CLSA. Criminal Law Solicitors Association response to the: EU draft directive on access to Lawyers in criminal proceedings.

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1 CLSA Criminal Law Solicitors Association Suite 2 Level 6 New England House, New England Street Brighton, BN1 4GH DX 2740 Brighton sue@clsa.co.uk Tel: Criminal Law Solicitors Association response to the: EU draft directive on access to Lawyers in criminal proceedings. 1

2 The Criminal Law Solicitors' Association is the only national association entirely committed to professionals working in the field of criminal law. The CLSA represents criminal practitioners throughout England and Wales and membership of the Association is open to any solicitor - prosecution or defence - and to legal advisers, qualified or trainee - involved with, or interested in, the practice of criminal law. The CLSA is responding to the consultation on behalf of its members. 1. Do you consider that the draft Directive would help to provide the level of mutual trust necessary to support the mutual recognition of decisions or judgments between Member States? Answer: The Association considers that this directive is an important step towards providing mutual trust between Member States as the draft will inevitably enhance the integrity of the investigation process by providing for the independent safeguard of legal representation for the suspect in all Member States. Of course there may be other aspects of each Member States judicial process beyond the investigation stage which may impact upon the mutual recognition of each Member State s judgements but the requirement of independent lawyers at the investigation stage is a solid foundation upon which to build such trust and recognition. 2. In your view, do the provisions of the draft Directive add value to the European Convention on Human Rights? Answer: The rights granted by Article 6(3) (b) ECHR stipulates that everyone charged with a criminal offence has the right to have adequate time and facilities for the preparation of his defence while Article 6(3) (c) enshrines the right to defend [one] self in person or through legal assistance of [one s] own choosing. The need to add value (or judicial teeth) to the articles has become increasingly apparent from a line of judgements against various Member States resulting in substantial damages being awarded against them for breach of Article 6. 1 If the draft directive were adopted it would then become incumbent upon the Member States to introduce proper access to lawyers and thus avoiding the embarrassment and huge cost of such adverse judgements. 3. Do you think that the provisions set out in Article 3 with regard to when a suspect or accused person should be granted the right to access a lawyer are both fair to that person and workable in practice? 1 See Salduz v Turkey, judgment of 27 November 2008, application no /02, 5 and Panovits v. Cyprus, judgment of 11 December 2008, application No. 4268/

3 Answer. The Association fully supports the provisions set out in the proposed article 3 and believes them to be both fair and workable for the benefit of the suspect, subject to adequate legal aid funding to encourage the growth and retention of a skilled cadre of lawyers specialising in crime and police station work in particular. Without sufficient numbers of trained specialist lawyers the proposed article 3 would be well meaning but ineffective thus defeating the purpose thereof. 4. Do you think that it is always necessary for a suspect or accused person to meet their lawyer, rather than, for example, gaining legal advice over the telephone? Answer: There should be a presumption in favour of such an in person meeting subject only to the right of the suspect to waive such an attendance following contact by telephone with a lawyer. There are situations when, for example due to child care issues, a guilty shop lifter who has already admitted guilt, may wish to proceed rather than wait for a face to face meeting following advice that an out of court disposal is likely due to lack of prior convictions. In such a case provided the reasons are well documented the presumption in favour of a meeting may not need to apply to the detriment of the lawyer. There should also not be the need to attend in person if there is to be no police interrogation interview unless the client is especially vulnerable or complaining of police misconduct. Subject to such exceptional circumstances this Association believes that in most cases a meeting with the suspect is desirable followed by presence during any interview. 5. With regard to Articles 3(1)(b) and 4(3), what do you think would be the practical implications of granting lawyers the right to attend any procedural, investigative, or evidence-gathering act, albeit, only in cases where national law permits or requires the presence of a suspect or accused person and where it would not prejudice the acquisition of evidence? Answer: The Association do not feel there are any adverse practical implications as the UK law already permits lawyers to attend at significant stages of the investigation when the suspect is present, for example at any separate identification procedure. 6. Can you think of any circumstances when it would be necessary in the interests of justice to restrict the right proposed at Article 4(2) regarding a lawyer s right to be present at any questioning and hearing? Answer: There should be no restriction upon the right of a suspect to access a lawyer. There should only be a restriction on access to a particular lawyer where the lawyer has been guilty of criminal or grossly unprofessional behaviour when the suspect must be offered an alternative lawyer. The police should be the subject of judicial sanction should a subsequent court consider the police have acted unreasonably and the lawyer has not in fact been found to be guilty of criminal misconduct or grossly unprofessional behaviour. The restriction upon an individual lawyer must not apply simply on the basis of a subjective police view point and never upon the basis due to a police perception that a particular lawyer is effective and therefore should be discouraged from representing any suspect. 3

4 7. Do you think that granting lawyers routine access to the place where a person is detained would add any value to the existing measures in place in the UK to monitor custody conditions? Answer: The Association does feel the provision in the proposed article 4 (4) does very much add value to existing UK measures. The existing regime of inspection by lay visitors is ineffective, inadequate and of dubious independence in practice. The following extract is the direct experience of a former lay visitor who states: When I attended training I would describe some of those there as failed magistrates I hope I m not being too unkind. That was some years ago now and from reading custody records it seems as though some lay visitors can be quite robust. However, it is also possible for custody suites to shield lay visitors from what they don t want them to see. I wasn t a lay visitor for long because on my second or third attendance at a police station I was not allowed to visit the custody suite because the Inspector said that they had too many in custody! I wasn t impressed and reported this to the Police Authority but I was told that they supported the Inspectors decision. With the Inspector being able to effectively pick and choose when it was convenient to have a lay visitor I decided to leave. (the lay inspection regime) It can therefore be seen that unless the person inspecting has real authority it is an elaborate form of window dressing. The other aspect is that the inspections are few and far between. Our members attend police stations daily and rarely see lay visitors. Bizarrely it does not seem to be the practice of lay visitors to obtain defence lawyers input as to the conditions in which their clients are kept. The ubiquitous presence of lawyers at police stations plus their commitment to the welfare of their clients does suggest that they are probably the most effective and indeed most cost effective option to ensure proper inspection of custodial conditions. Further, in the case of the duty solicitor it would be desirable for these to make their presence known to suspects who may choose thereafter to exercise their rights to obtain legal advice. However an inspection regime of any description will be of no effect if there are not real sanctions against the police for poor detention conditions. This should not only result in complaint but if not remedied should be a presumptive factor against evidential admissibility of a subsequent interview. This will prevent poor conditions resulting in alleged confessions by suspects simply to bring their incarceration in poor conditions to an end. 8. Can you think of any circumstances when it would be necessary in the interests of justice to limit the duration and frequency of meetings between the suspect or accused person and his or her lawyer? Answer: None. It is accepted that there has to be a balance between the duration and frequency of meetings with the need to progress the case and thus avoiding extension of time in custody. However this should not be a matter for the police and should be entirely a matter for the lawyer who should advise for the necessity for and obtain the 4

5 informed consent of the suspect to the duration and frequency of meetings. Any attempt to limit access to a lawyer will result in unnecessary anxiety for a client no doubt already deeply upset about enforced detention. 9. Do you think that a derogation to any of the rights outlined in this Directive need to be authorised by a judicial authority, rather than the police or other law enforcement authorities? Answer: Yes. The rights of a suspect are so important, especially the protections set out in article 4 (1-3), that they should only be authorised by a duly reasoned decision taken by a judicial authority on a case-by-case basis. By analogy where the police regulate the period of time spent in detention it is rare (albeit not unheard of) for a UK Superintendent to decline the investigating officer s request for an extension of time. Often this is in situations whereby there would be no prejudice to the police case by releasing a suspect on bail pending further investigations. We are confident that independent research would confirm our view on this. Police Superintendents do not appear to take such quasi judicial decisions free from the pressure (cultural if not direct) upon them to grant such authority for the benefit of and at the request of police colleagues. Hence any derogation from the main provisions of the directive should be subject to independent judicial scrutiny. Further 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. In addition, any derogation must comply with the principle of proportionality as per paragraph 25 of the draft directive. 10. Are the derogations in Article 8 adequate? Should they only apply to Article 3, Article 4 paragraphs 1 to 3, Article 5 and Article 6? What are the practical implications of the derogations? Answer: The derogations are more than adequate in the view of this Association and any further power derogate will substantially undermine the impact of this directive if extended as proposed by question Do you think that the provisions in Article 9 with regard to the conditions that should be met to allow somebody to waive their access to a lawyer are fair to that person and workable in practice? Answer: The Association is concerned by the wording of the condition set out in Article 9 1. (a) the suspect or accused person has received prior legal advice on the consequences of the waiver or has otherwise obtained full knowledge of these consequences; This provision (as emboldened by the Association) opens the possibility for the police regularly replacing contact between the suspect and a lawyer by means of hurried verbal communication or a written notice neither of which will have the same impact as prior advice. It is well known and researched that the right to legal advice is often communicated in a non effective manner by UK custody sergeants and this provision 5

6 relating to waiver will possibly be dealt with in the same way with the result that the suspect will not understand the full consequences. 2 In addition to this once a suspect has requested legal advice it is most important that any subsequent waiver is not effective unless the previously requested lawyer has had an opportunity to advise fully on the consequences of the later waiver. This will avoid the police arguing that the issue had been already dealt with in any previous consultation. This, the Association believes, is very necessary due to our own experience of UK police persuading clients to waive their right to legal advice previously requested, the police citing often bogus reasons for doing so such as the alleged delay in the lawyer attending the police station. This has been the subject of research Do you think that the provisions set out in Article 11(2) regarding the rights that a person who is subject to a European Arrest Warrant has in respect of access to a lawyer in the executing State are both fair to that person and workable in practice? Answer: The Association very much welcomes the proposed right to access to a lawyer for persons subject an EAW. However this valuable right is meaningless without a right to challenge the procedure as judicial safeguards in the UK are far behind other countries (such as Germany) in our approach to the EAW. Although not the subject of this consultation it is essential that our law is changed to enable British courts to hear prima facie evidence of the alleged offence and for the EAW to be challenged on that basis before the UK courts. People should not be extradited under the EAW on the basis of no or insubstantial evidence. The judges have much more limited discretion than was the case prior to the introduction of the EAW. Legal aid is also essential. 13. Do you think that it is necessary to ensure that a person who is subject to a European Arrest Warrant should upon request have the right to access a lawyer in the issuing State? What are the practical implications of that proposal? Answer: The Association supports this right as co-operation between lawyers of the issuing and executing state may be able to assist each other in ascertaining that the legal proprieties and procedures have been observed and also to some extent assist in testing whether there is a prima facie case. It is essential however that all states provide list of appropriate lawyers in other member countries and adequate translation facilities supported by easily accessible legal aid preferably not means tested. 14. What impact do you think that the Directive would have on the provision of legal aid? 2 Both the National Audit Office (2009) and the Public Accounts Committee (2010) raised concerns about the low take up of legal advice, which was estimated to be around half of suspects in police stations. 3 Access to Criminal defence services. A report by Dr Vicky Kemp. Legal Services Research Centre September Potential barriers to legal advice. 1.3.b. Delays at the police station. 6

7 Answer: Legal aid is an essential adjunct to the right to access to a lawyer for a suspect in custody. Without legal aid the right is meaningless. The Association cannot but note the irony of the UK position on legal aid that this draft directive exposes. At a time when the rest of Europe marches towards a civilised approach to the rights of the suspect to have legal advice in custody, the UK government reserves powers to restrict legal aid for suspects and thus potentially marches in the opposite direction. Presently before Parliament the Legal Aid, Sentencing and Punishment of Offenders Bill 4 there is a reserved power for the Government appointed Director to introduce both an interest of Justice test and a financial assessment. It is thought that the very fact of a person s liberty being removed during what may be many hours in police custody was a sufficiently significant event to automatically qualify a person for legal aid. The proposal to introduce a means test for a distressed suspect in custody is wrong for two reasons. Firstly it would be impractical to carry out a means test as the suspect will not be able to prove his means or lack thereof. (Especially at 3 am!). The second reason being that, (as the directive makes clear), the right to access to a lawyer is important when someone is in custody and the imposition of a means test substantially undermines that right. It cannot fail to operate as a deterrent. A frightened person in custody, already subject to huge psychological pressure should not have to consider the issue of payment for legal advice. It is a shameful provision. Although the Directive may result in a slight rise in legal aid expenditure this will be more than offset by the substantial financial savings that more early intervention by defence lawyers will bring. Here are the views of one researcher: The early involvement of legal advisers, therefore, could lead to cost-savings if weak cases are effectively challenged in the police station rather than at court. On the other hand, if legal advisers are not involved in the police station and cases are prosecuted, these can become both time-consuming and expensive if the evidence is challenged in court, particularly if it proceeds to trial. Such challenges by the defence at court can also be made on the basis that the prosecution have failed to adhere to procedural requirements What should the remedy be where a person s right of access to a lawyer has been breached? Answer: The Association agrees with the remedies proposed in article 13 but would suggest that there should be a rebuttable presumption of prejudice to the suspect to avoid the erosion of such rights over time and therefore evidence obtained in breach of the directive provisions should only be admissible if the prosecution could no prejudice thereby to the defendant. 16. Are there any other issues that we need to be aware of? 4 Clause Potential barriers to legal advice. 1.3.a. Understanding legal rights and the criminal law. Access to Criminal defence services. A report by Dr Vicky Kemp. Legal Services Research Centre September

8 Answer: a) The physical layout of many UK custody suites militate against access to lawyers. Some custody suites contain lawyers in locked areas which restrict communication with the client and the police as well as providing a serious health and safety risk from assault and fire. This will be increasing relevant if the UK relies upon defence lawyers to inspect the condition of the custody area where suspects are detained in accordance with the proposed article 4 (4). b) In some custody areas the telephone communication facilities are very poor either because they are not confidential or because the use of intercoms make the conversations mutually inaudible. 17. Do you think that the UK should participate (opt in) to this Directive? Answer: Yes. The UK has a proud tradition of equality before the law. It has traditionally been a beacon of justice before the whole world. Our legal system is one of the main aspects of civilised life that attracts people and investors to our country. The Association strongly feels that the UK should opt in and participate in this directive. We do not think it too narrow a viewpoint to say that surely our present system of dealing with suspects has been in part inspirational in the formulation of this directive. This Association is proud of the UK in putting behind it the appalling miscarriage of justice cases which attracted such notoriety in the past. The Police and Criminal Evidence Act 1984 (despite the odd lacuna in drafting) restored the balance between a state funded investigation and the citizen. An essential part of that re-balancing of power was the introduction of the right to access to a solicitor. This directive will build on that necessary development. To opt out or derogate therefrom to any significant degree would send an appalling message, not only to our own citizens but to the whole world, that the UK was not a country where a fair investigative process and thus trial could be found. This would damage our international reputation to our shame. However and notwithstanding a financial crisis, to attempt to match the best international standards for access to justice without adequate funding will be self defeating. There are on occasions some parts of our sociological structure which we cannot afford to neglect even at some cost. Surely this must include the right for all of us and our families to have substantially unfettered access to lawyers when alone and in custody for many hours possibly for an offence we did not commit? 8