The uk still has one of the best legal aid systems in europe, says roger smith, as he calls on the government to protect it


Increasingly, we need to address the state of legal aid and other safeguards for defendants not only in this country but also throughout the EU.

The union is developing Europe-wide policies on police and judicial co-operation, mutual recognition of decisions, and minimum safeguards for defendants and suspects that need to concern us all. We should be particularly anxious that the European Commission is currently seeking to dilute the standards of the European Convention on Human Rights on legal aid.


Legal systems are at the core of national identities. Within the UK, for example, the Scots are pretty jealous of their autonomy. Within Europe, the common law countries of Ireland and the UK feel beleaguered by the civil law dominance of the rest. A major UK policy objective has been to see off any notion of a European ‘corpus juris’, a Europe-wide common legal code, in which its distinctive legal identity would be threatened.


Thus, the Council of Ministers steered a careful path when it decided at a 1999 meeting in Tampere, Finland, to develop a programme on justice and home affairs. Its aim was ‘mutual recognition of judicial decisions and judgments and the necessary approximation of legislation’. These worthy objectives required following the twin tracks of ‘co-operation between authorities’ and ‘judicial protection of human rights’.


The Tampere programme was going nowhere fast until the events of 11 September 2001. Then, with unprecedented rapidity, and with the British unusually leading the charge, the EU suddenly came up with a framework decision by the end of the year that required states to dismantle a whole raft of national safeguards to their extradition procedures. The end goal was to be enforcement in one country of an order by the judicial authorities in another. In other words, a Spanish judge could simply order the production of, say, a Chilean dictator against whom it had a case and who happened to be visiting another member state. In the interim, political intervention was to be removed (in our case, the role of the home secretary) and the request made direct from one judicial authority to another (in our case, usually to Bow Street Magistrates Court).


The rush for this provision was such that there was little time to consider safeguards for defendants and suspects. These were left for later. A preamble to the framework decision noted the application of human rights principles and some countries – including the UK, to its credit – required their courts to consider the provisions of the European Convention on Human Rights in making decisions. Thus, it is possible to raise the issue in the UK as to whether someone will get a fair trial, or might be subject to torture or inhuman and degrading treatment if surrendered to another country.



These are real problems. For example, the Court of Appeal in London has recently questioned whether evidence against a suspected terrorist in France was obtained by torture (ex parte Ramda [2002] EWHC 1278 (Admin)). French courts have proved equally reluctant to allow the surrender of alleged Basque terrorists to Spain.



Mutual recognition – as far as the rights of suspects and defendants are concerned – is based on the assumption that all EU states operate to the standards of the European Convention on Human Rights. The cases indicate that even the established members of the EU do not always do so. Indeed, there are judgments of the European Court of Justice indicating breaches of key articles of the convention in relation to defendants’ rights against 24 of the 25 member states in the three years from 2001. And the absence of Slovenia may be the consequence of the inertia of its lawyers rather than the vigour of its protections.


Development of procedural safeguards for defendants and suspects has now been split into a number of current initiatives – bail, serious fraud, double jeopardy and the commission’s own overall proposals. The latter cover a number of issues, including access to legal aid.


Alas, the consultation draft, watered down by member states from earlier versions, presents major problems. It exempts terrorism and serious crime from its scope (largely to placate the UK). It lacks precision in its drafting. Its proposals for monitoring and evaluation are weak. Most crucially, and outrageously, it actually states standards on legal aid that are explicitly lower than those in the European convention. It requires only subsidised ‘legal advice’, not legal assistance. It does not provide a general ‘interests of justice’ test for the grant of free legal aid but defines certain situations. It stiffens the convention test of ‘insufficient means’ to pay for legal aid with a test of ‘undue financial hardship’.


Despite the domestic crisis on legal aid, the UK still has one of the best systems in Europe. We need our government rigorously to defend the minimum standards of the European convention. Let us hope it will.


Roger Smith is director of the law reform and human rights organisation, Justice