What is Measure C?
Measure C of the Road Map on procedural safeguards for suspects in criminal cases was presented in the form of a proposal for a directive on the right to a lawyer in criminal proceedings and on the right to communicate upon arrest in June 2011. We reported on the progress of this Road Map on EU Procedural Safeguards in 2009 and earlier this year. The latter right is, in fact, Measure D on the Road Map, but once considered only required member states to comply with the Vienna Convention on Consular Relations, so was combined with Measure C for efficiency.
Measure C is arguably the most controversial element of the Road Map because it will render the most impact upon domestic proceedings. Allowing access to a lawyer at all stages of proceedings, which is practical and effective, and where a suspect or defendant does not have the means to pay, free of charge, is problematic for a number of member states.
The Grand Chamber of the European Court of Human Rights considered the right of access to a lawyer in the police station in Salduz v Turkey. The court concluded that as from the first interrogation by the police, the suspect is entitled to the assistance of a lawyer. Not unusual in England and Wales at that time, but lacking across many member states of the EU, if not in form (which it was not in Scotland, see our case note on Cadder v HMA) but in substance. The Netherlands recently piloted access to a lawyer during police interview, but did not allow those lawyers to communicate with their clients in any way, sought them to sit behind their clients in the interview room, with even coughing meeting disapproval because of the possible influence on the interview process.
What does the directive say?
The Commission’s proposal is ambitious. It provides for the right to a lawyer from the moment a person is made aware that they are suspected of committing an offence. In particular that right is to be ensured before the start of any questioning, upon the carrying out of any procedural or evidence gathering exercise where the person’s presence is required or allowed by national law, and from the outset of deprivation of liberty. The proposal aims to ensure that the right is effective in practice. The right is to be provided in a time and manner so as to ensure that the rights of the defence can be exercised. The right is clarified to be in person rather than simply by telephone, and to allow the lawyer to ask questions, request clarification or make statements. Meetings between lawyer and client are not to be limited in time or frequency so as to prejudice the rights of the defence. The lawyer is also to be allowed to check the conditions of detention. Any conversations, be they in person, by telephone, or correspondence are to have their confidentiality ensured by the state. The draft directive also proposes to allow communication as soon as possible with at least one person after arrest, and where a juvenile suspect, to ensure an appropriate adult is informed of the detention. The right to consular assistance is included. Extremely narrow grounds for derogation from these rights are provided.
The draft directive further requires that waiver of exercise of the right to a lawyer can only be accepted once the suspect has received prior legal advice or otherwise obtained full knowledge on the consequences of waiver. The suspect must have the capacity to waiver and the state must be satisfied that the waiver is made unequivocally and voluntarily.
The measure also aims to address some of the problems raised concerning the European arrest warrant, by attaching the effective right to a lawyer set out above to these cases. But it introduces a new right to dual representation. This would enable a requested person to receive advice from a lawyer in the issuing state, which will be notified to the issuing state’s judicial authority by the executing state’s judge.
Perhaps most ambitious in the proposal are the remedies the Commission suggests should be made available for a failure to give effect to the rights set out. The draft says that restitution must be made; the person must be put back in the position they would have been in prior to the breach. In particular, where a derogation is exercised, any statement made by the suspect cannot be used as evidence against him.
Of course, none of the rights will be truly effective without legal aid. The draft directive reminds member states of their obligations under the ECHR and the EU Charter of Fundamental Rights, but goes no further. This will be the next ambitious task on the Road Map.
JUSTICE’s View of the Proposed Directive
We welcome the efforts made by the Commission to make the right to a lawyer one recognised and respected across the EU and generally support all the measures included to try and achieve this. There are areas where we think the measure could be improved however. The measure should be more explicit about the right to a lawyer applying in person at all hearings. The directive seems to focus on the police station, yet its scope is until final appeal. In our view, effective access to a lawyer can only take place in person, in order to ensure not only that the suspect or defendant fully understands the case against them and that the lawyer is following their instructions, but to assess their welfare, and to ensure all the documentary evidence can be fully considered. In England and Wales there are already video link bail hearings with the defendant appearing on screen from the prison. Whilst this is efficient, it does not make taking instructions or making representations an easy task for either client or lawyer. In Scotland, much advice in the police station is currently provided by telephone, following the introduction to legal assistance last October. At this stage lawyers don’t have any disclosure to consider and their ability to properly advise is heavily restricted.
We also have concerns about the mechanism through which the right will be made clear to suspects and defendants. Measure B provides the right to information about rights and charges and is about to be adopted by the EU, but this is not mentioned in this draft directive at all. It is particularly important for children and vulnerable suspects to understand the value of legal advice and we wish to see further emphasis on this group in the directive (though vulnerable suspects are covered by Measure E). There is equally nothing in the directive to require those holding themselves out to be lawyers to have accreditation as such. Legal qualifications vary widely across the EU. In Measure A an article was included to ensure qualification and accreditation of interpreters and translators in order to be used for legal work. We think the same provision should be included in this measure. We were very heartened to see the provision on double defence with respect to the EAW. Having argued for this for some time, and currently conducting a project showing the need for this, we are hopeful that this will remain in the final instrument. But there are many prosecution orientated instruments where the need for dual representation is necessary and this new right should not be limited to the EAW.
The UK’s Approach
Despite agreeing to engage with the Road Map on procedural rights, the UK has not opted in to this measure. The reasons are unclear. Officially, the government expressed concern that too many changes would be required to the UK system as the draft is currently framed, with respect to presence of a lawyer at evidence gathering and to use of the evidence obtained in breach. With the derogation options built into the measure and choice remaining with suspects for whether they seek legal assistance in the first place, we cannot see that these are really problems for continuing successful criminal investigations in the UK. Worse, the government has issued a public statement with four other member states who do not protect the right as well as the UK (Ireland, France, Netherlands and Belgium), complaining that the Commission has gone too far. We are advised by government that they will continue to negotiate in Brussels to ensure that the measure is passed and, with suitable changes, the UK will opt in once the final directive is adopted. It is difficult to see how the UK can convince other member states to change their systems when it is not prepared to change our own on very minor details. This approach is disappointing as the UK should be in a leading position to demonstrate the value of access to a lawyer, yet it has chosen to place procedural technicalities before ensuring British people are able to obtain legal assistance in the same way when they travel to the EU as at home.