Criminal Law Update – Rights – A Mere Illusion?

News Posted: October 28, 2019

Rights – A Mere Illusion?

The EU has published a report, ‘Rights in practice: access to a lawyer and procedural rights in criminal and European arrest warrant proceedings’, that details the extent to which fundamental human rights, in the context of criminal justice, are upheld across the EU.

Why is this important?

Protecting the rights of anyone suspected or accused of a crime is an essential element of the rule of law. Courts, prosecutors and police officers need to have the power and means to enforce the law – but trust in the outcomes of their efforts will quickly erode without effective safeguards to control how their powers are actually used.

What rights should be protected?

Such safeguards take on various forms. Everyone is presumed to be innocent until found guilty by a court of law. People have the right to remain silent and not incriminate themselves. They should be told why they are being arrested or what they are being charged with. They should also be told what their rights are, including that they have the right to a lawyer. In certain situations, people also have a right to interpretation and translation.

What were the findings?

Some of the key findings include:

  • The police inform defendants of their rights but practices vary. These range from written to oral information, including leaflets, which may be difficult to understand. Member States should ensure defendants properly understand what their rights are, and provide information in writing and orally as soon as they are a suspect. They should also pay attention to people who may have difficulties due to language or a disability, for example.
  • Very often defendants receive minimal or unclear information about the charges against them. This makes it difficult for them to defend themselves. The police should properly, clearly, and fully inform suspects of their crimes and why they were arrested, as soon as possible.
  • Receiving legal assistance promptly and directly does not also always occur, particularly for people that have been locked up. Member States should ensure all defendants receive prompt, direct and confidential access to a lawyer before they question jailed defendants.
  • Sometimes the police treat suspects as witnesses or informally question them. However, this deprives suspects of their right to remain silent and not to incriminate themselves. Member States should treat all suspects as suspects to respect their rights.

The report also looks at European Arrest Warrants that come from another EU Member State. As well as the issues above, defendants also face rights issues arising from having two countries involved.

  • Linguistic differences often make it difficult for defendants to understand their rights when it comes to warrants and their right to consent to be transferred abroad for questioning. Member States should provide translation and interpretation services so that defendants can fully understand the charges against them and what the European Arrest Warrant entails.
  • Defendants often have difficulties getting legal representation in both countries. This can be due to linguistic differences, as well as the police’s lack of knowledge about other countries’ legal systems and unwillingness to interfere in another country’s jurisdiction. Authorities in the country that process the warrant should help defendants get legal assistance in the country that issued the warrant. Member States could provide legal association lists when issuing the warrant.

The importance of lawyers

Our lawyers are trained to know your rights and perhaps more importantly, insist that they are upheld. We believe in proactive and robust defence, at every stage of the proceedings.

Whilst the UK fares well compared to some other EU countries, we can never be complacent, time and time again we come across cases where fundamental rights have been ignored, often to the great detriment of the suspect or defendant.

If arrested, suspects must avail themselves of free legal advice and assistance. We are only ever a phone call away.

How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, then get in touch with Andrew Holland (01743 237731 or or Kate Cooper (01743 237734 or and let us help. We can advise on all aspects of your case.

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