The Right to Access to a Lawyer at Police Stations: Making the European Union Directive Work in Practice
| DOI | 10.1177/203228441400500404 |
| Published date | 01 December 2014 |
| Author | Jacqueline Hodgson,Ed Cape |
| Date | 01 December 2014 |
| Subject Matter | Article |
450 Intersentia
ARTICLES
THE RIGHT TO ACCESS TO A LAWYER
ATPOLICE STATIONS
Making the European Union Directive
Work i n Pr act ice
E C* and J H**
ABSTRACT
Recent EU Directives provide for a range of procedural protections for suspects and
accused persons, going beyond the more broadly articulated standards set out in the
European Convention of Human Rights. ese reforms are to be welcomed, but their
implementation poses a range of challenges for Member States. Drawing on recent
empirical research, this article focuses on one measure, the right to legal assistance
during police custody. It discusses the range of complex and o en inter-related factors
that operate to help or to hinder the process of en suring that the right is ‘practical and
e ective’ and not merely ‘theoretical and illusory’. Member States do not share a
common procedural tradition and alongside ensuring su cient nancial and human
resources, e ective implementation will require shi s in the legal and occupational
cultures of police, prosecutors and the cr iminal bar.
Keywords: defence; police custody; proce dural rights; suspects
1. INTRODUCTION: THE EU ‘ROADMAP’ OF
PROCEDURAL RIGHTS
In 2009 the Europea n Union (EU) adopted a programme of reform of procedural
rights of suspects and accused persons in crimina l proceedings, known as the
procedura l rights ‘roadmap’.1 In the context of extensive EU legislation regarding
* University of the West of Eng land, Bristol, UK.
** School of Law, University of Warw ick, UK.
1 Roadmap with a view to foste ring protection of sus pect and accused pe rsons in criminal proc eedings,
1July 2009, 11457/09 DROIPEN 53 COPEN 120.
e Ri ght to Access to a Lawyer atPolice S tations
New Journal of Eu ropean Crimina l Law, Vol. 5, Issue 4, 2014 451
judicial and police co -operation between EU Member States, and me asures facilitati ng
prosecution and mutual enforcement of court judg ments, it was argued that fostering
the protection of procedural rig hts would facilitate mutual recognition by enhancing
mutual trust , and would increase the con dence of cit izens in the ability of the EU to
protect and guara ntee their rights.2 Previous attempts to adopt EU-wide measures to
protect procedural rights had foundered a s a result of the need for unanimity a mongst
Member States,3 but fresh impetus was provided by two developments. First, in
November 2008 the Grand Chamber of the European Court of Human Rights
(ECtHR), i n the case of Salduz v Turkey,4 held that suspects arres ted by the police are
entitled, under Art icle6(3) of the European Convention on Human Rights (ECHR), to
access to a lawyer before their rst interrogation.5 Second, anticipated adoption of the
Lisbon Treaty,6 which came into force in December 2009 ve month s a er the
roadmap was adopted, would see the introduction of quali ed majority voting,
meaning that no sing le Member State could veto legislation in this area .7
e procedural rights road map established a ve year programme of legislation
designed to establish mi nimum standards in respect of ve key procedural rights:
interpretation and translat ion (Measure A); information about procedural rig hts and
about the suspected or alleged o ence (Measure B); legal advice and legal a id (Measure
C); communication with relatives, employers and consular authorities (Measure D);
and special safeg uards for vulnerable persons (Measure E).8 A Directive on the right
to interpretation and translat ion was adopted on 20October 2010, with a transposition
date9 of 27October 2013.10 is provides that suspected or accused persons who do
2 e principle of mutu al recognition requires nationa l measures, such as the cour t judgment of a
European Union Member St ate, to be recognized by, and to have the s ame or similar e ects in all
other Member States. S ee further J. Hodg son, ‘Safeguard ing Suspects’ Rig hts in Europe: A
Comparative Persp ective’ (2011) 14 New Criminal Law Revie w 611, 617.
3 Despite considerable support from some Me mber States and NGOs and other or ganisations across
the EU, opposition from t he UK, together with Ir eland and the Czech Repu blic, meant that the
proposed frame work decision on procedural r ights could not be adopted.
4 ECtHR 27November 2008, No. 36391/02.
5 Subsequent decisions of the ECtH R made it clear that t his included the ri ght to have a lawyer present
during police i nterrogations. See, for e xample, ECtHR 21June 2011, Mader v Croatia , No. 56185/07,
and ECtHR 28June 2 011, Sebalj v Croatia, No. 4429/09.
6 Treaty of Lisbon amending the Treat y on European Union and t he Treaty establish ing the Europea n
Community, signed at L isbon, 13December 2007, 2007/C 306/01. For the consol idated versions of
the treaties a s amended by the Treaty of Lisbon, se e the Treaty on European Union (TEU) a nd the
Treaty on the Function ing of the Europea n Union (TFEU), No. 2008/C 115/01, O cial Journal of th e
European Union, C 115, Volume 51, 9May 2008.
7 For a more detailed account, se e E. Cape and Z. Namorad ze, E ective Criminal Defence in Easter n
Europe (Moldova: Soros Foundation, Moldov a, 2012), ch. 1.
8 In addition, the roadmap prov ided for a Green Paper to be published on the r ight to review of the
grounds for detention .
9 at is, the date by wh ich Member States must bring i nto force laws, regulat ions and admini strative
provisions necess ary to comply with t he Directive.
10 Directive 2010/64/EU of the Europ ean Parliament and of the Cou ncil of 20October 2010 on the Right
to Interpretatio n and Translation in Criminal Proc eedings.
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