Earlier this month the European Council gave its approval to the Directive on legal aid for suspects or accused persons in criminal proceedings and in European arrest warrant proceedings. The purpose of the Directive is to enshrine in European law a common set of standards for suspects and accused persons to access legal aid. Whether this will have any impact in the UK, which along with Denmark and Ireland exercised its right to avoid opting in to this measure, remains to be seen.

Background

The Directive is another step in the long and tortuous road to implementing the Roadmap on Procedural Rights. First adopted by the Justice Council in 2009 to foster mutual trust between Member States the Roadmap comprises of five key measures designed to safeguard the fundamental procedural rights of suspects in criminal proceedings. Directives on the right to interpretation and translation and the right to information about charges were adopted in 2010 and 2012 respectively. This was followed in 2013, by a Directive setting out minimum standards for access to a lawyer and for communication upon arrest. The latest Directive sits alongside two others adopted earlier this year covering the presumption of innocence and safeguards for children.

Rights Protected under the Directive

The Directive applies to suspects or accused persons in criminal proceedings who are deprived of liberty, required to be assisted by a lawyer in accordance with EU or national law, or who are requested under a European Arrest Warrant. It also applies to people who are required or permitted to attend certain evidence-gathering procedures, including identity parades, confrontations and reconstructions of the scene of a crime. The text provides that legal aid must be granted to these individuals without undue delay and in any case before they are questioned by the police or another law enforcement agency.

In determining an individual’s eligibility for legal aid Member States may apply a means test, a merits test or a combination of the two. If a means test is adopted it must take into account all relevant objective factors such as income, capital, the suspect’s family situation, the cost of legal assistance and the standard of living in the relevant Member State in order to determine whether that individual lacks sufficient resources to pay for legal assistance. If a merits test is to be applied it must take into account the seriousness of the offence, the complexity of the case and the severity of the penalty in order to determine the necessity of granting legal aid to ensure effective access to justice. The merits test is deemed to be met where at any stage in the proceedings a suspect is brought before a competent court in order to decide whether custody should be imposed and at any other point where the individual is being detained. Where an application for legal aid is rejected the Member State must inform the applicant of this in writing.

The Directive further requires Member States to take necessary action to ensure that they have an effective and qualitative legal aid system and that the system is of a quality that is adequate to safeguard the fairness of proceedings with due respect for the independence of the legal profession. This includes the provision of adequate training to staff involved in the decision as to whether or not legal aid should be granted in an individual case as well as training for lawyers involved in providing legal aid services.

Position of the United Kingdom

Once published in the Official Journal Member States will have 30 months to transpose the Directive into their national legislation. This will not apply to the UK which negotiated the ability to avoid implementing certain measures within the field of justice and home affairs and exercised this right in respect of the Directive in March 2014.

The UK does have the ability to opt in to a particular justice and home affairs measure at a later date but as of yet has chosen not to take this course. It appears unlikely that it will do so given the current attitude to European law and of the Conservative party to legal aid in particular. Writing in July 2014 the then Lord Chancellor and Secretary of State for Justice, Chris Grayling, wrote that the UK Government considered the measures contained within the proposed Directive to be “unnecessary and unwelcome” given that “access to criminal legal aid in the UK is already of a high standard”.

Currently, legal aid is available to individuals who are to be interviewed at the police station as of right. Thereafter an individual’s right to legal aid depends upon a number of factors including where their case is to be heard, whether the interests of justice requires that legal aid be granted in the particular case and the defendant’s means. Timely provision of legal aid in EAW cases is particularly important. The current domestic legislation does not provide for legal aid to UK citizens who are subject to criminal proceedings in other Member States or any other jurisdiction.

Given Brexit and Theresa May’s position to the European Convention on Human Rights it will be interesting to see whether the standard of legal aid within the UK remains commensurate to that offered in other European countries subject to the Directive. Particularly considering that part of the UK Government’s justification for not opting in to the Directive in the first place was that “the right to criminal legal aid is already guaranteed by Article 6 of the European Convention on Human Rights and of course UK laws and practice are compliant with that”.