European Commission Study on Cross Border Legal Aid Project JLS/2008/E4/009. Final Report

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1 European Commission Study on Cross Border Legal Aid Project JLS/2008/E4/009 Final Report

2 Final Report Contents Executive summary...2 Introduction...5 Methodology of Study...6 The issues...8 Conclusions of consultation...14 Proposals for a pilot project...17 Implementation of pilot project...23 Feasibility and risks...25 Other options which we considered but not approved...26 Annexes Annex 1 - Responses to legal aid questionnaires...28 Annex 2 Lists of participants at meetings in London, Madrid and Vienna

3 Executive summary The CCBE 1 and ECBA 2 (the project partners) were jointly awarded a contract to prepare a study which analyses whether it would be possible to set up a pilot project to facilitate and improve co-operation between defence lawyers working on cross border cases. As matters stand at the moment, there are limited opportunities for defence lawyers to co-operate on a cross border basis, identify colleagues rapidly in other Member States, obtain information relevant to cross border cases, or be trained on mutual recognition instruments or the criminal procedure of other Member States. In stark contrast, such systems exist and have existed for some time, for prosecutors and the judiciary, through, in particular, Eurojust and the European Judicial Training Network. The goal of this study, and of the pilot project which the project partners were asked to design, is to address this inequality of arms. The recommendations for a pilot project contained in this report, if implemented, should facilitate better co-operation between defence lawyers working on cross border cases, and improve their ability effectively to defend their clients. The recommendations involve:- improving access to information for defence lawyers through the creation of a network of contact points and development of resources to support the network, improving networking between defence lawyers, improving access to appropriate training for defence lawyers. The recommendations for a pilot project also include a proposal to use networks for the collection of factual information about the problems which arise in cross border criminal cases. Information collection would focus in particular on funding issues which are central to many of the problems which lawyers face when dealing with cross border criminal cases. We see the ongoing collection of such information as a core part of the pilot project. This information would inform not only the future development of the pilot project but also policy in relation to funding for cross border cases and procedural issues. Process To achieve the project goal, the project partners organised meetings with lawyers from three jurisdictions the UK, Spain and Austria, and circulated questionnaires for completion by 4 further Bars Lithuania, Sweden, the Czech Republic and Hungary. The information obtained through consultation helped the project partners to reach conclusions based on real, practical concerns as expressed by defence practitioners. As a result of the consultation process, the project partners agreed that the pilot project should focus on the following issues: 1 CCBE Council of Bars and Law Societies of Europe 2 ECBA European Criminal Bar Association 2

4 Facilitating the process of finding an appropriately experienced lawyer in another Member State Facilitating networking amongst criminal lawyers Facilitating access to information about criminal procedure in other Member States Providing appropriate training for defence lawyers on criminal procedure issues, and EU criminal law. Collecting evidence of problems in relation to legal aid and the funding of cross border criminal cases Collecting evidence of problems in relation to the conduct of cross border criminal cases How will these results be achieved? Following consultation, the project team concluded that the most efficient, cost effective way to deliver the goals of the pilot project was to build on existing institutions and existing resources. The lawyers who were consulted by the project team were firm in their view that any solution must above all preserve and respect the independence of the legal profession. There was therefore considerable resistance to all proposals which involved the creation of a new organisation or body to represent the interests of defence lawyers. Elements of the proposed pilot project: Participants - The pilot phase of the project would involve 10 Member States, to be selected on the basis of criteria such as their borders with other Member States, their position as an entry point to the EU, and their experience with arrest warrant cases. At least one new Member State would be included. Network - The first phase of the project would involve the creation of a network of contact points in the participating Member States. It is envisaged that in time, there would be a network of contact points throughout each participating Member State. Information - Once the network has been established, it would be used as an emergency source of information by lawyers seeking urgent help about how to find a lawyer in the Member State concerned, or how to contact the relevant authorities dealing with a case. Build contacts - Regular meetings of the network would be held to share experience, expand contacts and plan future phases of the project. Network on-line - On-line professional networking tools would be tested with a view to encouraging lawyers to network and build contacts/exchange non-confidential information on-line Training - The network would gather and feed in information about the needs of defence lawyers to assist with the design of training tools and events. At least one targeted, subsidised event would be delivered in each year of the project. Funding - The network would gather information about the problems being experienced in relation to legal aid and funding issues by defence lawyers working on cross border cases. That information would be compiled centrally and used to inform future policy on funding for such cases Procedural issues - The network would gather information about procedural issues in cross border criminal cases, which again would be collated centrally and used to inform future policy in this area. 3

5 The project team considers that this approach has a number of advantages, namely: the pilot project could begin quickly as it relies on existing resources costs are restricted, again because of the use of existing resources the recommendations retain the independence of the legal profession which is an essential condition for any action in this sphere the proposals allow the pilot project to grow and adapt in accordance with the feedback which is received from defence practitioners. If the pilot project is a success and is ultimately rolled out to all Member States, it will be able easy to take into account lessons learned over the pilot phase the pilot project will be able to collect concrete information about the real issues facing defence practitioners on an on-going basis something which has never been done before. The collection of such information is crucial to the development of policy, particularly in relation to funding Costs and implementation A provisional costing for a three year pilot project is provided. 4

6 Introduction The CCBE 3 and ECBA 4 (the project partners) were jointly awarded a contract to prepare a study which analyses whether it would be possible to set up a pilot project to facilitate and improve co-operation between defence lawyers working on cross border cases. The CCBE represents all of the Bars and Law Societies of Europe and through them, approximately 1 million European lawyers. The ECBA is an independent association of specialist defence lawyers who practise in or have an interest in European criminal law. Its membership covers 35 Member States of the Council of Europe. Both organisations are members of the Commission s Justice Forum. The proposition that a pilot project should be created arises out of an awareness at European level that co-operation between investigating and prosecuting authorities has been greatly enhanced by the creation of the European Judicial Network and Eurojust. However no such formalised means of co-operation exists for defence lawyers and there is concern that this leads to an inequality of arms. The Commission Communication on Mutual Recognition of Final Decisions in Criminal Matters stated that 'it must...be ensured that the treatment of suspects and the rights of the defence would not only not suffer from the implementation of the principle of mutual recognition but that the safeguards would even be improved through the process. 5 As matters stand at the moment, there is little consistency throughout the EU in relation to defence rights and no formalised way for defence lawyers to co-operate on a cross border basis, obtain information or be trained on mutual recognition instruments or the criminal procedure of other Member States. In stark contrast, such systems exist and have existed for a long time, for prosecutors and the judiciary, through, in particular, Eurojust and the European Judicial Training Network. The recommendations for a pilot project contained in this report, if implemented should facilitate better co-operation between defence lawyers working on cross border cases, and improve their ability effectively to defend their clients through better access to information. The recommendations involve improving access to information for defence lawyers through the creation of a network of contact points, improving networking between defence lawyers and improving access to appropriate training for defence lawyers. As such, the recommendations comply with the requirements of the Terms of Reference for the project. However, funding or legal aid for a person who cannot fund his or her own defence is also a crucial issue and we would have preferred that the Terms of Reference for this project had focussed more on legal aid in line with the title of the project. Despite the emphasis on networking in the Terms of Reference, we believe that this pilot project can also support the goal of improving access to funding, particularly in cross border cases through the collection of empirical evidence. Such evidence could support arguments for further action on funding for cross border cases and in particular for a double defence. 5 3 CCBE Council of Bars and Law Societies of Europe 4 ECBA European Criminal Bar Association 5 Commission Communication on mutual recognition of judicial decisions in criminal matters and the strengthening of mutual trust between Member States 2005

7 Methodology As soon as the award of the contract was announced, a Steering Committee was appointed to run the project. The Steering Committee comprised two representatives of the CCBE, two representatives of the ECBA and the project manager. The Steering Committee met on a number of occasions and held further discussions by conference call to establish the methodology for the project, the agenda for the meetings with Bars and practitioners and ways of widening the reach of the project and thus, the value of the information obtained. Phase 1 Meetings with Bars Phase 1 of the project involved canvassing the views of defence practitioners who are active in cross border defence work. Meetings were held with up to 20 practitioners on each occasion in London, Madrid and Vienna. Dates and attendance lists for each meeting can be found at Annex 2. An agenda for the meetings in the form of a questionnaire was circulated in advance to all participants, in order to ensure that they were fully aware of the purpose of the Commission project and the issues which needed to be covered at the meetings. The meetings were conducted in such a way as to ensure that all participants had the opportunity to raise their concerns about the conduct of cross border criminal cases and to share their experiences with the Steering Committee. At all the meetings, there was a very full, honest and open exchange of information and opinions. This was invaluable in assisting the Steering Committee to form a view about the priority issues which the project should address. Phase 2 Questionnaires To supplement the information obtained in meetings with Bars, and to obtain a wider spread of information, particularly covering new Member States, a written questionnaire was sent to the Bars of Hungary, the Czech Republic, Lithuania and Sweden. The written questionnaire covered the same ground as the agenda for the meetings with practitioners in the UK, Spain and Austria. Respondents were asked to rate a number of issues in order of seriousness and to provide practical examples of the kinds of problems which they have experienced in cross border cases. They were also invited to suggest possible solutions to the problems which they currently face. The Bars provided very helpful responses and their input reflected the same concerns as were expressed at the meetings held in London, Madrid and Vienna. 6

8 Phase 3 - Analysis of the information obtained Following the conclusion of the meetings with Bars and the receipt of completed questionnaires, the Steering Committee began to analyse the information obtained and to discuss possible options for pilot projects. Phase 4 Further meeting with Bar and practitioner representatives A meeting was held on 7 October in Brussels to discuss the Steering Committee's proposals for a pilot project with representatives of the three Bars which were visited as part of the project. Bar and practitioner representatives from each of the three countries participated in the meeting. The meeting enabled the Steering Committee to assess the viability of its proposals and to determine the level of support which the proposals had amongst Bars. Phase 5 Final Report The Final Report has been considered in detail by the Steering Committee. 7

9 The issues Discussions at meetings and analysis of written responses to questionnaires led us to conclude that there are 5 key issues for defence lawyers working on cross border cases: These issues are as follows: Finding a lawyer in another Member State quickly Funding and legal aid Protecting the procedural rights of the suspect or accused person Obtaining information about criminal procedure in other Member States Improving knowledge through training and education 'Cross border criminal cases' When we refer to a 'cross border criminal case' in this report, we do so in the broadest sense, meaning any case which has a cross border element. The Commission's tender document talks about European Arrest Warrant cases and cases which fall within the 2000 Mutual Legal Assistance Convention. In all of our consultations with lawyers, it was made very clear to us that such cases represent only a very small fraction of the 'cross border criminal cases' which lawyers are faced with today. The vast majority of cases arise out of the free movement of persons provisions and the typical 'cross border case' which a lawyer sees today involves eg. a lorry driver who is arrested in another Member State as a result of a traffic accident; a crime involving a migrant worker who is working in a Member State of which he is not a national; a crime involving an immigrant to the EU; a complex financial crime where the evidence is in one country and the suspect or accused person is in another; or, increasingly, a crime which involves a number of Member States and where the most favourable jurisdiction has been selected as the country of prosecution. Cases involving non-nationals or involving a crime which took place elsewhere or evidence which is located elsewhere in the EU are growing in number and are increasingly impacting on the daily work of defence practitioners. We believe that any steps which are taken to assist defence lawyers must cover this broad definition of a cross border criminal case. Finding a lawyer in another Member State quickly In our meetings and in the responses to questionnaires, the practical issue of how to find a lawyer in another Member State was raised again and again. The very first step that a defence lawyer needs to take in most cross border cases is to contact a lawyer from the other Member State or States concerned. That needs to be done very rapidly, particularly in EAW cases and in cases where a person has been deprived of his or her liberty and is in the custody of the police or the court. It is crucial to the proper conduct of the case that the lawyer can quickly seek advice and assistance from a lawyer in the other Member State(s) concerned in the case in order to protect the rights of the person concerned. When defence lawyers need to find a colleague to work on a case in their home Member State, they rely almost entirely on personal contacts and networks. Lists of lawyers exist in various formats and are available from a number of sources, including embassies. Directories of lawyers are also being made available through the e-justice portal, through PenalNet, and the CCBE s Find a Lawyer scheme. The 8

10 ECBA also maintains a trusted list of its members. However, practitioners informed us that they are prefer to use personal contacts, and lawyers told us that lists and directories can be out of date and generally contain no or limited information about the experience of the lawyers concerned. Lists are a starting point only when personal networks cannot be called upon andlists will never provide a complete solution for lawyers seeking to contact a colleague in another Member State, where the need is urgent. Personal contact is viewed by practitioners as the only way to find the right person for the problem at hand. Lawyers repeatedly stressed to us the need to be able to trust a lawyer in another Member State and to know that the lawyer has experience relevant to the case in question. At present criminal lawyers who are active in cross border criminal cases network through organisations such as the ECBA, through local associations of defence lawyers, and through training events both locally and in other Member States. However this is not enough. Lawyers are seeing more and more criminal cases with a cross border element and are conscious that they need to build their own networks around the EU and particularly with the countries on their own borders. In certain countries, lawyers told us that they feel increasingly challenged by cross border cases, because of their geographical location at the border of Europe, or because their country borders a new Member State. They stressed the difficulty of finding lawyers with whom they could work effectively. Countries which are an entry point to the European Union have particular problems and are increasingly faced with cases with a cross border element. Faced with growing problems of this sort, defence lawyers recognise that they need to educate themselves in more detail about EU criminal law, about the criminal procedures of other Member States and most importantly, to build their own reliable networks of lawyers around the EU. Language is another problem which has been raised in relation to networking. Lawyers need to be able to communicate with each other in order to defend the client effectively. Lawyers told us that they would welcome language training, geared specifically towards criminal defence practitioners. Lawyers would welcome the provision of such training locally, or by distance learning methods. Funding and legal aid This issue underlies all the other issues which defence lawyers face in cross border cases. If there is no funding for the lawyer's services and/or no funding for a double defence (i.e. representation by lawyers from both countries involved in the case), then there is a fundamental problem which goes to the heart of the human rights of the suspect or the accused person. If legal aid provision is inadequate then in the majority of cases, the protection of the rights of the suspect or accused will be inadequate as he or she may not be represented at all, may receive an incomplete defence, or may be represented only at a very late stage in the proceedings. Whilst networking and the ability to find a lawyer in another Member State is the main practical problem facing a lawyer instructed in a cross border case, if the suspect or accused person cannot obtain funding for the work of the lawyer or for the lawyer to seek assistance in the other Member State involved in the case, then this practical issue becomes in reality, irrelevant. The situation with regard to legal aid varies enormously from Member State to Member State in cross border cases. We have obtained information about the situation in 6 Member States and that information can be found at Appendix 1 9

11 In summary, in the Member States for which we have information, there is no difference between the treatment of nationals and non-nationals in their entitlement to legal aid. However, the extent of that legal aid, when representation commences, who provides that representation, how it is funded and how and to what extent the lawyer concerned is funded vary enormously. See Appendix 1 for details. In addition, it is almost universally the case that legal aid will not fund a double defence in a cross border case and in most countries which we surveyed, it will not cover consultation of any sort with a lawyer in the other Member State concerned. Collection of evidence in another Member State is largely not covered, nor is there provision for obtaining expert evidence from the other Member State concerned. Of the countries which we surveyed, the exception seems to be the UK, where in some cases, legal aid for the gathering of evidence, advice from a lawyer in another Member State, or the costs of obtaining expert evidence may potentially be covered if the interests of justice require it. In some of the countries which we surveyed, all lawyers are required to participate in the legal aid scheme, regardless of their regular area of practice. Remuneration can be very low and in some countries, only a very small amount is paid to the lawyer. In others the lawyers receive no payment at all. If inequality of arms between prosecution and defence is to be addressed, then funding issues must be high on the agenda. The right to have advice from a lawyer at the earliest possible stage in proceedings is fundamental, in order to ensure that both the procedural rights and the human rights of the suspect or accused are protected. In European Arrest Warrant cases, this issue is of particular concern. Lawyers told us that because of the speed of the process and because it is largely an administrative procedure, it is very difficult to influence effectively. If legal aid is not available for the initial stages of the process this creates problems in relation to knowing the facts upon which the request for a warrant was based. We heard many examples of problems arising out of the lack of legal aid. For example, in a case where an accused person from Member State A was being returned to Member State B under the EAW procedure, legal aid was only available for the work of the lawyer in Member State A no legal aid would be available for any advice from a lawyer in Member State B if there was a problem with the case. In such cases, lawyers in Member State A would 'call in favours' from contacts. In a similar case where the client could afford to pay for his or her own defence, the lawyer in Member State A would be able to prepare the case fully by seeking advice on difficult issues from a lawyer in Member State B. It is iniquitous that a different standard of justice should be available to those who can afford to fund their own defence. We would argue that particularly in EAW cases, it is vital that the legal aid system should cover the obtaining of advice from a lawyer in the other Member State concerned, where the interests of justice demand such advice. The procedural rights of the suspect or accused Funding and the protection of procedural rights are inextricably linked. A defence lawyer who has contact with a suspect or accused person at an early stage in the proceedings and who has the time, the funding and the freedom to work with the client is the most important protection for the procedural rights of the suspect or accused. Lawyers from the 7 countries who participated in our work, pointed to problems in relation to procedural rights in the context of cross border cases. Of particular concern is the problem of accessing the file on the case/ obtaining sufficient information about the case at the earliest possible stage in the proceedings. In a case where the suspect or the accused is a national of Member State A and is arrested 10

12 in Member State B, it is problematic for a lawyer in Member State A, who has been contacted by the suspect or the accused, to obtain any information at all about the case. In such a case, the lawyer must rely on being able to contact and communicate with a lawyer in Member State B. However if there is no funding for the services of one or other of the lawyers, then this process will be difficult. There are inconsistencies between Member States in the approaches which they take in relation to disclosure of the case file. We were told of a case where a lawyer in Member State A needed information about a case involving a national of Member State B. The lawyer was not able to obtain the information which was required from the authorities in Member State A, but was able to obtain it from the authorities of Member State B, via a lawyer in that country. Inequalities such as this make the work of the defence doubly difficult and prejudice the situation of the client. It is iniquitous that such situations can arise and they create inequalities between citizens of different Member States. Access to the file is not the only procedural problem which arises for a suspect or accused person in a cross border case. Linguistic issues are problematic too and again, approaches to the provision of interpretation and translation vary from Member State to Member State. It is clear to us from the responses that we received that the quality of interpretation and translation, and what is actually translated varies between Member States. In all the countries who participated in our work, there is a right to interpretation and translation and the costs of that are met by the state. However, we were told often that the quality of translation at the police station can be poor and that it can take a great deal of time for interpreters to arrive. We were also told often that it is rare for the charges to be properly translated for the accused, and that when proceedings reach the court stage, rare that the entire case file would be translated. Furthermore, we were told that in many countries, it is rare for the state to pay for translation of confidential communications between lawyer and client which are subject to privilege. This prejudices the accused's defence and is a crucial issue in cross border cases. In complex cases where the accused can afford to fund his or her own defence, it is common for the defence to obtain their own translators and interpreters in the interests of quality. Again, this highlights the difference in the level of justice which is available to rich and poor in cross border criminal cases. Obtaining information about criminal procedure in other Member States In an ideal world, a defence lawyer working on a cross border case will be able to contact a colleague whom he knows to have the correct experience to be able to help with the case at hand. He will be funded to seek that advice. However in today's world, that will rarely be the case. Lawyers have stressed to us that in the absence of such systems, they need themselves to be able to identify the basic rules of criminal procedure which apply to the situation of their client in another Member State. Often the information that they need is not just about technical rules of criminal procedure. Lawyers told us that where an accused is in custody in another EU Member State, they need to know very quickly about the rights that the accused has in relation eg to have contact with family, telephone calls, how long he or she can be held, who can have access to the client, what the charges are etc. These are often the most pressing issues when the lawyer is first notified that a person is in custody in another Member State. The lawyer is the primary source of information for the family of the person concerned. 11

13 This information is available, but it is not easy to find or access and it is not available in all languages of the EU. Projects currently underway in the context of the e-justice programme will go some way to assisting in as much as factsheets are to be prepared to address some of these issues. The PenalNet project also hopes to address this issue. However it would make the job of the defence lawyer significantly easier if more detailed information, aimed specifically at lawyers and available in all EU languages were available on the e-justice portal. The website of the European Judicial Network in Civil and Commercial Matters 6 provides quite detailed information about a range of aspects of civil law in all EU languages and criminal lawyers would welcome the same facility in relation to criminal procedure. Given that liberty is often at stake it is crucially important that defence lawyers can access information about criminal procedure in other Member States quickly and in their own language. Improving knowledge through training and education Lawyers undertake continuing education throughout their professional lives, and increasingly such education is compulsory in order to be able to continue to practise. It is clear that the law changes frequently and that it is a professional requirement to keep knowledge up-to-date. Some Bar Associations, Law Societies and training providers offer training on EU mutual recognition provisions, criminal law in the EU and other relevant issues. However lawyers told us that there is not enough training available on cross border criminal cases. Lawyers would like to be able to access more training about the particularities of cross border cases, about criminal procedure in other Member States, about developments in EU criminal law, developments in relation to Mutual Recognition in the EU, relevant decisions of the European Court of Justice and the European Court of Human Rights. However lawyers point out that no matter how much they would like to participate in training, there are a number of practical constraints to them doing so. Lawyers want to learn more about how to work effectively in cross border cases but if they have to take time away from their business and pay to travel etc to participate in such events, the number of events in which they can participate will be limited. What is needed is a new approach to training and networking. Lawyers would welcome training provided over the internet, by podcast or webcast, through social networking sites, or by the provision of materials to their local Bar Association or Law Society which can be used to provide training close to home. In that way they can expand their knowledge at their own pace and at a time which suits them, without spending significant sums of money on the process, or losing income. Such solutions do not currently exist and defence lawyers have expressed a real need for and desire to benefit from such training vehicles. Other issues identified by the Commission in the tender document. Exchange of information and documents between lawyers Based on our findings at the meetings and the input given to us, our conclusion to date is that this issue is not a priority for the pilot project

14 Issues of confidential exchange of information between lawyers are being addressed through the PenalNet project..this ambitious project is providing a secure means of communication between criminal lawyers who register to participate in the scheme. Documents may be exchanged by electronic means and the scheme will be rolled out to all 27 Member States in the future. This pilot project can however, and should address the need that defence lawyers have to be able to share experiences, and non-confidential information about how their local legal system operates in practice, contacts, etc. Quality control of legal advice All lawyers who are qualified to practice are competent to do so. It is neither appropriate or necessary for us to address this issue as questions of competence are for national Bars and Law Societies to regulate. This project can, however provide training and other learning opportunities for lawyers. Lawyers are competent to operate within their own legal system but can benefit from broadening their knowledge of the criminal procedural law of other Member States and reinforcing their knowledge of EU criminal law provisions. This will enable them to work more effectively with their colleagues in cross border criminal cases. 13

15 Conclusions of consultation In the terms of reference for the pilot project, we are asked to make recommendations for the establishment of a scheme which would assist defence lawyers working on cross border cases to cooperate better and to facilitate better exchange of information in cases involving mutual recognition instruments and the 2000 MLA Convention. We are concerned that the pilot project does not call for us to make recommendations in relation to minimum standards of legal aid, beyond to say that we may consider this aspect in making our recommendations. We and the lawyers whom we have consulted regard funding as the most fundamental challenge which is faced today in terms of securing a proper defence for an accused person and in terms of ensuring equality of arms. We recommend that legal aid should form part of the pilot project and we set out below how that can be achieved. Similar considerations apply to minimum procedural safeguards. We note that this is issue is a high priority for the current Swedish Presidency and we hope that agreement can be reached on this important issue in order to ensure that the same minimum protections are in place for suspects or accused persons around the European Union. With these comments in mind, we recommend the following as the priority areas for action in this pilot project:- Priority areas for action Facilitating the process of finding an appropriately experienced lawyer in another Member State Facilitating networking amongst criminal lawyers Facilitating access to information about criminal procedure in other Member States Providing appropriate training for defence lawyers on criminal procedure issues, EU criminal law and language training for lawyers. Collecting evidence of problems in relation to legal aid in cross border criminal cases Collecting evidence of problems in relation to the conduct of cross border criminal cases Reasoning Finding a lawyer As is explained above, defence lawyers told us that after funding (which is the determining issue in whether the suspect or accused person has a lawyer to represent him or her at all) the main issue that they have in dealing with cross border criminal cases is finding an appropriately experienced lawyer in the other Member State involved in the case. The CCBE, through the Bar Associations and Law Societies is well placed to co-ordinate existing material about the experience, physical location and language skills of lawyers who are experienced in handling cases with a cross border element and to provide a first port of call for a lawyer who needs to find another lawyer urgently in order to be able to effectively defend the client. The ECBA also has access to such information through its membership of individual defence lawyers. 14

16 Facilitating networking Lawyers told us that they want to build their own networks of contacts around the EU. They want to be able to contact someone whom they know and trust when faced with a difficult case. They want to be able to refer their contacts to appropriate people in their own Member States where required. A very high premium is placed on personal contacts. Lawyers are willing to devote more time to this and are looking for ways to build their networks. Innovative solutions which are not too time consuming are required and we believe that there is a role for solutions such as on-line networking to meet those needs. Facilitating access to information about criminal procedure around the EU Lawyers cannot effectively defend their clients' interests unless they have some idea of the rules of criminal procedure of the other Member State involved in the case. Work is going on in the context of the e-justice programme to prepare factsheets which will make information available to suspects or accused persons who are arrested/detained in another Member State. This information will be a good starting point for lawyers too. However, access to more detailed information is required to support the work of defence lawyers in the longer term. In addition, the PenalNet project will make available information about criminal procedure to those who join the scheme. It is clear that not all criminal lawyers will take up the opportunity to use the services available through the PenalNet scheme and as a result, more general access to such information is required, particularly for lawyers who are involved in cross border cases on a more occasional basis. We believe that it is important that this pilot project works on this issue. Making the information available on Bar Association or Law Society web sites in the local language and in English may be a good starting point and the pilot project can assess the feasibility of this. Much of this information may already be available as links which can be easily added to a dedicated space on Bar Association web sites, on the ECBA website, a dedicated internet group for criminal lawyers and/or on the CCBE web site. However a long term goal should be to include information specifically designed for criminal lawyers on the e-justice portal, prepared to a standard format and translated into all the languages of the EU. The pilot project should gather such information as is available and make it more accessible in the meantime. Providing appropriate training Training not only strengthens knowledge, but also facilitates networking and the building of a personal database of contacts. Currently, limited opportunities exist for criminal lawyers to participate in events tailored to their needs. Two problems need to be addressed. Firstly, more events need to take place and in a more flexible manner, in order that more lawyers can access the kind of specific training that they need. Secondly, funding needs to be made available so that lawyers with limited incomes and particularly, lawyers from the new Member States can afford to participate. Not only do they have to meet the costs of participation, but they also lose money by participating because they are not available for work. The pilot project could address these issues by working with existing training providers to design training which is more suited to the needs of criminal lawyers working on cross border cases and more readily available to them. 15

17 Collecting evidence about funding problems As stated earlier in this report, we believe that this issue is the most important issue faced in cross border criminal cases. This is the issue which determines how much advice the suspect or accused person will receive in the course of the proceedings against him or her and the fairness of the trial. The defence of the accused person may rely on the goodwill of a criminal defence lawyer working for free. That situation should not continue. One of the issues which prevents action on legal aid is lack of information about the extent of the problem. Given the unique access to experienced practitioners which the CCBE has through Bars and Law Societies and which the ECBA has through its membership, we believe that it would be a useful contribution to the debate, were the pilot project to collect real evidence of the problems which arise due to the lack of availability of any or adequate legal aid for the defence of the accused person. That information would be compiled and would inform thinking on this issue, and, hopefully, provoke action in the future. Collecting evidence about procedural problems in relation to cross border criminal cases Again, using our privileged access to practitioners, we propose that the pilot project should collect evidence of the procedural problems which occur on a day-to-day basis in cross border criminal cases. Such information would inform future action, but also would enable decisions to be made about how the pilot project should develop after its initial term. Over time, it will help to measure the effectiveness of the pilot project and any project which follows on from this one. 16

18 Proposals for a pilot project In reaching a conclusion about the nature of the pilot project which we should propose, we considered three options. Our favoured option is presented first and the other options which were considered are described later in this section of the report Recommendation for a pilot project - Build on existing resources to deliver the services which defence lawyers need Description of pilot project This pilot project addresses :- The need to provide a resource for defence lawyers to enable them to obtain reliable help and information quickly when they are involved in a cross border case. The need to raise awareness amongst defence lawyers of the resources which currently exist and of issues which commonly arise in cross border cases The need to improve knowledge amongst defence lawyers, both of EU criminal law and of the criminal procedure of other Member States. The need to gather information about issues particular to cross border cases, particularly funding issues Who will deliver the project? Existing organisations such as the CCBE and the ECBA have structures in place which could be built upon to support criminal defence lawyers working on cross border cases and, most importantly, which are trusted by criminal defence lawyers. Which Member States will be involved in the pilot phase? - This pilot project is designed to be the first phase of a long-term project which would gradually extend the support which it offers to all defence lawyers working on cross border cases. The approach is to build a range of services and resources over time as knowledge of the problems encountered on a day-to-day basis by defence lawyers working on cross border cases grows and develops. It is proposed that the project should work in 10 Member States initially. The 10 Member States should be selected on the basis of their level of exposure to cross border criminal cases, and EAW cases in particular. The 10 countries selected to participate in the pilot project should include: at least one new Member State Member States which have more than one border with another Member State Member States which are recognised as first points of entry to the EU At the end of the pilot phase, the project could be rolled out to all 27 Member States. 17

19 We have chosen this approach because it will mean that the project can begin quickly, with limited setup costs. We also believe that it is more effective to use the pilot project to collect more detailed information about what lawyers need and to test the mechanisms for delivery of the support, before rolling it out to all 27 Member States which would be costly and difficult to manage in the early stages. Organisation of the pilot project Management and administration The project should be managed by a Steering Committee of defence lawyers. The Steering Committee will be responsible for making all policy decisions about the project and for ensuring that the project goals are met. The representatives should have significant experience of cross border criminal cases and they will bring their experience to bear in ensuring that the steps taken as part of the project truly address the needs of practitioners. The pilot project should be managed on a day-to-day basis by an experienced project manager who should be recruited specifically for the purpose. The project manager should also have a background in criminal law. Administrative support would be provided by the organisations concerned. Objective 1 - Provide an 'emergency' resource for defence lawyers Lawyers told us repeatedly that the most important thing for them when faced with a cross border criminal case was to be able to quickly find an experienced practitioner in the other Member State (or States) concerned. We believe that the first step for the pilot project is to establish a network of contact points in the Member States which participate. We see this network of contact points as crucial to the operation of the project in its entirety. In the first instance, contact details for the network should be made available on existing web sites which are habitually consulted by defence lawyers, such as those of the CCBE, ECBA and Bars and Law Societies, which are habitually consulted by lawyers. Names, phone numbers, addresses and language capability should be provided. Defence practitioners who are faced with an urgent situation where they need help would be able to use this network to obtain rapid help with basic advice about how to find a lawyer, how to contact officials involved in the case, very basic advice about procedural steps which will be taken etc. This role would not be one of giving legal advice or taking the place of the lawyer who ultimately works on the case. Rather it would be an emergency first port of call for guidance on what steps to take rather than the provision of actual legal advice. Contact points would not make referrals to local lawyers, but would advise on how to find a local lawyer with appropriate experience, using existing resources. Over the life of the pilot project, new, comprehensive resources may be developed to assist the network of contact points and current or planned projects such as search engines for finding lawyers through the e-justice portal can be used., 18

20 It is impossible at this stage to know what sort of burden this would place on the network and it is also impossible to know how exactly the network will be used. It will be part of the pilot project to assess the effectiveness of this solution and to consider whether there are other alternatives. Contact points would meet twice per year to share experiences and to participate in discussions about development of the project. In this way, the experiences of defence lawyers will shape the future of the project. Contact points will also grow their own networks through this process. It is conceivable that in time, quite substantial networks of lawyers could be established as part of the project, thus increasing the value of the network. Objective 2 Raise awareness amongst defence lawyers of the resources which currently exist and of common issues in cross border cases. The 'network' will be well-placed to use local resources to spread information and knowledge to local defence lawyers. The 'network' would work with the Steering Committee and the co-ordinator to ensure that relevant information is made available in the most appropriate way. The 'network', since it comprises local practising lawyers, will be able to use all the resources which are available in the country such as Bar Associations, Law Societies and Criminal Bar Associations where these exist, legal publications and web sites. In the first instance, information would be disseminated about the 'networks' and their contact details. Existing information about criminal procedural law would be collected and disseminated through the resources available to the project. The 'networks' themselves would identify the best way to make sure that that information is disseminated as widely as possible and in the most effective way in their own Member State. Using existing resources has huge advantages in as much as the organisations concerned are already habitually consulted and trusted by lawyers. They are automatic current sources of information and are available to all lawyers. Using existing resources means that there is no need to build awareness of new websites or publications, or to incur costs on a speculative basis. Objective 3 Improve the knowledge of defence lawyers about cross border criminal cases One of the roles of the 'network' would be to keep a record of the nature of the requests for assistance that they receive and the problems in the handling of cross border cases which are regularly raised. They will be able to assess where the major difficulties lie and what questions are regularly being asked by lawyers. The information collected as part of the pilot project, would be used to build a picture of training needs and to identify ways to address those needs. Once such a picture has been built, we believe that the pilot project should work with an appropriate training provider such as ERA to deliver a 'test' training event towards the end of the first year of the project, once information has been collected to assist with design of the event. The event should be rerun in its original or an improved format in subsequent years of the project. We believe that attendance at the event should be subsidised to allow those who are most in need of such training (those who cannot normally afford to attend such events, those from new Member States etc) to participate. 19

21 Running test events would allow an assessment of reactions, attendance levels, actual need, etc. As a result, recommendations would be made for a training component in the next phase of the project when all 27 Member States are involved. The pilot project would also identify means of building broader networks of defence lawyers around Europe and of using those tools to disseminate training etc. For example, professional networking sites may have a role to play in providing a forum for lawyers to share experience and to network on line with other interested colleagues and build relationships. Such sites also offer a means of disseminating training and using technology to share presentations, podcasts etc. The pilot project would establish and test such internet-based options and encourage lawyers from the initial 10 participating Member States to join and test their effectiveness as networking and training tools. 20

22 Objective 4 gathering information about funding and procedural problems At present, very little concrete information exists about how cross border cases are funded or about the practical issues which arise regularly and cause problems in such cases. As such cases become more common it is important that such information is gathered systematically in order to inform future policy. There have been projects in the past which collect such information at a particular moment in time, such as the ECBA European Arrest Warrant project. However the normal situation is that such projects come to an end and the useful information which is collected is not updated. There is a current unmet need for the ongoing collection and updating of information to inform debate and to ensure that problems can be properly addressed. We believe that this project provides a unique opportunity to collect information systematically about issues in cross border cases, and to do so on and on-going basis. Information should be collected about two fundamental issues funding and procedural problems. Working through the 'networks' the pilot project should systematically gather information about cross border criminal cases. A particular focus should be EAW cases and issues around the need for a doubledefence. However all types of criminal cases with a cross border element should be covered. As we have highlighted elsewhere in this report, funding is a core problem in cross border cases, with problems, in particular, in relation to securing funding for legal advice from a lawyer in the other Member State or States concerned. To date, there is little collated information about real cases. This project should collect and make available such information. We see the collection and presentation of such hard information about injustice and lack of equality of arms as a core aim of this pilot project. Not only will the collection of such information inform the debate at European level, it will also enable us to determine where efforts should be directed when the pilot phase of this project comes to an end. Timescales We believe that it is appropriate that the pilot phase of the project should last for three years, to ensure that sufficient experience is obtained to facilitate a proper analysis of the outcomes of the pilot and to make recommendations about the future of the project and how it can most effectively be rolled out to all 27 Member States. In the third year of the project, detailed proposals would be drawn up for the next phase of the project. Projected outcomes of the pilot project 21 No co-ordinated support currently exists for defence lawyers working on cross border criminal cases. As a result of the pilot project, significant progress will be made towards supporting the work of such lawyers and defining more clearly what needs to be done in the future to ensure comprehensive and meaningful on-going support for their work. In particular, the following measurable outcomes would be achieved:- A functioning support network of defence lawyers in 10 Member States, working to assist and

23 share experience with colleagues from their own and other Member States A clear understanding of the needs of defence lawyers working on cross border cases, of the scale of those needs and of how those needs can be effectively met. Expanded networks of criminal lawyers working on cross border criminal cases, with easier access to the right practitioner at the right time in 10 Member States Improved access to knowledge about procedural issues in other Member States, through the resources of the networks and improved dissemination of information A better understanding of the training needs of criminal defence lawyers working on cross border cases, and effective training provided to a number of lawyers from 10 Member States. A dossier of information about problems in relation to the funding of cross border criminal cases and the problems created by lack of funding A dossier of details of procedural problems in cross border cases, which can be used to inform future policy decisions Proposals for both policy-related and practical solutions to those problems 22

24 Implementation of pilot project If our proposal for a pilot project is approved by the Commission, we suggest the following scheme for its implementation. Phase 1 Phase 1 (months 1-3) of the project will involve the following:- appointment of the Steering Committee recruitment of the project co-ordinator nomination of contact points in 10 Member States meeting of contact points to discuss role, network share information, establish basis for information to be collected. Phase 2 Phase 2 ( months 4-6) Co-ordinator and contact points share existing information about practitioners, experience etc, Information added to websites of existing organisations of interest to defence lawyers. Co-ordinator and contact points publicise their contact details on all appropriate websites and arrange dissemination of the information in their home Member States emphasising that this is in effect a collection of 'emergency helplines' Co-ordinator sets up online networking group and circulates information to contact points for onward transmission as appropriate in their home Member State Online networking group begins to be used for networking, sharing info/etc. Co-ordinator collects details of relevant existing events and relevant existing information which might be of assistance to defence lawyers and publicises through appropriate means. Steering Committee develops policy on information on funding and procedural issues which is to be collected from contact points, how it is to be supplied, how it will be collated. Phase 3 (Months 7-9) Co-ordinator begins to receive and compile information about how the network is being used Co-ordinator begins to analyse information being submitted about problems in cases, Co-ordinator begins to talk to external training organisations about possibilities for designing courses to target needs of defence lawyers working on cross border cases 23 Phase 4 Months Co-ordinator and national contact points begin to share information on cross border legal aid Co-ordinator and national contact points begin to share information on procedural problems in cross border cases Co-ordinator begins to compile dossiers and to categorise problems

25 Co-ordinator and national contact points begin to work on training needs Co-ordinator prepares information for discussions with training providers. Steering Committee determines policy for year 2 of the project. Approximate Costing for three year pilot project The costing below is an indication of the likely cost of a pilot project as described above. We believe that there will be discussions with the Commission about the proposal before the precise format of the pilot project is finalised and it will be necessary to refine this costing in the light of those discussions. Until the precise format and structure of the pilot project is determined, the budget cannot be finalised. Budget item Cost per annum Co-ordinator's salary (employee or freelancer? Full or part time? To be determined if pilot project is approved by Commission Co-ordinator's office expenses (phone bill, internet access, insurance) 2000 Co-ordinator's travel budget (10 trips x 500) 5000 Steering Committee travel budget (4 meetings x 5 people x 300) 6000 Budget for two annual meetings of National Contact Points (300 x 10 x 2) 6000 Administration costs likely to be borne by organisations which deliver the project to be confirmed if project goes ahead. 0 Training fund (for subsidising attendance at test training events) (900 x 50) Website costs likely to be borne by the organizations which deliver the project to be confirmed if project goes ahead. 0 Approximate annual budget

26 Feasibility Feasibility of this proposal In reaching a conclusion about the nature of the pilot project to propose, we considered carefully the feasibility of our favoured option. We believe that this is the most realistic way to proceed. There is no support from defence practitioners for the creation of a whole new structure to act in the interests of defence lawyers, and we believe that there are considerable risks inherent in that strategy. Limited work has been done to date in terms of needs analysis with criminal defence lawyers. The legal landscape is changing all the time and the number of criminal cases with a cross border element is growing. Experience of EAW procedures is also growing as the procedure is used more frequently, and external forces such as the current economic recession are impacting on the number and nature of cross border criminal cases which are arising as people move around more to look for work. A pilot project such as that which we propose, which builds on existing, trusted structures, rather than creating something entirely new with all the difficulties and expense which that entails is a realistic and responsible way to proceed. This approach will allow structures and assumptions to be tested and is based upon concrete, on-going input from defence lawyers. This approach will also allow for the design of a followup project which uses tested concepts and which can deliver real results. 25

27 Other options which we considered Option 2 - The creation of a new organisation to assist defence lawyers One proposition which has been considered a number of times in different forms in the past is the creation of a new, independent structure to represent and assist defence lawyers working on cross border cases. We considered this again in the context of this project.. This option could involve:- the creation of an Association and finding premises for the Association employing 3-5 staff members and providing equipment etc for them delivering a range of services, starting small, and growing over time establishing a funded network of contact points in all Member States who would respond to enquiries from practitioners and work with the Association to develop resources for defence practitioners working with contact points to develop a network of criminal bar associations around the EU building of well designed databases of defence lawyers willing to work on cross border cases, with details of their experience and language skills design and delivery of networking and training events design and delivery of a database of criminal procedural law from around the EU design and delivery of innovative training solutions (webcasts, podcasts, recorded events which could be used privately or by criminal bar associations distribution through contact points of information about developments in EU criminal law Approximate cost A project such as this is difficult and time consuming to cost because of the number of variables, but we estimate that costs would be in the region of per annum to deliver something worthwhile. Given existing resources, we do not believe that this is an effective way to use public money. Response of Bars/practitioners Bar representatives and practitioners unanimously rejected this approach. The view was that it was excessive and unnecessary to create a new structure to represent the interests of criminal lawyers working on cross border cases. Furthermore, participants believed that there was a danger in creating a new organisation which could in the future be 'hijacked' and become a quasi-insititutional body or agency. Lawyers wanted to retain control of any body working in their interests and prefer unanimously to work through existing organisations which are independent and which will always remain so. Furthermore, it was thought to be unrealistic to seek to create a new organisation as the first phase of a pilot project. Participants expressed the view that more research and testing of ideas was required before embarking on a solution as ambitious and costly as this. A step-by-step approach was unanimously preferred by defence lawyers. Accordingly, we rejected this option. 26

28 Option 3 a hybrid option, using existing resources to deliver more services We considered the option of proposing a more complete solution which would have many of the same elements as option 1, but which would go further in delivering training, funding exchanges, creating a website and databases of contacts, procedural law etc. We also considered that this might apply to all 27 Member States from the outset. This option would also rely on a network of contact points who would be voluntary, as in Option 1, and would be managed by a co-ordinator and a Steering Committee of defence lawyers This option would involve much greater requirements on the network of contact points and would involve comprehensive gathering of information which could form the basis for lists of lawyers with experience in cross border cases, databases of procedural law, the design and dissemination of innovative training tools and the creation of a training fund for short stages. However we considered that this option went too far, too quickly. Whilst certain of the elements of this proposal are attractive, we believe that there is an overlap with work which is currently being undertaken by the PenalNet project and in relation to the ejustice portal. Further, we do not believe that sufficient experience exists at present in relation to the needs of criminal defence practitioners to make this solution viable. The costs of this option would be in the region of per annum and again, we consider this to be rather high for a pilot project. 27

29 Annex 1 - Responses to legal aid questionnaires 1. England and Wales Request for information about availability of legal aid in cross border cases. Response from the Law Society of England and Wales As part of the European Commission funded project on Cross Border Legal Assistance, we are collecting information about the availability of legal aid in cross border criminal cases. We are fully aware that availability or otherwise of funding is a key issue in cross border criminal cases, but it is not the main focus of the current project. It would be useful both to us and to the Commission to have factual information about the availability of legal aid in cross border criminal cases, and the information may help us to persuade the Commission of the need for action at European level on funding. We would be grateful if you could answer the questions below and return the information to us by 31 July 2009 at the latest, so that we may include the information in our final report to the Commission. 1. Are non-nationals in your home state entitled to legal aid/financial assistance in criminal cases? Yes; as long as it is a matter of English/Welsh law. 2. If legal aid is available to non nationals, for criminal cases, are there any types of cases which are not covered? Any suspect arrested by the police is entitled to free and independent legal advice however in some cases referred to as less serious offences (e.g. road traffic offences), legal aid may be limited to telephone advice only. If the defendant wants representation by a lawyer they would need to pay privately. Telephone advice is of considerable concern. Not least because it restricts the right of access to a lawyer in person, to meet with the lawyer in private and to have a lawyer present during any interrogation. If the suspect is charged and has to go to court then again legal aid is available subject to the defendant s means and the case meeting the merits criteria (see below) Moves towards using videoconferencing in the UK in criminal proceedings are also of considerable concern. Not least because a person charged with a criminal offence should, as a general principle based on the notion of a fair trial, be entitled to be present at his hearing. See paragraphs 57 to 65 of Joint position of the Law Society of England and Wales, the Law Society of Northern Ireland, the Society of Solicitor Advocates, the Bar Council of England and Wales and the Bar Standards Board on European e-justice dated 24 July 2009 at 28

30 3. What conditions apply to the grant of such assistance to non nationals? The same conditions apply as to UK nationals; (1) Merits test The case must first pass the merits or Widgery criteria: It is likely that the client will lose their liberty The client has been given a sentence that is suspended or non-custodial. If they break this, the court may be able to deal with them for the original offence It is likely that they will lose their livelihood It is likely that they will suffer serious damage to their reputation A substantial question of law may be involved The client may not be able to understand the court proceedings or present their own case Witnesses may need to be traced or interviewed The proceedings may involve expert cross-examination of a prosecution witness It is in the interests of another person that representation is granted Any other reasons. (2) Means test At certain stages of the case, eligibility for legal aid is also subject to a Means test: Police station: Advice in the police station is not subject to the means test, and is available to all regardless of means. Magistrates' court: Following the passing of the CDS Act (in March 2006), since 2 October 2006, all applicants for legal aid in the magistrates' court now undergo an assessment of their financial means, and if their income is above a certain limit they will be required to pay for their own legal representation. Crown Court: Legal Aid in the Crown Court is not currently subject to a means test. However means testing will be introduced in the Crown Court from January 2010; initially in 5 courts, with national roll-out between April June Defendants will be required to pay a contribution towards their legal costs, based on their level of income and capital. 4. Can the accused choose a lawyer under the legal aid scheme or is one allocated by the state? 29 The defendant can choose their own lawyer; if they do not have one, in the police station and magistrates' court they will be offered the Duty Solicitor. For some cases referred to as less serious offences, in the police station there is no longer the option to request your own solicitor under legal aid; defendants are advised by CDS Direct, a telephone advice service. As set out above, telephone advice is of considerable concern. Moves in England and Wales towards Best Value Tendering (BVT) for Duty Solicitor, police station, work are also likely to have grave consequences for access to justice. BVT is an auction of Duty Solicitor work packaged into blocks, in which the lowest price wins. Firms are likely to feel pressured to make unsustainably low bids in order to win a contract. Quality will not be taken into account as part of the bid process. There is also a great risk of disrupting the existing supplier base. 7

31 5. Are there financial limits on legal aid in criminal cases? Not in terms of an overall cap on the costs of the case, but the solicitors fees are limited to specified legal aid rates of pay, which are much lower than private rates. The overall legal aid budget for crime is not capped, due to the UK s obligations under the European Convention for Human Rights, but the Government has been seeking to limit overall spending on legal aid for some time. Yes. 6. Once granted, is legal aid available from the start of the investigation by the police and does it continue to the end of the case, including a possible appeal? NA. 7. If not, what are the limits of such assistance? 8. Would your legal aid system fund interpretation/translation for the accused? If so, from what point in the case? Who funds and provides the interpreters? Are there training requirements for the interpreters? An interpreter is provided at any stage in the case where needed. At the police station it is the custody sergeant (police) who decides to allocate an interpreter. The police pay for the interpreter in the police station. At this stage it is normal for both sides to share the same interpreter. In exceptional circumstances, it may be justifiable for the defence to have their own, in which case the Legal Services Commission8 (LSC) will pay. However this is not a very common occurrence. In court, the interpreter is provided and funded by the court. However in immigration appeals it is considered best practice for the solicitor to have their own interpreter, which would normally be paid for by legal aid (provided the LSC agree that the interpreter was necessary). The interpreters are required to be of a certain standard but no more than that. 9. Would your legal aid system fund any form of 'double defence' (ie where the accused is represented or advised by both a lawyer from his home Member State and from the Member State where he is charged with the offence)? No. The LSC only pays for UK based firms with a contract to undertake legal aid work, therefore only the UK lawyer would be funded; nothing outside of firms based in England or Wales would be paid for from the legal aid fund. There is no specific provision for legal aid work in other Member States so it is necessary for the UK lawyer to convince the LSC that the work concerned is a proper disbursement in connection with the case in England and Wales. For example, in order to get funding for expert witnesses on the law of other Member States in a case in England and Wales a legal opinion is needed to persuade the Legal Services Commission that the expert witness is needed. Therefore an element of goodwill is needed 8 The LSC is the non-departmental public body that administers the legal aid fund. 30

32 from the lawyer in the other jurisdiction to provide free legal advice initially so that the Legal Services Commission can decide whether funding is needed for the expert witness. 10. Is you Bar involved with the provision of legal aid? If so in what ways? The Law Society does not have any involvement in the administration of the legal aid system; this is done by the Legal Services Commission.9 Barristers are instructed by the solicitor in Crown Court cases to conduct advocacy, and are paid directly by the Legal Services Commission. 11. Any other comments you would like to make about legal aid in cross border criminal cases? All criminal legal aid work is performed under a Contract with the Legal Services Commission. This sets out criteria that firms are expected to meet, and what work is covered under the contract. The contract, and all rules and regulations governing the conduct of legal aid cases, eligibility etc are set out in the LSC manual. Criminal legal aid is covered in Volume 4.10 The main regulations governing criminal legal aid are in the CDS Funding Order http:// der&year=&number=&legtype=s.i.+%28all+uk%29

33 2. Spain Request for information about availability of legal aid in cross border cases. As part of the European Commission funded project on Cross Border Legal Assistance, we are collecting information about the availability of legal aid in cross border criminal cases. We are fully aware that availability or otherwise of funding is a key issue in cross border criminal cases, but it is not the main focus of the current project. It would be useful both to us and to the Commission to have factual information about the availability of legal aid in cross border criminal cases, and the information may help us to persuade the Commission of the need for action at European level on funding. We would be grateful if you could answer the questions below and return the information to us by 31 July 2009 at the latest, so that we may include the information in our final report to the Commission. 1. Are non-nationals in your home state entitled to legal aid/financial assistance in criminal cases? Yes, they are. 2. If legal aid is available to non nationals, for criminal cases, are there any types of caseswhich are not covered? No, there are not cases which are not covered. In criminal cases in Spain, the defendants (the nonnationals included) have the right to legal aid if they can show that they have not economic resources. It is not important if they are in Spain in illegal situation, they will receive the legal aid in all the cases. 3. What conditions apply to the grant of such assistance to non nationals? They have to show (as Spaniards who want lawyers from legal aid) that they have not economic resources. 4. Can the accused choose a lawyer under the legal aid scheme or is one allocated by the state? The lawyer will be allocated by the Bar Association of the city/jurisdiction where the defendant is. The Bar Association will choose the lawyer from a list where lawyers who want to work in legal aid appear. It has been studied the possibility that the defendant can choose his/her lawyers; in this case, there will be limits. 5. Are there financial limits on legal aid in criminal cases? The legal aid will be provided for all people whose financial incomes are inferior to an economic amount fixed by law (currently this amount is the double of the minimum professional wage). 32

34 6. Once granted, is legal aid available from the start of the investigation by the police and does it continue to the end of the case, including a possible appeal? Yes, it is. 7. If not, what are the limits of such assistance? 8. Would your legal aid system fund interpretation/translation for the accused? If so, from what point in the case? Who funds and provides the interpreters? Are there training requirements for the interpreters? The interpretation/translation is provided by the Ministry of Justice of Spain. The quality of interpretation at police station is usually very poor, and at court depending of where. Translation is just limited to the document of the file, but never ever to the judicial resolution, so, the defendant doesn t know at all what those essential documents (as contents the Swedish proposal )says. 9. Would your legal aid system fund any form of 'double defence' (ie where the accused is represented or advised by both a lawyer from his home Member State and from the Member State where he is charged with the offence)? No, double defense is not foreseen in the Spanish legal aid system. Hence, there are not funds for double defence. 10. Is you Bar involved with the provision of legal aid? If so in what ways? The Bars organize the legal aid and are the responsible of the management of the funding that the Public Administration gives to legal aid. The regions in Spain (Comunidad Autónoma) with competences in justice field have their own legal aid system. 11. Any other comments you would like to make about legal aid in cross border criminal cases? The limited financial resources for legal aid create differences between lawyers and public prosecutors regarding the equality of Arms (i.e.: double defence not granted for the defendant). On the other hand, it has to be pointed out that the Consejo General de la Abogacía Española CGAE- has created some tools for lawyers based on IT technology, in the fields of legal aid as well as cross border criminal cases. The Justicia gratuita (please, see the attachment) allows lawyers to reduce delays and cost. Moreover, the project PenalNet, co-financed by the European Commission, will allow secure e-communications between criminal lawyers in Europe, helping lawyers and legal aid system in cross border criminal cases 33

35 3. Austria Request for information about availability of legal aid in cross border cases. As part of the European Commission funded project on Cross Border Legal Assistance, we are collecting information about the availability of legal aid in cross border criminal cases. We are fully aware that availability or otherwise of funding is a key issue in cross border criminal cases, but it is not the main focus of the current project. It would be useful both to us and to the Commission to have factual information about the availability of legal aid in cross border criminal cases, and the information may help us to persuade the Commission of the need for action at European level on funding. We would be grateful if you could answer the questions below and return the information to us by 31 July 2009 at the latest, so that we may include the information in our final report to the Commission. 1. Are non-nationals in your home state entitled to legal aid/financial assistance in criminal cases? Yes. Non-nationals are entitled to legal aid in criminal cases under the same conditions as nationals (see section 61 para 2 and section 391 Austrian Code of Criminal Procedure Strafprozessordnung StPO). 2. If legal aid is available to non nationals, for criminal cases, are there any types of cases which are not covered? No, the legal position of non-nationals in criminal procedure including legal aid is not different from nationals. According to section 1 para 2 criminal procedure in Austria starts, when the police or the prosecution investigates against a known or un-known person to clear up the suspicion of a criminal act or applies coercive measures against a suspect. Criminal Procedure ends with an order to stay the proceedings, a withdrawal from the prosecution or a court decision. For the conditions of legal aid in general see What conditions apply to the grant of such assistance to non nationals? The same as to nationals. Legal aid covers the costs of a criminal procedure, if in case of conviction the accused is not able to bear these costs without the interference of his and his families alimentation and the obligative remediation is not endangered (section 391 para 1 Code of Criminal Procedure) Besides this a Legal Aid Lawyer has to be granted (partly) free of charge under the same conditions (the accused is not able to bear the costs of the whole proceeding without the interference of his and his family s alimentation) and so far as the request for a defence lawyer is in the interest of the administration of justice, especially if it is required in the concern of an adequate defence (section 61 para 2 Code of Criminal Procedure). In principle a defence lawyer has to be provided in the whole proceeding (including pretrial investigation), in any event the accused has to be granted a defence lawyer for the main trial, in case of 34

36 detention and other cases of necessary defence (see section 61 para 1 numbers 1 to 7 Code of Criminal Procedure). Besides these cases of necessary defence the accused is in any event entitled to have a defence lawyer if he is blind, deaf, dumb or handicapped in any other way or he does not speak the language of the court in an appropriate way and for all these reasons is not able to defend himself. Furthermore legal aid has to be provided in any event for an appeal procedure and when the legal situation is unclear (section 61 para 2 Code of Criminal Procedure). The costs for the defence lawyer have to be reimbursed by the accused to a certain extent, if this is possible and reasonable without interfering his alimentation. The principles of calculation of this amount can be found in section 393a Code of Criminal Procedure. 4. Can the accused choose a lawyer under the legal aid scheme or is one allocated by the state? Legal aid is granted by court order which authorizes the board of the competent Bar Association to appoint a lawyer as defence lawyer. Thereby the board has to respect the wishes of the accused concerning the selection of his lawyer as far as possible (section 62 para 1 Code of Criminal Procedure). 5. Are there financial limits on legal aid in criminal cases? There are no financial limits in the course of awarded legal aid. 6. Once granted, is legal aid available from the start of the investigation by the police and does it continue to the end of the case, including a possible appeal? Basically legal aid can be provided by court on request in all stages of the criminal procedure, from the start of the investigation by the police till the end of the case including an appeal procedure. In case of detention, for the main trial and other cases of necessary defence, which are mentioned in section 61 para 1 Code of Criminal Procedure (look above) it has to be granted in any event. In Austria a special stand-by-legal-counselling service (Anwaltlicher Journaldienst) for arrested suspects/defendants is available, which is provided by initiative of the Austrian Bar Association and the Federal Ministry of Justice. The right to assistance of a defence lawyer comprises a telephone or, by request of the suspect/defendant, a personal consultation with a lawyer and, if necessary, legal assistance during his/her interrogation (section 164 Code of Criminal Procedure) as well as other actions reasonably required for an appropriate defence (like e.g. the application for the appointment of a Legal Aid Lawyer by the court,etc.). The Austrian Bar provides for this purpose a stand-by phone number ("hotline") available daily from 0.00 to hours where, if required, a lawyer entitled to represent clients in criminal proceedings can be contacted immediately. The first call and the first advice on the phone are free of charge. Further services are covered by legal aid if granted according to the conditions set out above (3). Apart from that, some Bar Association provide First Legal Advice ( Erste Anwaltliche Auskunft ) via lawyers at the premises of the Bar Association or their offices, which is free of charge. 7. If not, what are the limits of such assistance? See above. 35

37 8. Would your legal aid system fund interpretation/translation for the accused? If so, from what point in the case? Who funds and provides the interpreters? Are there training requirements for the interpreters? Interpretation or translation is covered by legal aid according to section 56 Code of Criminal Procedure in principle for the whole proceeding: The accused has the right to translation if he is not able to communicate in the language of the court in an appropriate way. Insofar as it is in the interest of the administration of justice and needfully for the guarantee of his defence an interpreter also has to be at his disposal. Interpreters are funded by state, to be registered in the official list they have to pass a certification procedure. 9. Would your legal aid system fund any form of 'double defence' (ie where the accused is represented or advised by both a lawyer from his home Member State and from the Member State where he is charged with the offence)? The Austrian system does not explicitly exclude the possibilty of double defence meaning the representation of a lawyer from his home state and a lawyer from the Member State where he is charged with the offence. However a valid mandate will stand against the grant of an Austrian Legal Aid-lawyer or ceases legal aid in the moment an empowered lawyer intervenes for the accused (section 62 para 4 Criminal Procedure Code). 10. Is your Bar involved with the provision of legal aid? If so in what ways? According to the preceding court order the competent Bar Associations are entrusted with the appointment of the Legal Aid Lawyer in the particular case. See section 45 Austrian Lawyers Act - Rechtsanwaltsordnung. This service of the lawyers profession is satisfied by a blanket-amount paid by the state ( Pauschalvergütung ), which is one of the main pillars of the lawyers retirement system in Austria. 11. Any other comments you would like to make about legal aid in cross border criminal cases? 36

38 4. Sweden Request for information about availability of legal aid in cross border cases. As part of the European Commission funded project on Cross Border Legal Assistance, we are collecting information about the availability of legal aid in cross border criminal cases. We are fully aware that availability or otherwise of funding is a key issue in cross border criminal cases, but it is not the main focus of the current project. It would be useful both to us and to the Commission to have factual information about the availability of legal aid in cross border criminal cases, and the information may help us to persuade the Commission of the need for action at European level on funding. We would be grateful if you could answer the questions below and return the information to us by 31 July 2009 at the latest, so that we may include the information in our final report to the Commission. Short general information of the Swedish system: Legal Aid in Criminal Cases - Public Defence Counsel Legal Aid to suspects in criminal cases is provided by rules concerning the right to a Public Defence Counsel. The provisions governing this are to be found in the Code of Judicial Procedure. A Public Defence Counsel will always be given to a suspect of a serious criminal offence and always when a person is taken in to custody. For minor offences, a Public Defence Counsel is only available if there are special reasons. The suspect s economic situation has no relevance. It is for the Court to decide whether a Public Defence Counsel should be appointed or not. Only lawyers that are members of the Swedish Bar Association can be appointed as Public Defence Counsel (with some minor exemptions). He or she will help the suspect in all matters relating to the criminal proceeding and will also be present at the trial. It is the suspect himself who chose the counsel. The fee to the Public Defence Counsel is paid by the State. The Court decides the fee and as a rule the Counsel is paid by the hour at a rate which the Government decide each year. The rate for this year is SEK (approx. 100 ). As a rule the rate is followed but the court can decide a lower or a higher rate depending on the counsels qualification and how well the assignment is performed. There is also a fix fee which is applicable in minor cases. A Public Defence Counsel is not allowed to ask his or her client for any additional fee. If the suspect is acquitted he or she does not have to refund anything to the state. If the suspect is convicted he or she has to reimburse the State the costs for the Public Defence Counsel and for the Counsel for the Aggrieved person. However he or she does not have to pay more than he or she should have had to pay if (General) Legal Aid had been granted, that is, a certain percent of the fee (2-40 %). The Court could also decide that the convicted person does not have to pay anything. This is common procedure for example when the convicted gets a long sentence. 37

39 Yes. 1. Are non-nationals in your home state entitled to legal aid/financial assistance in criminal cases? No 2. If legal aid is available to non nationals, for criminal cases, are there any types of cases which are not covered? 3. What conditions apply to the grant of such assistance to non nationals? Same as for Swedish nationals 4. Can the accused choose a lawyer under the legal aid scheme or is one allocated by the state? Free choice as a main rule, but depending on the costs. The costs are allocated by the State. 5. Are there financial limits on legal aid in criminal cases? See information above and enclosed links. 6. Once granted, is legal aid available from the start of the investigation by the police and doesit continue to the end of the case, including a possible appeal? To the end of the case 7. If not, what are the limits of such assistance? 8. Would your legal aid system fund interpretation/translation for the accused? If so, from what point in the case? Who funds and provides the interpreters? Are there training requirements for the interpreters? Interpretation and translation shall be funded by the State. A suspect has a right to understand the accusation. The State and/or the lawyer provide interpreters. There are training requirements for specific interpreters trained for criminal proceedings in Swedish courts. 9. Would your legal aid system fund any form of 'double defence' (ie where the accused is represented or advised by both a lawyer from his home Member State and from the Member State where he is charged with the offence)? See information in attached link. 38

40 10. Is your Bar involved with the provision of legal aid? If so in what ways? No 11. Any other comments you would like to make about legal aid in cross border criminal cases? No 39

41 5. Czech Republic Request for information about availability of legal aid in cross border cases As part of the European Commission funded project on Cross Border Legal Assistance, we are collecting information about the availability of legal aid in cross border criminal cases. We are fully aware that availability or otherwise of funding is a key issue in cross border criminal cases, but it is not the main focus of the current project. It would be useful both to us and to the Commission to have factual information about the availability of legal aid in cross border criminal cases, and the information may help us to persuade the Commission of the need for action at European level on funding. We would be grateful if you could answer the questions below and return the information to us by 31 July 2009 at the latest, so that we may include the information in our final report to the Commission. Yes. 1. Are non-nationals in your home state entitled to legal aid/financial assistance in criminal cases? 2. If legal aid is available to non nationals, for criminal cases, are there any types of cases which are not covered? If the defence (presence of a defence lawyer) is necessary (e.g., compulsory defence cases or a person cannot duly represent himself due to his uncapacity mental of physical...), the person is provided with legal aid through the whole criminal proceedings. These cases are covered by legal aid by the state, and are strictly listed by the Act on the Criminal Procedure. In cases where the defence (presence of a defence lawyer) is not absolutely necessary, legal aid is not guaranteed. Nevertheless, if the accused person insists on the defence being necessary and is not fulfilling requirements to have a lawyer appointed by court, he/she shall have the right to have his lawyer appointed by the Czech Bar Association ( Bar ) upon the person s timely application (please, see the answer to the question 10). 3. What conditions apply to the grant of such assistance to non nationals? The same conditions are being applied as to nationals. If the charged person attests to have not money enough to pay the defence cost, the presiding judge and in pre-trial proceedings the judge shall determine that the charged person is entitled to free defence or defence for reduced fee. In such event the defence costs shall be paid, either fully or in part, by the state. 4. Can the accused choose a lawyer under the legal aid scheme or is one allocated by the state? If a person is entitled to legal aid/free defence provided by the state, his lawyer is allocated by the state. He cannot choose one himself. 5. Are there financial limits on legal aid in criminal cases? 40

42 No. 6. Once granted, is legal aid available from the start of the investigation by the police and does it continue to the end of the case, including a possible appeal? Yes, unless it is proved that the accused person does not need provision of legal aid anymore (he is able fully or partially to cover it himself). However, it does not include the proceedings before the Constitutional Court. There is no entitlement to receive legal aid covered by the state in the proceedings before the Constitutional Court, therefore, these proceedings fall under the Bar system of the provision of legal aid. 7. If not, what are the limits of such assistance? Please see the answer to the question No Would your legal aid system fund interpretation/translation for the accused? If so, from what point in the case? Who funds and provides the interpreters? Are there training requirements for the interpreters? Yes, it is available from the time point when it is actually needed. The expenses of the interpreters are covered by the state. Yes, there are training requirements for the interpreters. No. 9. Would your legal aid system fund any form of 'double defence' (ie where the accused is represented or advised by both a lawyer from his home Member State and from the Member State where he is charged with the offence)? Yes. 10. Is you Bar involved with the provision of legal aid? If so in what ways? Legal aid is guaranteed especially by the state (by courts) in the Czech Republic. Legal aid is provided to persons who need it also by different non-profit organisations. The Act No. 85/1996 Coll., on the Legal Profession, states the right of the lawyer s appointment. A person not fulfilling requirements to have a lawyer appointed by court and who was refused to be provided by legal aid by at least 2 lawyers shall have the right to have his lawyer appointed by the Bar upon the person s timely application. The Bar may appoint a lawyer only once in one case. In its decision on appointment the Bar shall define the case where the lawyer shall be obliged to provide legal services as well as their scope. The Bar may, in its decision, identify other conditions for the provision of legal services, including the duty to provide services free of charge or for a reduced fee if the property and income situation of the applicant suggest so. A lawyer appointed by the Bar shall be obliged to provide legal services to the applicant under conditions stipulated by the Bar. The appointment of a lawyer by the Bar shall not replace the power of attorney required by special legislation to defend in criminal proceedings the person for whom the lawyer was appointed by the Bar or to represent him in other proceedings. The lawyers appointed by the Bar in order to provide free of charge legal services are not entitled to any remuneration for provided legal services. Lawyers, upon their request, are only entitled to receive 150,- CZK for each legal act within the legal services provided. This amount is covered by the social fund of 41

43 the Czech Bar Association. Only exceptionally, the real expenditures (expertises, travel expenses) are covered. The amount of 150,- CZK is only symbolic and does not correspond to the real workload of the lawyer. 11. Any other comments you would like to make about legal aid in cross border criminal cases? No. 42

44 6. Lithuania Request for information about availability of legal aid in cross border cases. As part of the European Commission funded project on Cross Border Legal Assistance, we are collecting information about the availability of legal aid in cross border criminal cases. We are fully aware that availability or otherwise of funding is a key issue in cross border criminal cases, but it is not the main focus of the current project. It would be useful both to us and to the Commission to have factual information about the availability of legal aid in cross border criminal cases, and the information may help us to persuade the Commission of the need for action at European level on funding. We would be grateful if you could answer the questions below and return the information to us by 31 July 2009 at the latest, so that we may include the information in our final report to the Commission. 1. Are non-nationals in your home state entitled to legal aid/financial assistance in criminal cases? In Lithuania there is no possibility to entitle financial assistance in any case, but state can guarantee legal aid (there are two types: primary and secondary it is drafting of documents, defence and representation in court, including the process of execution, representation in event of preliminary extrajudicial consideration of a dispute, where such a procedure has been laid down by laws or by a court decision). The Law on the State-guaranteed legal aid regulates these questions (who are able to get legal aid and etc.) (Article 2, par. 3 and article 11) Yes, non-nationals are entitled to legal aid. 2. If legal aid is available to non nationals, for criminal cases, are there any types of cases which are not covered? All the criterions are consolidated in the above mentioned law and also in treaties of the Republic of Lithuania. 3. What conditions apply to the grant of such assistance to non nationals? Their property and annual income must not exceed the property and income levels established by the Government of the Republic of Lithuania. And also there are situations when persons are eligible for secondary legal aid regardless of the property and income (article 12). 4. Can the accused choose a lawyer under the legal aid scheme or is one allocated by the state? If the accused asks for the state guaranteed legal aid, the advocate is allocated by the state, but also there is possible to find the advocate by ones self, but then the state do not cover the litigation cost. 43

45 5. Are there financial limits on legal aid in criminal cases? No, there are no financial limits, the advocate who works as state guaranteed, is paid for his/her work by the criterions set by the Government. Yes. 6. Once granted, is legal aid available from the start of the investigation by the police and does it continue to the end of the case, including a possible appeal? 7. If not, what are the limits of such assistance? 8. Would your legal aid system fund interpretation/translation for the accused? If so, from what point in the case? Who funds and provides the interpreters? Are there training requirements for the interpreters? The code of criminal process regulates that the language of the trial is the official States language in this case Lithuanian. If the accused do not understand the process the translation is guaranteed by the state. All the documents that has to be given to the accused/suspect must be translated to the language he/she understands. 9. Would your legal aid system fund any form of 'double defence' (ie where the accused is represented or advised by both a lawyer from his home Member State and from the Member State where he is charged with the offence)? No. Another advocate from accused/suspect country should be paid by him self. 10. Is you Bar involved with the provision of legal aid? If so in what ways? Lithuanian Bar Association verifies the quality of activities of the lawyers providing secondary legal aid according to the rules for assessment of the quality of secondary legal aid approved by the Lithuanian Bar Association upon agreement with the Ministry of Justice. 11. Any other comments you would like to make about legal aid in cross border criminal cases? 44

46 Annex 2 - Details of meetings held 15 June 2009 London, Venue - Law Society of England and Wales (LSEW) Participants Philip Plowden, Member of the LSEW Criminal Law Committee Anand Doobay, Member of the LSEW Criminal Law Committee Ian Kelcey, Chair of the LSEW Criminal Law Committee Scott Crosby, ECBA Representative George Gebbie, ECBA Representative and Faculty of Advocates Representative Richard Furlong, ECBA and Bar Council of England and Wales Representative (submitted written comments) Kevin Roberts, ECBA Representative Robin Grey, ECBA Representative Susan Clements, Law Societies Joint Brussels Office Janet Arkinstall, LSEW Murray Macara, representative of the Law Society of Scotland by telephone Mrs Helen Malcolm QC, Barrister, Bar Council of England and Wales Representative Ms Emma Collins, Bar Council of England and Wales Representative Mr Brian Kennedy QC, Barrister, Bar Council of Northern Ireland Representative Mr Gavin Irwin, Criminal Bar Association of England and Wales Representative 45

47 19 June 2009 Madrid, Venue - Consejo General de la Abogacia Espanola (CGAE) Participants Alonso Hernandez Pinson Prof Jaime Alonso Gallo Fernando Piernavieja CGAE, Brussels Madrid Malaga Luz Elena Jara Madrid Maria del Sol Cuevas Cesar Tocina Hernandez Fernando Montalvo Gomez Eva Izquierdo Monzon Lorena Ruiz Huerta Juan Gil de la Fuente Jesus Diaz Veiga Fernando Bejarano Gustav Lopez-Munoz Larraz Luz Almeida Ernesto Diaz Bastien Prof. Javier Iglesia Redondo Madrid Salamanca Alicante Barcelona Madrid Madrid Madrid Madrid Madrid Madrid Madrid Madrid Rafael Vaillo Ramos, Ministry of Justice, Madrid. 46

48 10 July 2009 Vienna, Venue - Der Östereichischer Rechtsanwaltskammertag Participants Dr. Gerhard Benn-Ibler, Lawyer in Vienna, President of the Austrian Bar MMag. Dr. Michael Hermann Dohr LL.M., Lawyer in Lower Austria Dr. Lukas Kollmann, Lawyer in Vienna Dr. Elmar Kresbach LL.M., Lawyer in Vienna Mag. Dr. Roland Kier, Lawyer in Vienna Dr. Wolfgang Moringer, Lawyer in Upper Austria Dr. Elisabeth Rech, Lawyer in Vienna, Vice President of the Bar Association of Vienna Dr. Gerald Ruhri, Lawyer in Styria Prof. Dr. Richard Soyer, Lawyer in Vienna Dr. Josef Weixelbaum, Lawyer in Upper Austria, Vice President of the Bar Association of Upper Austria Dr. Theresia Schur, Legal Advisor of the Austrian Bar Mag. Christian Pilnacek, Austrian Federal Ministry of Justice, Legislative section of penal law Assessor iuris Stefan Schumann, University of Graz, Department of Criminal Procedure Law and Criminology 47