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Earlier this month the EU Council of Ministers formally adopted a Directive on an accused’s right to have access to a lawyer in criminal proceedings. Member States will have until October 2016 to enact the Directive into their national laws.

Once in force, the new law will apply to an estimated eight million criminal proceedings every year across the 28 EU Member States.

Roadmap of rights

The Directive has been in the pipeline for a long time. It forms part of the measures included in a November 2009 resolution of the Council of Europe, which set out a roadmap “for strengthening procedural rights of suspected or accused persons in criminal proceedings”.

The roadmap was thought necessary because of differences in which suspects and accused people are dealt with around the EU and concerns that some of these differences - in the provision of information about the charges involved, for example – could make the criminal proceedings unfair.  This in turn, could fall foul of the right to a fair trial and the right to a defence, set out in both the EU Charter of Fundamental Rights and the European Convention on Human Rights.

Progress so far

The new Directive is the third measure to be agreed under the roadmap.

The first, relating to translation and interpretation rights in criminal proceedings, was approved in October 2010. It guaranteed the right of suspects to obtain interpretation throughout criminal proceedings, including when receiving legal advice, in their own language in all courts in the EU. EU Member States had until October this year to put the measure into their national laws.

The second was enacted in June 2012. This law related to the defendants’ right to information during criminal proceedings, and 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 the proceedings.

The Member States have until June 2014 to introduce these new rules into their national legal systems.

Right of access to a lawyer

The Directive approved in early October strengthens the fundamental rights of suspects even more. It focuses on the right to access a lawyer, and the right to communicate with third parties while you are in detention.

In particular it will ensure that:

  • suspects and accused persons are given access to a lawyer from the first stage of police questioning and throughout criminal proceedings;
  • suspects and accused persons  are permitted adequate, confidential meetings with their lawyer in order to effectively exercise their defence rights;
  • the lawyer is allowed to play an active role during questioning;
  • where a suspect is arrested, somebody such as a family member is made aware of that arrest and that there is an opportunity for the suspect to communicate with their family;
  • suspects abroad are allowed to be in contact with their country's consulate and receive visits; and
  • people subject to a European Arrest Warrant are given the possibility of legal advice in both the country where the arrest is carried out and the one where it was issued.

Victory for justice

"This law is a victory for justice and a victory for citizens' rights in the European Union," said Vice-President Viviane Reding, EU's Justice Commissioner. “The ball is now in the court of Member States not to lose time but implement this law in their national systems sooner rather than later, for the benefit of our citizens."

The Directive will come into force as soon as it is published in the EU's Official Journal – something which should happen within weeks. Member States will then have three years to implement it into national law.

Contact Lewis Nedas’ Criminal Lawyers in London

For specialist legal advice please contact our solicitors Jeffrey Lewis or Siobhain Egan on 020 7387 2032 or complete our online enquiry form to the right of this page.


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