ECBA Autumn Conference 2004, Maastricht, The Netherlands

8 - 9 October 2004

Theme: "Practical Defence in European Criminal Law" 

A REPORT FROM THE CHAIR OF THE CONFERENCE COMMITTEE, LOUISE HODGES

At the Autumn conference in Maastricht, the European Criminal Bar Association (ECBA) Committee aimed to design a conference that encouraged debate and dialogue amongst the delegates through a combination of workshops, lectures (For all contributions received in written please choose from the menu on your left) and feedback sessions. The conference started on the Friday afternoon with a welcome address by Han Jahae, Chairman of the ECBA and then a brief introduction from the Chairs of each of the workshops as follows: Stephen Gentle dealing with the right to silence; James MacGuill on the topic of expert witnesses and evidence; and Taru Spronken discussing access to legal advice, pre-trial detention and legal privilege. The three workshops ran simultaneously with delegates from a number of jurisdictions represented in each.
On the Saturday afternoon, representatives from each workshop gave a feedback of key issues and observations that arose. Stephen Gentle (England and Wales) confirmed that in all the countries represented, in law there is technically a right to silence, although in England and Wales this has been seriously eroded. Although the right is present in each jurisdiction, how it is exercised and the implications for exercising that right differs. The caution or warning throughout the EU is that you have a right to remain silent, however in England and Wales this caution continues, 'but it may harm your defence if you do not say when questioned anything which you will later rely on in court. Anything you do say will be taken down in evidence.'

Another substantial difference was when the accused received that caution. In Germany, Holland and France it was when the accused became a suspect, in Belgium it was when the client becomes involved in an investigation, and in England it was upon arrest. Although there is a right to remain silent in all jurisdictions (although explicitly eroded in English law) there is an implicit threat in other jurisdictions that exercising the right may have a negative affect in sentencing. Other topics that arose was the attitude to the defendant lying in court, the partial exercise to right to silence, the use of the 'oath' when giving evidence and the difference and frequency of confession evidence in the civil and common law jurisdictions.

George Gebbie (Scotland) reported back on the forensic science and expert evidence workshop and noted that the role of forensic evidence and the expert witness differed due to the different models of criminal justice. In some civil jurisdictions there was an implied judicial criticism of testing such evidence and he highlighted the example of Holland where all the experts worked for the same central laboratory and therefore the challenging expert evidence was generally frowned upon. This compares substantially to the adversarial systems in Scotland, England and Wales and Ireland where expert evidence would be put to the test rigorously. The status of experts also varied although it was a common theme that they all had to satisfy the court they had the credentials to be an expert. There was also discussion of the access to experts and the availability of experts. A common theme was the general lack of good experts for criminal defence work. During the general discussion it became clear that in some jurisdictions there is a movement away from any examination of expert evidence, with written reports deemed sufficient and no oral evidence required. The workshop had concluded one of the ways the ECBA could assist its members was by creating a forum to discuss expert witnesses and evidence so that we can discuss issues that arise, provide recommendations to our colleagues and also warnings of dangers in using a particular expert or field of expertise. The discussion board on the ECBA website can be used for this purpose and we will also be inviting members to join an email group to discuss taking these ideas forward.

Eve Giles (England and Wales) provided feedback on the workshop dealing with access to legal advice, pre-trial detention and legal professional privilege. She noted that in her own experience, having access to knowledgeable and reliable criminal lawyers through the ECBA has been invaluable in her recent cases. For example, a client who had been arrested pursuant to an extradition request from Holland was able to be pre-warned that on his arrival in Amsterdam he would not necessarily have access to a lawyer straight away, his lawyer would not be allowed to attend his interview or interrogation and that interview would not be tape recorded. This was very different from what he would have expected during an investigation in the UK. He knew that he had a right to silence which he was advised to exercise until he was able to speak to his Dutch lawyer (an ECBA member!). Topics discussed in the workshop included the provision of free legal advice on arrest, differences in rules of disclosure, recording of interviews, possibility to consult with a lawyer and the concerns of colleagues from civil jurisdictions that content of an interview could not be challenged if it was tape recorded. For example, in Germany there was a right to advice before interview but no right for a lawyer to be present at the interrogation. In Austria the suspects are not entitled to advice as of right unless the police interview exceeds one hour and when granted access the lawyer is not allowed to speak about the facts of the case during this interrogation. In Italy there is a right to consult with a lawyer, however confession evidence is only admissible if the solicitor is present.

The workshops and the debate that they stimulated were of great interest and assistance to all the delegates and we hope to continue this structure of conferences in the future.
On the Saturday morning, Professor Gerard Mols, Vice-Chair of the University of Maastricht gave a welcome address where he discussed the role of human rights in the EU and asked what are the common European values? He noted a worrying trend, where human rights which were once believed to be certain are now being undermined and he stressed it is defence lawyers who are at the front line to fight against such violations. The fear of terrorism and the strengthening of police powers has been at the expense of human rights.

We were delighted to have in attendance Caroline Morgan of the European Commissions Directorate General Justice and Home Affairs to speak about the draft framework decision on certain procedural rights in criminal cases. Caroline Morgan has been substantially involved in the drafting and discussions on the framework decision and the preceding green paper on procedural safeguards. She gave a succinct and informative overview of the framework decision and some of the issues and discussions that have arisen during its drafting. A detailed paper is provided on this website (click here). Dr. Holger Matt provided a response and set out the ECBA position. He noted that the promise of minimum standards as a pre-condition to new EU legislation that impacts on criminal justice systems has not been met. We are being asked to recognise decisions without these pre-conditions being secured which is a contradiction to the programme of mutual recognition. In the current draft framework decision most essential rights are not mentioned or are invisible. Minimum standards need to be established before any further framework decisions are ratified and must include rules on the exclusion of evidence if minimum standards and rights are not adhered to. Although we welcome the requirement for the provision of legal aid, this is irrelevant unless the amount of remuneration is sufficient to ensure a robust network of defence practitioners. There needs to be a right of examination, testing of evidence and disclosure of exculpatory evidence. Further we need to ensure legal professional privilege is upheld, the accused is at all times treated with dignity, the independence of legal representation is protected and there is a transparent right to bail. Caroline Morgan suggested a way forward for the ECBA to ensure the voice of the defence practitioner is heard is to make an appointment to see the new Commissioner, to become involved in the experts meetings by sending CVs and providing your credentials, to respond fully to the green papers and to lobby the Ministers of Justice in each of the EU countries so that they are aware of the relevance and significance of the safeguards proposed in the framework decision. Since April there has been a lot of negotiation. On the current timetable the next piece of legislation to be given priority is concerning bail. Then there will be draft documents dealing with the presumption of innocence, the gathering of evidence, disclosure (both prosecution and defence), rules of admissibility of evidence and special measures for terrorism. She also noted that the EU Constitution provided a clear basis for the EU to be able to legislate on defendants’ rights and therefore it was necessary for the ECBA to consider our position concerning the proposed constitution.

We were then pleased to welcome back Rob Blekxtoon who had spoken on the European arrest warrant at the Paris conference and was now able to inform the delegates of the joint ECBA/AGIS project on the European arrest warrant. Details are posted on this website (click here) but essentially the aim and scope of the project is to promote the uniform and transparent application of the surrender procedures based on the European arrest warrant in the 25 EU member states. It aims to foster the free exchange of information and the promotion of practical application and academic research. In particular the ECBA is involved in drafting a handbook and website link to provide up to date online and peer reviewed information on national implementation and application. Anyone who is interested in assisting in the project should contact Taru Spronken.
Taru Spronken and Robin Grey QC gave a lively presentation on the imposition of defence counsel in the Milosevic case and the right to a fair trial. The bullet points are available at this site (click here). Following a chronology of the events in the Milosevic case and the principals of the right to defence and a fair trail, Robin and Taru reviewed problematic situations, ethical questions and the responsibility of the defence counsel and introduced a few questions for debate. The key issue was counsel as an aid to a willing defendant or as an organ of the state. Following a comparative assessment of the Dutch and UK practices, problematic situations which may be solved by imposition of defence counsel were considered including obstruction of the court process by the defendant and the mental health or physical ill-health of the defendant. In the Milosevic case the defendant wants to exercise his right to defend himself but there appears to be concerns that the court is being used as a political platform, although we could not find any examples of where Mr Milosevic has manipulated the court process, only his health appears to be a problem. In the English system the fact he was only well enough to be able to run his own defence one day a week would probably be tolerated by the system. Robin identified occasions in the English justice system where the defendant was precluded from self representation, however this was generally only in limited circumstances dealing with the cross-examination of victims in sexual offence cases or child witnesses. Their conclusion was that an apparent representative of the defendant is, in fact, an organ of the state and in those circumstances they questioned whether ethically or professionally defence practitioners should feel compelled to accept such nominations.

David Corker then led a lively debate on the comparative virtues of the inquisitorial and adversarial systems in protecting the rights of the defendant. He discussed the dilemma that occurred in a recent case, where the prosecution had, by accident, disclosed matters which obviously should have been subject to a public interest immunity application for and should not have been disclosed to the defence lawyer. David Corker used this as a basis to discuss what the professional and ethical duties would be in different jurisdictions. For those who want to know how this matter concluded, the judgment from the Court of Appeal can be found at [link to relevant case - to be added].

The conference concluded with short reports from national delegates of recent developments in criminal law in their respective jurisdictions. Papers are available on the website for: Germany by Dr. Kai Hart-Hoenig, England and Wales by Robin Grey and Italy by Paola Balbo. We also heard from Richard Soyer discussing recent developments in Austria where they are facing a complete overhaul of pre-trial procedure. 200 of the 500 regulations are to be completely revised and it is anticipated they will come into force in January 2008, to give sufficient time for such substantial transformation to be adopted. The new rules will set out the relative responsibilities of the police, prosecution and judiciary when exercising justice. However, the rights of the defence are not considered in this overhaul of the law which is why Austria is looking to Europe and is hopeful that the framework decision on safeguards for defendants will provide a basis for such rights. As well as Austria there are many other countries who need the support of the EU to convince their own ministries of justice of the importance of defence rights and due process. We look forward to discussing these matters at the next Autumn conference in Vienna. Richard Soyer also provided a paper which can be located at www.ecba.org. Pascal Vanderveeren discussed the implementation of the European money laundering rules which came into effect in Belgium on 12 January 2004. This has brought with it an obligation for lawyers to disclose information which not only puts the defence lawyer in a difficult professional and ethical position, but affects all other lawyers who are now obliged to disclose if they have any suspicion of a client’s activities. The obligation not to inform this disclosure to the client puts each and every lawyer in an impossible position. The Bar of Brussels and other French speaking Bars have made a request in the arbitration court to look at the problem and consider circumstances where lawyers are obliged to do the opposite of what is their professional and ethical duty to their client. Further, he noted that there are other worrying changes in Belgium criminal law. Evidence is now being accepted that would not have been admissible five years ago. The law is extending powers for the prosecution and investigating magistrates and is increasingly allowing certain techniques of investigation, which would normally be limited to special applications to become generally applicable in criminal cases. Even the Supreme Court are allowing this situation to continue. The message appears to be the priority is protecting security while compromising the rights of the accused. The other trend is for the use of civil law as an additional or alternative sanction in criminal proceedings.

Olivier Gutkes produced the report for France and noted that since 1 October this year, French criminal law has seen a mini revolution. For the first time plea bargaining has been introduced and, although it may be usual in some other systems, it is regarded as totally at odds and alien to French judges and defence lawyers, although a welcome change for the prosecution. Many observers do not believe it is in truth plea 'bargaining' but purely a 'plea of guilty' as it does not appear the defendant will be provided with much of a 'bargain'. The introduction of the new system is designed to decrease the number of hearings in court. At the moment there are too few judges to deal with the volume of cases and Olivier reminded delegates who had attended the Paris conference that the courts had worked late into the evening on the Friday and a full day on the Saturday when we had been at the Palais de Justice, however even with this heavy work schedule the courts were not able to do the work required and it could take 5 to 7 years to get a case to court. The authorities have chosen to solve this problem by having cases heard by public prosecutors in private where the sanction is not more than 5 years, however the general belief is this will extend to all cases in the future. The plea bargaining can either be prompted by the public prosecutor or the accused and it is anticipated the sentence will be lower for a guilty plea. Throughout this procedure the defendant has to be represented by a lawyer. However, if a plea bargain is agreed it still needs to be referred to a judge for approval and, if authorisation is not forthcoming, the defendant will have to go to trial. Negotiating is not part of the culture of the French criminal system and it is anticipated that prosecutors will impose their will rather than negotiate and tell the defendants to either 'take it or leave it'. It was noted that in France an accused can be kept in custody for 48 hours for interrogation without the assistance of a lawyer or access to the file. It is believed the police will encourage the suspects to confess at this stage with the defendant put under pressure to plea bargain before disclosure and without a lawyer present. We look forward to hearing further about these developments at our next conference in Lisbon.

George Gebbie of Scotland then gave a very practical discourse on the European arrest warrant for suspects who are residing in Scotland. He noted that all such matters north of the border are dealt with in Edinburgh. In these circumstances he advised contacting the central authorities or viewing the website, whose details are as follows [available soon website address and telephone]. It is vital in these cases where time is of the essence, that practitioners appreciated the location of their client.

Annelies Röttgering gave a report in relation to Dutch criminal law. She noted that after a number of years with a liberal government, The Netherlands now has had a right wing government in power for the last few years and has a Ministry of Justice with a very instrumental view of criminal law. The law on terrorism has been substantially taken on board. There is a worrying trend of legislation introducing new crimes with very vague descriptions.

The government are planning to introduce acts dealing with terrorism and extending the laws on conspiracy. There are new procedural laws concerning taking accused into custody. There are also new rules of evidence relating to terrorism and the use of intelligence from secret services to be presented as evidence if it is in the national interest and, if necessary, without the presence of the defence. Such examination as allowed will be at a remote location or the evidence may only be available in writing. There are restrictions to calling witnesses and circumstances in which it is the prosecution who judge whether a witness should be called on behalf of the defence. There are fewer checks by authorities on pre-trial detention and less involvement by investigating magistrates regarding the searching of homes, making it a police domain. If a challenge is made to the admissibility of evidence illegally obtained, the Supreme Court have ruled that the defence need to detail precisely what rights have been offended, how their case has been prejudiced and how the judge should deal with it before a request of exclusion will be considered. Finally there is a recent case concerning the retention of records of privileged communications recorded by telephone tapping. The current situation is that such communications should be read to assess whether they are legally privileged and destroyed if this is affirmed. Suggestions that it should at least be an independent person who makes this assessment has not been conceded and it does not appear that the Ministry of Justice will change the current procedure.

Scott Crosby discussed recent developments in EU law in general. He confirmed the third money laundering directive is currently being discussed. The first directive produced in 1991 only related to financial institutions and did not introduce any new crimes. The second introduced in 2001 did start to approximate systems and required member states to apply sanctions concerning money laundering. Following 11 September 2001, the second directive became effective in December 2001 and increased the scope of persons covered, in particular lawyers, giving obligations to inform but preventing disclosure of this fact to their clients under the 'tipping off' provisions. Punishment for breaches of this legislation fell within the scope of national law. Implementation was due to be by 15 June 2003 although not all countries have incorporated the directives into their national law and infringement proceedings have been initiated. Throughout this programme there has been little feedback on how affective the subsequent national legislation has been. Now the third directive is being rushed through as a priority for the Dutch presidency. One of the main justifications for the haste is the fight against terrorism. The provisions include extending customer due diligence, extra-territorial reach and extending those who have reporting obligations. The new directive expressly states that money laundering shall be an offence under EU law and therefore the EU are assuming jurisdiction prior to the constitution being ratified. Finally he noted that in the EU there is a move to make legal persons criminally liable and risk fine, suspension or judicial winding up which is the corporate equivalent of capital punishment.

The conference was concluded with Han Jahae extending his thanks to all the speakers, delegates and individuals who had contributed to the Conference. The ECBA conferences are successful in both their content and value to the criminal practitioner and he looked forward to seeing all the delegates again in Lisbon on 29/30 April 2005 and suggested that each delegate took the responsibility to extend the breadth and depth of the participants attending by inviting one colleague to Lisbon and most importantly to invite colleagues from those jurisdictions who are not generally represented at the conferences.

We also extend our gratitude to the Mayor of Maastricht who invited us to attend the town hall for a reception on the Friday evening and Marie-Anne Sarlet for all her hard work in organising and administering the conference and, in particular, arranging such a wonderful meal at the restaurant at the Mabi Hotel on the Saturday evening.

We look forward to seeing you all in Lisbon in April 2005 and would be grateful if you could complete a conference feedback form which should have been sent to you.