Beltrami & Company Criminal Law & Glasgow Solicitors Blog

Anyone suspected or accused of a criminal offence in the EU should have the right to talk to a lawyer as soon as possible, and before police questioning starts, the European Parliament's civil liberties committee has said in amendments to a draft directive.

The new rules should apply as soon as a person is declared a suspect or charged, whether or not he or she is under arrest. The aim is to provide the same rights to a defence and a fair trial under member states' laws across the EU.

MEPs want EU countries to ensure that all suspects or accused persons are given access to a lawyer as soon as possible, and at the latest before questioning by the police or a judge begins. They say the lawyer should play an active role during the questioning (by making statements or requesting clarifications) and should be able to check the conditions of detention. He or she should also be able to present any evidence linked to the charges or request the police to gather it, the civil liberties committee adds.

There are over eight million criminal proceedings in the EU every year. The directive on access to a lawyer and communication upon arrest is the third step in a series of measures to set common EU standards on procedural rights. The first law, adopted by Parliament in June 2010, gave EU citizens facing criminal trials the right to translation and interpretation. The second measure, approved by the EP in December 2011, introduced a "letter of rights" to ensure fair trials across the EU.

The UK, Ireland and Denmark will opt out of this directive.

The European Commission has made available to the public, on the European e-Justice portal, national factsheets on the rights of defendants in all 27 Member States of the EU.

The European Commission’s e-Justice portal aims at facilitating access to justice by citizens and businesses across Europe. It is also aimed at reinforcing judicial co-operation, on the basis of existing legal instruments, and at bringing e-Justice closer to the legal profession and all interested parties.

The factsheets were prepared by the Council of Bars and Law Societies of Europe (CCBE) working together with experienced criminal defence lawyers, the CCBE's member Bars, Ministries of Justice and qualified legal translators.

They list in a simple but comprehensive way the rights available to defendants in criminal proceedings in all the EU Member States. They are available in all of the EU’s official languages.

The factsheets cover the following areas: obtaining legal advice; rights during the investigation of a crime (arrest, questioning and police investigation, searches, first court hearing, preparation for trial); rights during the trial; rights after the trial; and road traffic offences.

The CCBE believes that the factsheets provide a very useful source of information for suspects and defendants in cross-border situations. For example, a Portuguese national who is charged with a crime in Germany can now access information in Portuguese on his rights throughout the German court process.

The Scottish Criminal Cases Review Commission (‘the Commission’) has made its first referral to the High Court in the wake of the Cadder ruling.
 
The case concerned is that of Ryan McCallum, who was convicted of rape on 19th May 2009, and later sentenced to five years’ imprisonment. The Commission has decided to refer the case to the High Court because it considers that, in light of the decision of the Supreme Court in Cadder v HMA, and that of the European Court of Human Rights in Taxquet v Belgium, Mr McCallum may not have had a fair trial.