Last week, as the summer holidays drew to a close, I tried in vain to be funny. This week, I am back in my school uniform, hair brushed and in serious mode, because the EU is about to discuss an important piece of legislation - the right of access to a lawyer in criminal proceedings - which has been making its way through the legislative process for many months.
The EU institutions will discuss the draft law together, in what is called a trilogue (an EU coinage for what I think should be a trialogue; miss, miss, they’re using the wrong word!). The three institutions – European commission, European parliament, and council of ministers – have each reached their own position, and when there is disagreement, as there is here, they sit down together to agree a text. One of the most sensitive matters they will deal with in the draft law, so sensitive that it will be reached only after easier matters are out of the way, relates to possible derogations from the principle of confidentiality.
In a law which is intended to bring harmonised minimum standards to criminal proceedings around the EU, and in particular to the right of a suspect or defendant regarding access to a lawyer, the commission and the European parliament more or less agree that confidentiality between lawyer and client in criminal proceedings should be absolute. It is the council of ministers, in other words the national governments, which have come up with a text with derogations from an absolute principle. The wording agreed in the council of ministers’ General Approach says that there should be exceptions to confidentiality when '(a) there is an urgent need to prevent serious crime; or (b) there is sufficient reason to believe that the lawyer concerned is involved in a criminal offence with the suspect or accused person.'
The UK government, the cocky rebel in the class, always heckling the teacher and showing off rude-boy tattoos, and certainly not known for its friendliness to this proposed directive in the first place, has waded in with amendments. It believes that there will not be unanimity for an absolute defence of confidentiality, and so has proposed changes which it believes would nevertheless provide defendants with the necessary guarantees: first, that any material obtained pursuant to a derogation could not be adduced as evidence in criminal proceedings against the client; and, second, that a duty of confidentiality could only be deviated from following a duly reasoned decision by a 'judicial authority or another competent authority'.
This raises, with perfect pointedness, the dilemma that frequently faces the legal profession – in fact, faces everyone at different points (consider this a civics lesson) – as to whether to struggle for a principle in which you believe and maybe lose, or to give up on the perfection of the principle and struggle for the best that you think that is available, hoping for a better outcome than under the first option. This decision is always a matter of timing, and so the first question, even before the dilemma, is whether the bad-ass UK is proposing something too early, before the struggle has taken place. The organisation I represent, the Council of Bars and Law Societies of Europe (CCBE), has been clear in its pronouncements that the principle should be maintained in its absoluteness, and a number of member states – Spain and Italy, for instance – have agreed.
There are other important issues at stake beside this one, such as should the defendant have the right to meet a lawyer in person or only have the right to communicate with a lawyer?; should the right be restricted to allow only telephone advice at initial stages?; is the lawyer's presence necessary at evidence-gathering acts?; can the lawyer check detention conditions?; and should there be a distinction in the level of obligation to provide a lawyer on the basis of whether a person is deprived of liberty or not?
Come on, class, wake up: these issues are vital. The legislation will cover not only cross-border criminal cases, but domestic ones, too. In any case, standards set at EU level are frequently taken as the norm for national standard-setting. Should derogations from confidentiality be allowed in criminal law, they might be found creeping copycat into other areas of law, too.
School’s back! It’s time to pay attention again.
Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs