Ill-Advised Advice Opt Out
carolina bracken, 16 September 2011
Successive governments have been censured for ensnaring the UK in unwanted, unwarranted EU legislation. Given the vigour with which the country has repeatedly signed up to obligations of spurious merit, it is particularly disheartening to see the Government opt out of a Directive that has the potential to assist some of the country’s most vulnerable citizens.
The Directive in question is the robustly named ‘EU Directive on Access to a Lawyer in Criminal Proceedings and on the Right to Communicate upon Arrest’. Under its proposed terms, any person suspected of criminal activity in a member state would automatically have the right to legal representation during interrogation by the authorities. In addition, they would be entitled to have a legal professional assess the conditions in which they are being held.
Justice Minister Jonathan Djanogly justified the decision by arguing that the directive “would have an adverse effect on our ability to investigate and prosecute offences effectively”, and emphasised the “considerable concerns about the details of the directive and the impact its drafting would have on the UK’s criminal justice systems”.
However, given the nature of these reservations, the decision to opt out seems somewhat illogical. Although the minister emphasised that the UK has not ruled out opting in at a later stage, by withdrawing from the process now, the UK has excluded itself from all negotiations that will eventually determine the detail of the final text. Moreover, this approach undermines the Government’s professed strategy of using the negotiating power concomitant with membership to reform the EU from within. As Jodie Blackstock of Justice has stated: “The possible reasons to opt out simply do not stand up to scrutiny.”
By opting out of the Directive, the Government could deny UK citizens arrested abroad the protection of fundamental rights that they have come to expect in Britain. Head of policy at Fair Trials International, Catherine Heard, denounced the decision as increasing the risk of “further cases of injustice”, highlighting that “a third of our clients facing charges in other EU countries complain about poor access to legal advice”. The now well-known case of Andrew Symeou is a paradigm account of the excesses of the European Arrest Warrant, which compels the UK to fast-track British citizens for extradition, with minimal safeguards or legal recourse and no questions asked.
While the UK is paralysed in its efforts to bring its own citizens back home, it is also paradoxically shackled in its attempts to deport known offenders. The announcement of the opt out comes as new figures reveal that the number of EU citizens convicted of criminal offences in the UK has trebled over the last four years, soaring from 10,736 in 2007 to 27,563 in 2010. Based on results for the first seven months of 2011, more than 33,000 convictions are expected this year – some 100 convictions every day.
An EU citizen will not face deportation after conviction unless they receive a custodial sentence of more than two years. In addition, a probation service memo from 2007 highlighted that a new EU Directive could restrict this even further, permitting deportation only where offenders pose a “present, genuine and sufficiently serious threat” to society. Last year, just 1,480 EU citizens were deported from the UK, and it is unclear how many of these were removed as a result of a criminal conviction.
Moreover, the Government now risks eroding legal rights in the UK, as the Legal Aid, Sentencing and Punishment of Offenders Bill could remove the longstanding guarantee of face-to-face legal advice in a police station on arrest. The new regime could introduce automatic means testing, denying some people the right to have a lawyer present during police interviews, although the Bill does extend the provision of remote advice.
If the Government is to realise its commitment to fortifying basic fair trial safeguards at home and abroad, it should aim to improve general practice in Europe by exporting the traditionally exemplary standards of justice in the UK; it should not surrender its ability to influence the direction of important criminal justice policy at the EU level. Establishing minimum guarantees of legal representation throughout the EU-27 benefits not only EU citizens in this country, but UK citizens abroad. Opting out of the Access to a Lawyer Directive not only removes the UK from the negotiating table, but signals the country’s disapproval of the scheme. Given our knowledge of the catastrophes that ensue when legal safeguards are lacking, this is a position we would be unwise to take.