European Lawyers Day 2019 to focus on criminal legal aid and access to lawyers for those in custody
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European Lawyers Day is an annual event highlighting the role that lawyers play in the protection of the rule of law. It is held in conjunction with the
European Day of Justice, which aims to inform citizens about their rights. This year, it falls on 25 October and the theme is the provision of legal aid for suspects and accused persons in custody.
This theme was chosen to recognise the implementation of
Directive (EU) 2016/1919 in May 2019. The directive seeks to establish common minimum standards on the rules for the provision of legal aid both for persons facing criminal charges and investigations, and for those subject to European Arrest Warrant procedures. Importantly, article 7 of the directive contains measures designed to uphold the quality of legal services and training and requires member states to ensure that:
1there is an effective legal aid system of adequate quality; and
2legal aid services are of a quality adequate to safeguard the fairness of proceedings and to uphold the independence of the legal profession.
The
European Prison Litigation Network (EPLN) is an international non-governmental organisation with participative status at the Council of Europe. It has worked extensively on issues concerning the right of prisoners to have effective access to the courts, both in respect of criminal defence issues and their wider treatment in prison. In June 2019, it published
Bringing justice into prison: for a common European approach. White paper on access to justice for pre-trial detainees, which analysed research from around Europe on this issue. The president of EPLN (and former vice-president of the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment), Marc Nève, summarised the conclusions in the following terms:
First, in practice, the exercise of remedies without the support of a lawyer results in a massive rejection of proceedings as inadmissible or an expeditious treatment, often in breach of international human rights instruments. The lack of legal assistance results in a lower quality of justice which is often very bureaucratic, and lacks due respect for the law. It is therefore essential that the institutions representing lawyers make it clear to domestic authorities that prisoners’ access to a judge is inconceivable without the assistance of a lawyer, and that the procedures in force must recognise the vital role of the latter (
European Lawyers Day 2019 handbook, page 10)
. Recommendations to bars on access to justice in pre-trial detention (which was based on the EPLN research but published by it in advance of the white paper, in May 2019) recommends that states should ensure there is a clear distinction between the provision of legal aid for criminal defence work and for issues concerning the prison authorities so as to ensure adequate payment for both areas. Practical solutions encompassing new technology are recommended to address the deficits on accessing advice that arise in custody, such as: issuing electronic passes for lawyers; prison switchboards that allow prisoners direct communication with their lawyers; and appropriate counselling and signposting resources within prisons.
European Lawyers Day is a timely reminder that the concerns facing lawyers in this country about the adequacy of legal aid for criminal defence and prison law work are shared by our colleagues across the continent. The EU directive is an important development as it goes beyond statements of general principle and focuses on substantive measures that will resonate with those who have witnessed the attrition of criminal legal aid in this country.
The author is vice-president of the European Prison Litigation Network.