It is a general rule that if you ever find yourself on an undesired insider's tour of a foreign country's criminal justice system, there is little your home country can do for you. Should you request it, the local diplomatic representatives of your nation must be informed by the authorities, ¹ and officials from the missions have the right to visit you to ensure that you are being well treated, ² but apart from supplying you with a list of local lawyers they don't usually become involved in legal proceedings.

In some circumstances, however, governments are prepared to go further. Australia, for instance, has reserved the discretionary ability to fund the legal costs of nationals facing serious charges, ones that carry jail sentences of twenty or more years.

On the 2^nd of July, the Australian government announced changes to their funding rules, replacing the Serious Overseas Criminal Matters scheme with the Scheme for Overseas Matters Involving the Death Penalty, which is designed to provide financial assistance to those who face the possibility of capital punishment and who have 'a continuing connection to Australia'.³

Assistance is still potentially available where an individual with a continuing connection to Australia faces charges that may lead to their being imprisoned for twenty years or more, if the Commonwealth Attorney-General accepts that there are exceptional circumstances. ⁴

Both schemes are intended for people who otherwise would not have access to proper legal representation, because they cannot independently afford their own lawyers and do not have access to subsidized or free counsel. It does not define what 'a continuing connection to Australia' actually means.

Funding is still discretionary, and effectively in the gift of the Attorney-General, but the changes, with the addition of the 'exceptional circumstances' requirement, now makes it less likely that those facing the loss of their liberty rather than their lives will receive assistance from their government.

Eligibility

Assistance is available where the accused person is at risk of being punished by the death penalty and, in exceptional circumstances, by imprisonment of twenty years or more.

Assistance can be granted to people who:

· cannot meet the cost without incurring serious financial difficulty;

· are not eligible for legal assistance in the overseas country; and

· have a continuing connection with Australia.

If you have any questions regarding this blog, feel free to contract James at anderson.chengdu@anallp.com

Disclaimer: This Blog is made available by Anderson & Anderson LLP for educational purposes only as well as to give general information and a general understanding of the law, not to provide specific legal advice.  By using this Blog site, you understand that there is no attorney-client relationship between you and James Gard or Anderson & Anderson LLP.  This Blog should not be used as a substitute for competent legal advice from a licensed attorney in your state or country.

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 1. Vienna Convention on Consular Relations, Art 36(1)(a)

 2. Ibid, Art 36(1)(c)

 3. The Commonwealth Guidelines for Legal Financial Assistance 2012: 3.6

 4. Ibid, 3.10(2)(e)

(Photo credit: theamericanreader.com)