The Background
The right of access to a lawyer for a suspect in police custody has long been recognised as a vital element of due process and the right to a fair trial in the criminal process. Basing itself primarily on the right to a fair trial, as guaranteed by Article 6 of the European Convention on Human Rights (ECHR), the European Court of Human Rights has built up a very substantial body of case law on the subject. This includes the right to be informed of the right of access, the point at which it is triggered, what it covers (including the right to communicate in private, and the right to have the lawyer present during police questioning) and the consequences for the fairness of a trial when the right is denied or restricted. Nevertheless, the Grand Chamber of the Court felt it necessary to return to the subject just a few weeks ago in a major judgment in Beuze v Belgium No.71409/10. The immediate context was some confusion that had developed around its earlier judgments, most notably in Salduz v Turkey No.36391/02 and Ibrahim v United Kingdom No.50541/08.
In Salduz, the Court seemed to take a robust view of the substance and status of the right of access. It declared that the right was absolute unless the particular circumstances of an individual case were such as to justify a restriction. The right could not be limited on a systemic basis through, for example, a generally applicable statutory provision. This was interpreted in some quarters, including some subsequent decisions of the Court itself (eg. Dayanan v Turkey No.7377/03), to the effect that generally prescribed restrictions on the right of access automatically constituted a breach of the accused’s right to a fair trial. In Ibrahim, the Court accepted that the existence of a statutory provision or rule of practice restricting access could not constitute a compelling reason to justify a restriction in any case. Nevertheless, it did not automatically follow that such restriction on the right of access rendered the subsequent trial unfair. Instead, a two-stage test must be applied to determine whether the restriction on the right of access would produce that result. First, the court should determine whether there was a compelling reason to justify the restriction in the individual case (bearing in mind that the existence of a binding statutory rule precluding or restricting access could not constitute a compelling reason). Second, the court must go on to consider the overall fairness of the proceedings in the individual case, taking account of the restriction on access. It may be that other procedural checks and balances in the process may be sufficient to offset any unfairness that might otherwise have flowed from the restriction.
The confusion engendered by the divergent interpretations was such that the Court felt it necessary to return to the matter in Beuze with a view to providing clarity, not just on the two-stage test, but also on the substance and scope of the right of access itself.
The Facts
The applicant in Beuze was questioned in custody by the Belgian police for four hours, followed by an investigating judge for one hour, on suspicion of murdering his girlfriend. In accordance with Belgian law (as it was at the time), he was not given access to a lawyer during this preliminary questioning. The applicant admitted being present at the scene of the murder, but he denied involvement in it. Nevertheless, he was charged with the murder and was remanded in custody where he was subjected to further questioning and investigation by the police and investigating judge on several occasions. Although he was afforded the services of a lawyer at some point after remand, Belgian law (as it was at the time) precluded the presence of the lawyer during the periods of questioning and during the applicant’s participation in a reconstruction of the murder. The applicant maintained his innocence throughout, but also changed important aspects of his account on several occasions in a manner that undermined his credibility. He was eventually convicted of the murder (and the attempted murder of another former girlfriend). He sought to challenge his conviction on the basis that the restriction on his access to a lawyer under Belgian law entailed a breach of an essential formal requirement directly affecting his defence rights, as a result of which the questioning and reconstruction record should be “annulled” and the prosecution case declared “inadmissible”. The key question for the European Court of Human Rights was whether the restrictions on access imposed by Belgian law constituted a breach of the Article 6 ECHR right to a fair trial. In addressing that question, the Court basically re-affirmed its two-stage test in Ibrahim. However, it also reinforced the status and substance of the right, and it provided further valuable clarification on the application of the two-stage test.
The Court’s Decision
The Court confirmed that the right of access to a lawyer for a suspect in police custody constitutes one of the fundamental features of the right to a fair trial. Commencing at the point of arrest (or earlier in some circumstances), it plays a vital role in contributing to an equality of arms between the suspect and the State, and in preventing a miscarriage of justice. The Court emphasised that prompt access is an important counterweight to the suspect’s vulnerability in police custody; a vulnerability which is amplified by the increasingly complex legislation on criminal procedure and the rules on the gathering and use of evidence. The right of access is also preventive in that it provides a fundamental safeguard against coercion and ill-treatment of the suspect in custody. One of the lawyer’s main tasks at the custody and investigative stage is to ensure respect for the suspect’s right not to incriminate himself and for his right to remain silent.
On the substance of the right itself, the Court explained that the suspect must be able to engage with his lawyer from the moment of arrest. This includes the right to consult prior to interview. The lawyer must be able to confer with his client in private and take confidential instructions. Critically, the suspect also has the right to have his lawyer present during police interview and when being questioned in pre-trial investigation. The lawyer must be able to give assistance that is practical and effective. Depending on the circumstances of the case, this may require the lawyer having the right to access the criminal case file at the earliest stages of the proceedings, and to participate in investigative measures involving the suspect (such as identity parades or reconstructions). These aspects can play a crucial role in determining whether the lawyer has been able to give assistance that is practical and effective.
Nevertheless, it does not automatically follow that restrictions on the right of access render the subsequent trial unfair. The two-stage test must be applied to determine whether they would produce that result. For the purposes of the first stage, the Court set a high bar for what might constitute compelling reasons to justify a restriction on access. It said that restrictions would be permitted only in exceptional circumstances and they would have to be of a temporary nature. They must also be based on an individual assessment of the particular circumstances of the case, as distinct from generally applicable measures. An example would be where the government has convincingly demonstrated the existence of an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person.
The Court confirmed that the absence of compelling reasons for the restrictions does not automatically mean that the right to a fair trial has been breached. The overall fairness of the proceedings will have to be evaluated (the second stage). In doing so, however, the court must apply a very strict scrutiny in its assessment. The absence of compelling reasons for the restriction will weigh heavily in the balance and may tip towards finding a violation. The onus will then be on the State to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the proceedings was not irretrievably prejudiced. Where access is delayed in a case where the suspect was not informed of his right or other Article 6 rights (right to silence and privilege against self-incrimination), it will be even more difficult for the State to show that the proceedings were fair.
The Court provided a non-exhaustive list of factors which it should be taken into account, where appropriate, in determining the impact of the restriction on the overall fairness of the proceedings. These include: whether the person was particularly vulnerable (due to age, mental capacity etc); the legal framework governing pre-trial proceedings and the admissibility of evidence at the trial (where an exclusionary rule was applied, it is highly unlikely that the proceedings as a whole would be deemed unfair); the quality of the evidence and whether the circumstances in which it was obtained cast doubt on its reliability or accuracy; the nature of the suspect’s statement (where applicable) and whether it was promptly retracted or modified; the use to which the evidence was put, relative to the other evidence in the case; whether the determination of guilt was made by professional judges or laypersons, and the guidance given in the case of the latter; the weight of the public interest in the investigation and punishment of the offence in issue; and other relevant procedural safeguards afforded by the domestic law and practice.
The Court’s application of the two-stage test on the facts of Beuze is also instructive. The Court had no difficulty in finding that the restrictions were extensive and had no compelling justification, as they followed directly from the application of Belgian legislation. On the second stage, the Court concluded that the procedural safeguards provided by Belgian law (access to a lawyer after questioning and the adversarial nature of the ensuing proceedings) did not have a sufficient compensatory effect in practical terms to render the proceedings as a whole fair. Interestingly, it reached this decision despite the fact that it was satisfied that the applicant was able to express himself freely during the questioning and did not make a self-incriminating statement. There were a number of features in his case which, in combination, led the Court to its conclusion. Although the applicant had not made an incriminating statement with respect to the murder, the statements that he did make, without the benefit of legal advice, substantially affected his position. Not only did they place him at the scene of the crime, undermine his credibility and contribute significantly to his conviction for the attempted murder of another former girlfriend, but they also influenced the police line of questioning and the framing of the subsequent indictment. The Court noted that the jury was not given any specific guidance on the weight to be attached to his statements, even though they had been obtained without the benefit of legal assistance. It considered that omission to be a major defect in the fairness of the proceedings. The Court also emphasised that the applicant’s information rights in police custody (the right to be told of his rights of access, silence and non-incrimination) assumed an added importance where he did not have access to a lawyer. In this case, the Court found that the information given to the applicant was not sufficient to guarantee the effective exercise of the vital Article 6 rights. Taking all of these aspects into account, the Court concluded that there had been a breach of the applicant’s right to a fair trial.
The Court’s finding that the Article 6 right to a fair trial was infringed by the restriction on access to his lawyer does not automatically result in the quashing of the applicant’s conviction. In such cases, the Court merely declares that the applicant’s Article 6 rights have been infringed and, if appropriate, awards him a modest sum in compensation. It is then a matter for national law to determine whether the finding will result in the quashing of the conviction. However, if the conviction is so quashed and a new trial ordered, it is highly unlikely that the evidence obtained from the accused while denied the benefit of legal assistance could be admitted against him without jeopardising the fairness of that second trial.
Conclusion
The decision in Beuze is valuable for highlighting the substance, scope and fundamental importance of the suspect’s right of access to a lawyer while in police custody. Particularly noteworthy is the emphasis on the presence of the lawyer during questioning and other investigative acts involving the suspect, and on the importance of the lawyer having access to the criminal case file where that is appropriate to ensure that the assistance is practical and effective. It is also worth noting that a restriction on access can taint the overall fairness of the proceedings even though the accused did not make an incriminating statement without the benefit of legal advice. Nevertheless, it is unlikely that the decision in Beuze will stem the flow of cases arguing that a restriction on access has rendered the whole proceedings and subsequent conviction unfair. By retaining its two-stage test, the Court has left the door open to the possibility of evidence obtained from an accused in breach of his right of access being used to his prejudice at his trial. A more absolute rule to the effect that the right to a fair trial is breached by restrictions not justified by compelling reasons would have brought greater clarity for the law and some measure of European uniformity on the substance and status of the right of access to a lawyer for a suspect in police custody. Indeed, it may well be that the focus will now move on to how Member States of the EU are implementing Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings (the UK, Ireland and Denmark are not participating in that Directive).