Looking beyond legal traditions towards practical effective legal assistance

by: in Law
Law_blog_Anna_Pivaty Criminal defence

National laws or ‘legal traditions’ are not the main obstacle to realising the ideal of ‘effective legal assistance’ embedded in the EU procedural rights’ Directives. The resistance to realising this ideal originates mainly from the professional cultures of relevant actors, including criminal defence lawyers, and the contemporary discourses of managerialism, efficiency and, as of lately, austerity.

This is the central message of “Criminal Defence at Police Stations: a Comparative and Empirical Study”. The book is the result of an eight-year research project into the practical operation of legal assistance at the investigative stage of the criminal proceedings in England and Wales and the Netherlands. The study included extensive periods of immersion into the working lives of Dutch and English criminal defence lawyers. Its goal was to provide a nuanced and contextualised account of legal assistance at police stations, taking into consideration the broader influences of legal traditions, criminal justice policies and professional cultures.

Member States have often argued that broad interpretations of certain procedural rights is in stride with their ‘legal procedural traditions’. Active participation of a lawyer in suspect interrogations, for instance, is deemed to threaten the ‘truth-finding’ in the inquisitorial tradition. Providing early access to case-related information to suspects and their lawyers appears to contradict both the adversarial and inquisitorial traditions. In the adversarial tradition, parties are not supposed to know about each other’s case before the trial begins. In the inquisitorial tradition, there is strong fear that early disclosure of the investigation results to the suspect would contaminate the ‘truth-finding’.

Yet procedural traditions – and national laws mirroring these traditions - have limited relevance to the actual day-to-day professional practice of criminal justice actors, and namely, criminal defence lawyers. Certainly, lawyers do describe their work by reference to the ‘ideal’ concepts, which form the rhetoric of the procedural traditions. Dutch lawyers, for instance, describe their role as contributing to the ‘truth-finding’, and English lawyers - as participating in an ‘adversarial game’. Their daily working reality, however, is quite different. In their day-to-day business, lawyers across Europe face the obstacles of lack of money, asymmetrical power relationships (vis-à-vis other actors representing the ‘state’), and the need to cope with the emotional pressures of defending the ‘underdog’.  As a result, their professional cultures often develop in quite a different direction, than dictated by the rhetoric of the procedural tradition.

What is more, lawyers refer to national laws, which reflect the limitations (supposedly) imposed by procedural traditions, to eschew agency, or to deny the existence of professional choice in ethically challenging situations. For example, Dutch lawyers habitually say that the national law, which imposes limitations on their participation in police interrogations, does not ‘allow’ them to play an active role in such interrogations. However, one might also argue that this law is invalid, being in stride with the EU Directive 2013/48/EU. One might also argue that lawyers should not follow this law, because it undermines the foundations of their professional role, which is to protect the interest of their clients to their best ability at all times. Thus, the reasons why lawyers might take a ‘passive’ stance during interrogations are much more complex, than the existence of prohibitive laws. Often, lawyers choose to be passive for reasons, which emanate from a myriad of internal and external influences: such as the inherent power imbalances at the investigative stage, or the lack of remuneration to sustain a more ‘active’ role, to name just a few. The recent ‘efficiency’ turn in European criminal justice systems, which encourages speedy processing of criminal cases, inevitably acts to diminish the space available for the ‘counterargument’, and therefore for the exercise of ‘active defence’.

The alleged incompatibility of procedural rights with ‘national legal cultures’ or ‘procedural traditions’ is a trump card used by Member States to avoid a discussion about the ‘real’ reasons for the lack of enforcement of these rights. These reasons lie much deeper than the existing legislative frameworks. They relate, for instance, to the government policies on criminal justice, and the professional cultures (partly) formed under the influence of these policies. The European Union is well placed to stimulate an open dialogue with the Member States about the actual obstacles to the practical day-to-day enforcement of fair trial rights. Only then would the EU Directives on the procedural rights of suspects and accused persons in criminal proceedings become the ‘living reality’ across the European states.

  Originally published on fairtrials.org - more blogs on Law Blogs Maastricht