Access to a Lawyer

Debate between Jonathan Djanogly and Kelvin Hopkins

Wednesday 7th September 2011 Commons Chamber

[Mr Djanogly]

Indeed they do have systems that are below par, which is why we are keen for the measure to proceed across the EU. We will decide at a later date whether Britain opts in, subject to the negotiations that will take place. If my hon. Friend listens to what I have to say a bit further, he will hear how we propose to look at that process.

This is a good, practical idea that has delivered some notable results, provided that it does not put suspects at risk of less-than-adequate criminal proceedings. Such instruments of mutual recognition were never intended to operate on their own. It was intended that they should be supported by a series of criminal procedural rights, enforceable at EU level, that would build on the rights already guaranteed by the ECHR and provide additional reassurance that the rights were being given practical effect in all member states. These standards will not only protect British nationals when they are arrested elsewhere in the EU but will provide greater trust and confidence among the courts of all EU states that judgments handed down, which they may be expected to recognise, have been made on the basis of sound procedural standards.

Standards of procedural rights are high in the UK. The right of access to a lawyer, both before and during police interview, has been provided in England and Wales and Northern Ireland since the mid 1980s. A similar right was provided for in Scotland last year. However, despite the fact that we see value in the Commission tabling such a measure, we have considerable concerns about the detail of the directive and the impact its drafting would have on the UK’s criminal justice systems.

The procedural rights directives are intended to draw on the jurisprudence of the ECHR and to flesh out what those rights mean in practice. Certain provisions of the Commission’s proposal, however, go far beyond the minimum standards that stem from the convention. While there is no problem in principle with going beyond the standards of the convention if there are good practical and policy reasons to do so, we do not see such reasons in this case. On the contrary, we think that there would be some quite adverse and costly impacts on the ability effectively to investigate and prosecute offenders were the Commission proposal to be adopted.

Examples of that include the fact that the directive as drafted by the Commission may require access to a lawyer to be provided in some stages in the investigatory process where currently a lawyer is not provided, such as at a police search of a property or where a person’s fingerprints are taken when they are booked into a custody suite. We do not consider it necessary or proportionate to provide a lawyer in those situations.

In addition, the directive requires that a person should always be able to meet his lawyer face to face, whereas we provide, in some minor cases, for telephone access, which detained persons often prefer as it can mean that they are held for a shorter period as it is not necessary to wait for a lawyer.

[Kelvin Hopkins (Luton North) (Lab)]

The Minister has covered the point that I want to make. We permit defendants to telephone for immediate advice from a lawyer. It is quick, cheap, easy and very accessible for defendants.

[Mr Djanogly]

The hon. Gentleman makes a good point. That is exactly the case, and if it is to be under threat we should be concerned.

The directive also requires absolute confidentiality of meetings and communications between a lawyer and a suspected or accused person. While confidentiality of such discussions is of course a fundamental principle, there are some limited circumstances in which confidentiality should not be guaranteed. The most obvious example is where the authorities have reason to believe that the meeting or correspondence is being abused to further criminal activity. In such circumstances, which are exceptional but none the less extremely serious, the communications ought not to be privileged and the authorities might need to monitor them.

We also believe that member states should be allowed to derogate from other rights set out in the directive, in certain exceptional circumstances. For example, it might not be appropriate to allow a person in custody to contact a particular individual if the police might have reason to believe that he will ask that person to conceal or destroy evidence. The ECHR case law has been clear that restrictions can be imposed on access to a lawyer for an accused person if there are compelling reasons to do so.

We do not think that the drafting allows enough discretion for judges to decide case by case whether evidence should be admissible if it has been obtained in breach of any of the rights set out in the directive.