Last July, the European Commission proposed a draft directive on the right of access to a lawyer in criminal proceedings and the right to communicate upon arrest. The proposal intends to “approximate” Member States’ procedural rules regarding the time and manner of access to a lawyer for suspects and accused persons and for persons subject to a European Arrest Warrant (EAW), aiming at enhancing mutual trust. This draft directive is the third proposal in a series of proposals to guarantee minimum rights to a fair trial in the EU. Is important to recall that under Article 82 (2) TFEU, the Council acting by QMV together with the European Parliament through the ordinary legislative procedure may adopt directives establishing minimum rules to “facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension.” This provision represents, therefore, a new EU competence to adopt measures concerning criminal proceedings.

The Secretary of State for Justice, Kenneth Clarke, has explained to the European Scrutiny Committee that the UK already complied with several provisions of the draft directive, nevertheless the draft proposal will, unless amended during the negotiations, require changes in the UK law and practice. The proposal if adopted would increase the scope of existing UK law and practice in this area, consequently it would have financial implications, chiefly for the UK’s legal aid budget. The Government has, therefore, decided not to opt into the draft directive. Nevertheless, the Government may opt into the measure after it has been adopted.

On 22 September, at the Justice and Home Affairs Council, several member states spoke against the Commission proposal. In fact, five member states, Belgium, France, Ireland, the Netherlands and the UK issued a statement ahead of the meeting stressing that “the Commission proposal was too ambitious, and that it went unnecessarily beyond the European Convention on Human Rights (ECHR) and its Protocols, as interpreted in the case law of the European Court of Human Rights (ECHR).

The Commission’s proposal would have an impact on the structure of criminal proceedings as defined by each member state’s national laws. It is important to mention that Article 82 TFEU provides that the adoption of minimum rules “shall take into account the differences between the legal traditions and systems of the Member States.” However, the Commission has been putting forward proposals in complete disregard of the different legal systems within the EU, particularly the common law system. In fact, the member states above-mentioned noted that “The Commission’s proposal does not take into account the differences which exist between different systems and between different types and stages of proceedings.” They believe that the draft proposal “could entail the risk of prejudicing criminal proceedings by complicating them and slowing them down.

Particularly, there are concerns about the rising costs that the proposal would entail. According to French Justice Minister Michel Mercier “Extending the circumstances in which a lawyer can be present will obviously incur a budgetary cost,” he has estimated an added cost of several million euro.

The draft directive would govern the rights of suspect and accused persons to have access to a lawyer in criminal proceedings against them, as well as the right of suspects and accused persons who are deprived of their liberty to communicate upon arrest with a third party. It would apply from the moment that people are made aware that they are suspect or accused of having committed a crime until the conclusion of criminal proceedings (including any appeal).

Member States would be required to grant access to a lawyer upon deprivation of liberty and upon any questioning. In the UK access to a lawyer is granted before police interview, however any questioning, as required in the draft proposal, may entail questions made by the police outside a formal police interview. The access to a lawyer must also be granted at procedural or evidence-gathering acts, unless this would jeopardise the acquisition of evidence. However, the presence of a lawyer is not always required, in the UK, at all procedural or evidence gathering acts. The Government is concerned with the concept of "access to a lawyer" which does not include the legal advice provided by phone at police stations in England and Wales.

Under the draft proposal, the suspect or accused person must have the right to meet with the lawyer representing him/her, “for an adequate duration and frequency to ensure the effective exercise of the rights of defence.” The lawyer would also have the right to attend any questioning or hearing, any investigative or evidence-gathering act, as well as accessing the place of detention, in order to check the conditions of detention. In the UK, lawyers usually do not check conditions of detentions, in fact this role is carried out by the Independent Custody Visitor Association and by the Independent Monitoring Board.

According to the five member states, mentioned above, “…to mandate the presence of a lawyer for every investigative measure where the suspect’s presence is required or permitted (for instance when the suspect’s fingerprints are taken), and to permit the physical presence of the lawyer in every case, no matter how minor” would lead “to delay in the early stages of investigations, without commensurate added value for the suspect’s interest which could even be harmed by such delay.” Moreover, it would entail considerable additional resources from Member States. It has been estimated that this could cost to the UK around £32 million a year. Hence, those member states have stressed that “Any Directive should strike the right balance between on the one hand the right of access to lawyer and on the other hand the need to ensure the effectiveness of Member State justice systems.

Under the draft proposal, Member States would be required to ensure that suspect or accused persons deprived of their liberty have the right to communicate with at least one person named by them as soon as possible, including family member or employer. Any derogation to this right “must be justified by compelling reasons pertaining to the urgent need to avert danger for the life or physical integrity of one or more people.” Kenneth Clarke pointed out that in England, Wales and Northern Ireland “These rights are subject to exemptions relating to interference with evidence, harm to others, alerting others who may have committed an offence or hindering recovery of property.”

The draft directive also provides for the right to communicate with consular or diplomatic authorities. Under the 1963 Vienna Convention on Consular Relations, Member States have already the duty to ensure that all foreign detainees are able to have the consular authorities of their State of nationality informed of the detention if they so ask, and to communicate with the consular or diplomatic authorities.

The draft proposal requires that all communications between a suspect and accused person and his/her lawyer must be entirely confidential, and there is no scope for derogations. However, the UK law provides for limited exceptions to confidentiality, for instance “where there is reason to believe that correspondence is being abused with intent to further a criminal purpose, prison authorities would have the ability to intercept correspondence.” The Government considers that the proposal should allow limited exemptions to the principle of confidentiality.

Member States would be required to ensure that people such as witnesses who, during questioning or a hearing, become suspects or accused persons, are granted access to a lawyer. This is consistent with UK law and practice and the Government agrees that it is an important principle. However, member states would be also required to ensure “that any statement made by such person before he is made aware that he is a suspect or an accused person may not be used against him”, and there is no such rule in the UK law.

This proposal will also apply to persons subject to the EAW, from the time they are arrested in the executing Member State. Moreover, Member States are required to ensure that any person subject to EAW also has the right of access to a lawyer promptly upon arrest pursuant to a European Arrest Warrant in the issuing Member State, in order to assist the lawyer in the executing Member State. No derogation is allowed from this provision. The draft proposal provides for a limited scope for derogations. Hence, Member States would be allowed to derogate from the right of access to a lawyer only in exceptional circumstances, as “any derogation must be justified by compelling reasons pertaining to the urgent need to avert danger for the life or physical integrity of one or more people” and it “must comply with the principle of proportionality.” Moreover, under the draft proposal “derogations may only be authorised by a reasoned decision of a judicial authority.” The Government has noted that there are several circumstances in England, Wales and Northern Ireland where the rights provided in the proposal could be limited beyond the circumstances above-mentioned. Moreover, in the UK the decisions to derogate are usually taken not by a judicial authority, as required in the proposal, but by law enforcement authorities.

The present draft directive is not intended to regulate the issue of legal aid. But it provides that Member States may continue to apply their domestic provisions on legal aid as long as they are in line with the Charter of Fundamental Rights, the ECHR and the case law of the European Court of Human Rights. The Commission is planning to present a legislative proposal on legal advice and legal aid by the end of the year. One could say that the Commission will try to harmonise the different rules governing legal aid, which differ from a member state to another. In fact, any proposal on legal advice and legal aid is likely to increase the UK existing obligations under the ECHR as well as raise the UK legal aid expenditure. The five above-mentioned member states pointed out that “Any directive on the right of access to a lawyer should take into account the consequential costs and implications for Member States’ legal aid systems.

Under the draft directive Member States are required to ensure that a suspect or accused person are entitled to an effective remedy where their right of access to a lawyer has been breached. Member States would be required to ensure “that statements made by the suspect or accused person or evidence obtained in breach of his right to a lawyer or in cases where a derogation to this right was authorised (…), may not be used at any stage of the procedure as evidence against him, unless the use of such evidence would not prejudice the rights of the defence.” However, in the UK the trial judge makes such decisions. Kenneth Clarke pointed out “Whilst evidence obtained in breach of the right to a lawyer may well be deemed inadmissible, there is no rule stating that this must always be the case.”