The aim is to provide a simple and accessible document throughout the EU detailing what can be expected on and after arrest; and what rights a defendant has in each of the member states.
It will enable not just someone accused of a crime, but anyone (such as members of the defendant’s family), to access independent information over the internet.
A standard template has been devised and national experts have been appointed to complete the fact sheets in a consistent manner. The fact sheets are likely to be entitled “Introduction to the criminal process” (see also “What information do the fact sheets contain?” on p 12).
An online tool
It is envisaged that the fact sheets will be accessible to members of the general public over the internet via the EU justice portal website. They will also be available in all official EU languages.
It is a vitally important project which the Council of Bars and Law Societies of Europe – Conseil des barreaux européens (“CCBE”) – successfully tendered for in late 2009.
The UK experts
The Bar Council has been overseeing the factsheets on behalf of England and Wales (Scotland and Northern Ireland have different experts and factsheets). We have been fortunate to have had the considerable help of Dr Nicola Padfield and Professor David Ormerod as our experts.
Although being practising criminal lawyers, we all think we know the law of our country well, it was a challenge to fit complex issues not only into everyday language but also within the strictures of a very tight word count: 7,000 words to explain the whole of the English criminal law and procedure. It proved surprisingly difficult to strike a balance between information and oversimplification, and to avoid misleading by omission.
Dealing with the fact that many criminal matters (such as those attracting a fixed penalty notice) never go near a court let alone end up as a contested trial presented another challenge.
Ultimately, the word count dictated that some areas where particular rules applied (for example terrorist provisions or private prosecutions) were omitted in favour of information of more general application.
Focus on the trial process
The EU Commission, aiming for consistency of approach throughout the region, preferred to focus on the trial process and to omit regulatory regimes.
When will the information go live?
The fact sheets on the rights of defendants is an initiative which follows in the wake of a similar scheme for victims.
The fact sheets on defendants’ rights were completed in April 2010, following a meeting of all of the experts of the EU member states in Brussels in February.
The final submission to the EU Commission by the CCBE of the completed fact sheets of all the member states – translated into English and French – will be in August 2010. It is anticipated that they will be available through the EU portal (visit the website http://europa.eu/index_en.htm) by the end of the year.
Amanda Pinto QC is a barrister at 5 Paper Buildings, a member of the International Committee of the Bar Council and the International Officer of the Criminal Bar Association
What information do the fact sheets contain?
The fact sheets will contain a summary of the different stages in each criminal justice system:
- “Getting legal advice” is divided into “at the police station” (including search and interview procedures), and “at Court”.
- “My rights during the investigation of a crime and before the case goes to court” explains the procedure used during and after criminal investigations and before the trial takes place, including pre-trial court appearances.
- “My rights in court” for England and Wales includes access to legal advice and interpreters and how the English trial system works in the magistrates, youth and Crown Courts.
- “My rights after the court makes its decision” deals with appeals, compensation for wrongful conviction and return to one’s own country.
- Finally there is a fact sheet on minor road traffic offences.
The fact sheets include answers to the following questions:
- Will the police ask me questions?
- Must I go to a police station?
- Am I free to leave the police station?
- What happens once I am arrested?
- What happens if I don't speak the language?
- Can I have a lawyer?
The answers are likely to vary from country to country, so having easy access via the internet to information about what is likely to happen and what rights one has, is likely to be both useful and reassuring.