UK decides not to opt-in to EU rules on rights of access to a lawyer in criminal proceedings

theEUnit - Trevor Colman

Fair Trials International (FTI) have reported that on the 29th September 2011 the UK informed the EU that it would not opt-in to the proposal for a Directive on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest. This proposal, part of the EU’s ‘roadmap’ on procedural rights, is the third part of this package which has in a large part been produced to try and address the numerous and widespread problems and injustices caused by the European Arrest Warrant.

The UK has opted into the first two roadmap proposals; a Directive on the right to interpretation and translation in criminal proceedings, and a Directive on the right to information in criminal proceedings.

However, the UK is not alone in its criticism of the latest proposal – Ireland has also decided not to opt-in, and both countries, alongside the Netherlands, France and Belgium, issued a statement criticising the protections contained within the draft proposal.

There is speculation however, that the UK’s decision not to opt-in to the latest proposal is motivated by cost cutting. In a drive to reduce legal aid costs the Government has included proposals in the Legal Aid, Sentencing and Punishment of Offenders Bill (Clause 12) for the opportunity at a later date to introduce secondary legislation removing the automatic right of those arrested and in police custody to have access to a lawyer at the police station.

Currently anyone is entitled to free advice in the police station if they are arrested – for minor cases they are only entitled to telephone advice, but in more serious cases they will get a lawyer in the police station for any interview. The Clause 12 proposal indicates that such legal advice at the station will be means tested and only be available if the Government decides that it is a case where it is in the interests of justice for legal advice to be given.

As reported in the Independent in the UK the right to free legal advice was included in the 1984 Police and Criminal Evidence Act after high profile miscarriages of justice stemming from fabricated confessions and intimidation of suspects by the police during the 1970s and 1980s. The availability of free legal advice has played a large part in the UK’s criminal justice system being one of the most respected in the world. It is viewed by many as a fundamental right, ensuring a fairer criminal justice system and protecting some of the most disadvantaged in society.