Directive on the right to legal aid

The EU Roadmap on procedural rights for suspects and accused people in criminal matters continues apace, with three Commission proposals for Directives being considered by the institutions: the right to legal aid; procedural safeguards for children; and strengthening certain aspects of the presumption of innocence and the right to be present at trial. The UK has an option whether to engage in deliberations and voting on these instruments and has decided not to opt in at this stage, though once they are adopted, could choose to do so at any time. We prepared detailed briefings on the first two measures in collaboration with the International Commission of Jurists, which now has a Brussels office, and these were published on 5th September. The final briefing will follow shortly.

With regard to legal aid, we express our disappointment that the proposal is under ambitious. The measure currently provides for legal aid during police detention and in European arrest warrant cases. This is welcome, but it leaves important details as to quality and organisation of legal aid to a Recommendation. We call for the inclusion of these standards in the binding Directive, so as to accord with international standards laid out in the jurisprudence of the European Court of Human Rights, and the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems. Requirements for quality legal aid and independent, qualified lawyers that the person is able to choose are essential to ensuring that suspects and accused persons can exercise an effective defence. Likewise, setting out the criteria upon which legal aid will be granted and an obligation to administer it through a body independent of government, promptly and with the possibility of review are crucial to the Directive improving standards across the Member States.

  • The Directive should apply to suspects or accused persons from the point at which they have a right of access to a lawyer in accordance with Article 3.2 of Directive 2013/48/EU, irrespective of whether they are deprived of liberty.
  • Provisional legal aid should not be confined to persons in detention, and should continue until the final decision on legal aid has been taken and comes into effect, and until either a legal aid lawyer has been appointed, or the person has had adequate facilities and a reasonable opportunity to find and engage the services of a lawyer.
  • In EAW cases, the right to provisional legal aid should apply to requested persons deprived of liberty in the executing Member State, both with respect to executing state and issuing state legal assistance, pursuant to Article 10 of Directive 2013/48/EU.
  • The Directive should require that Member States provide a comprehensive, accessible system of legal aid, administered by an independent, competent authority. Its decisions should be prompt, in writing and be subject to review.
  • Choice of lawyer and continuity of legal representation should be guaranteed, in accordance with the wishes of the suspected, accused or requested person.
  • Recovery of the costs of provisional legal aid should not be possible as it would seriously inhibit access to legal assistance.
  • The eligibility criteria for access to legal aid should be included in the directive, setting out ‘means’ and ‘merits’ tests, modelled on paragraph 3 and 4 of the accompanying Recommendation on legal aid.
  • The quality of legal assistance should be guaranteed so as to ensure the effective exercise of the rights of the defence. This should require appropriate qualification, training and accreditation of legal aid providers and appropriate remuneration.
  • The independence of lawyers and the organisation of the defence should be guaranteed.
  • Easily understandable information on legal aid in criminal proceedings should be made available to suspected, accused and requested persons.
    A right to judicial review should be available if access to legal aid is undermined, delayed or denied or if suspected, accused or requested persons have not been adequately informed of their right to legal aid.
  • The rights provided by the Directive should be respected and ensured without discrimination of any kind.
  • Member States should take special measures to ensure the provision of effective legal aid to suspected, accused or requested children.