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Europe adopts new rules on access to a lawyer

A new law to guarantee the right of all citizens to be advised by a lawyer when facing criminal proceedings received the backing of the European Parliament earlier this month. MEPs adopted the proposal with an overwhelming majority.

The new law will mean that anyone who is a suspect – no matter where they are in the European Union – will have a guaranteed right to see a lawyer at every stage of their criminal proceedings.

The new rules will also make sure that anyone arrested is allowed to communicate with their family or, if they are within another Member State, to contact their country’s consulate.

Why was change needed?

The European Commission has been working on the reforms for some years now, arguing that while the right of defence for anyone suspected of a crime is widely recognised as a basic element of a fair trial, the conditions under which suspects can consult a lawyer differ between Member States.

In some countries, for example, the person accused of a crime may not be able to see a lawyer during police questioning, while the status of evidence obtained without the presence of a lawyer varies widely between Member States.

The Commission was also concerned about differences between Member States relating to the right of suspects to let a relative or employer know when they have been arrested. In some countries individuals may not systematically be offered this right, may only receive it at a late stage in the process, or may not be informed once their family has been contacted.

Where are we now?

In 2009 the EU Justice council devised a roadmap for procedural changes in order to strengthen the rights of EU citizens in criminal proceedings.

The first measure under this framework was approved in 2010. This was a Directive giving suspects the right to translation and interpretation in their own language throughout the course of criminal proceedings – including when receiving legal advice.

The second measure, dealing with a suspect’s right to information, was approved in June 2012. This Directive ensures that anyone arrested or subject to a European Arrest Warrant in any EU Member State is given a Letter of Rights listing their basic rights during criminal proceedings.

The draft Directive on access to a lawyer and notification of custody, recently approved by MEPs, is the third step in this series of measures.

The proposals

The draft Directive, once formally approved, will:

  • Provide suspects with access to a lawyer from the first stage of police questioning and throughout criminal proceedings;
  • Allow adequate, confidential meetings with the lawyer so that the suspect can effectively exercise his or her defence rights;
  • Allow the lawyer to play an active role during interrogations and to check detention conditions;
  • Make sure that the suspect is able to communicate with at least one family member or employer informing them of the arrest and custody;
  • Allow suspects abroad to contact their country’s embassy or consulate and receive visits; and
  • Offer people subject to a European Arrest Warrant the possibility of legal advice in both the country where the arrest is carried out and the one where it was issued.

Fair trial rights

“EU citizens have the right to a fair trial, whatever their nationality and wherever they are in the Union,” said Viviane Reding, Commission Vice-President and Justice Commissioner, welcoming the vote in the European Parliament. “We have built up a series of procedural rights in EU law and the right to be advised by a lawyer is a central part.”

The draft Directive will now pass to the Council of Ministers for formal adoption and signature. It will then be published in the Official Journal of the European Union and Member States will have two years from the date of that publication in which to implement the new Directive.

Contact our Lawyers

If you are facing a criminal charge and require advice, our Glasgow-based solicitors can help you. Complete our online enquiry form here or come in to see us at one of our offices.