To recall, in November 2009, the Justice and Home Affairs Council adopted a resolution on a road-map for strengthening procedural rights of suspected or accused persons in criminal proceedings. The European Commission was invited to present proposals concerning the following rights: Translation and Interpretation, Information on Rights and Information about the Charges, Legal Aid and Legal Advice, Communication with Relatives, Employers and Consular Authorities and Special Safeguards for Vulnerable Persons. 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.” Hence, this provision represents a new EU competence to adopt measures concerning criminal proceedings. The measures mentioned in the road-map are the first step towards the harmonisation of criminal procedural law, entailing the codification of the rights of defendants across the EU. In order to foster mutual trust and to improve the rights of suspects, Brussels just have one solution – harmonisation. Member States have different legal systems and legal traditions and the proposals would have an impact on the structure of criminal proceedings as defined by each member state’s national laws. 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.
The proposal on the right to interpretation and translation in criminal proceedings has already been adopted and the proposal on information on rights and information about charges (the Letter of Rights) is presently being negotiated with the European Parliament. The UK has an opt out from Justice and Home Affairs measures. However, the UK loses protection every time it decides to opt in. Nevertheless, the Coalition Government has already decided to opt into several proposals, ceding jurisdiction in this area to the European Court of Justice.
The European Commission has recently 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, therefore, the third proposal in a series of proposals, as above-mentioned, to guarantee minimum rights to a fair trial in the EU.
The Secretary of State at the Minister of 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. It remains to be seen whether the Government decides to opt into the proposal and what comes out from the negotiations between member states and the European Parliament.
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 hoping to change the wording of this provision during the negotiations. Moreover, 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.
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 will seek, during the negotiations, that the proposal would 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 Government is, therefore, expecting, to convince other Member States to change this provision, during the negotiations.
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.
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.”
