsel do not enjoy an equality of arms in the preparation of the defence case. Lawyers in China lack access to information, including adequate access to their clients and there remains limited scope to obtain and present potentially mitigating evidence. The difficulties experienced by Chinese lawyers reflect the way in which the state views their role and seeks to limit their independence. The chapter concludes with a discussion of legal aid. International Law Effective legal assistance is a critical component of a fair trial. This assistance must be available at every stage of the criminal proceedings and regardless of the ability to pay. There is a growing body of international law and guidance regarding the provision of legal aid in criminal justice systems derived from Articles 10 and 11.1 of the UDHR and article 14 of the ICCPR. Lawyers must also have adequate time to prepare their case, including carrying out their own investigations. Critical to this right to a defence is adequate access to information. As the Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions has stated, “[t]ransparency is among the fundamental due process safeguards that prevent the arbitrary deprivation of life”. Additions to the Safeguards (1989) build on Safeguard Five by stating that adequate assistance of counsel must go “above and beyond the protection afforded in non-capital cases” at every stage of proceedings. Strengthening of the Safeguards (1996) goes further by encouraging member states where capital punishment has not been abolished to guarantee a fair trial, as contained in article 14 of ICCPR, as well as to bear in mind the Basic Principles on the Role of Lawyers. The State must “ensure the strict confidentiality of all meetings with [a defendant’s] lawyers” (UN Committee Against Torture). Effective counsel should “develop and present potentially mitigating evidence in a capital case” (Inter-American Commission on Human Rights). The availability and quality of legal assistance in death penalty cases is a recognised problem in all countries that continue to use the death penalty, including the United States. The State is the guarantor of counsel’s competence with the implication that the State must also ensure the availability of adequate funding for legal aid services. The 2012 United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems (Principles and Guidelines), approved by the UN General Assembly, provide guidance for the delivery of all legal aid, including the principles of fairness, equality before the law and non-discrimination. The right to legal aid is recognised in Principle 1. Legal aid provides a foundation for the enjoyment of other rights. 38