In the beautiful location of Tallinn, Estonia the ECBA’s Autumn conference looked at the question of ‘Defence in a digital context’ and provided us with the opportunity to discuss the legal, practical and technical challenges faced by lawyers in criminal defence practice. One of the more startling statistics that emerged during the day was that 90% of the data in the world today has been created in the last two years. That alone emphasised how this topic is increasing in importance exponentially.
Defence in a digital context
Lauri Almann of VARUK Attorneys at law, BHC Laboratory discussed the topic of protecting attorney-client privilege against cyber threats. As former Permanent Undersecretary of the Estonian Ministry of Defence he has direct experience of dealing with cyber-attacks against Estonia. The lawyer’s obligation to keep client communications confidential is increasingly problematic when facing the silent and often invisible threat of cyber-attacks. Such attacks are increasing, with a broad range of potential protagonists: disgruntled clients, disenchanted employees, jealous competitors or state bodies. Practical guidance on how to deal with this threat was dealt with in the workshop ”Law firm cyber security: mission impossible or a walk in the park?” which advised on methods to stress test your systems, encryption of email communications and how to make such systems a selling point of your services.
Jaanus Tehver of Tehver & Partners took up the theme of “digital evidence outside cyber space: the implications of electronic data in ‘non cyber’ cases”. Traditionally digital evidence has been associated with high tech, cybercrimes however the reality is that digital evidence is relevant in all cases now and the issues related to handling digital evidence cannot be avoided. Defence lawyers need to know how the computers and devices that we use work on a technical level. Digital “facts” are not “facts” in the traditional sense and we need to understand how we can challenge this evidence.
In most criminal cases the defence usually begins from a disadvantaged position. The trend is for the prosecution to have a huge volume of digital data from which different conclusions can be drawn; interpretation is key. The prosecution has vastly more resources (time and money) to analyse and report on this data and since ‘experts’ or ‘specialists’ have been involved in the collection and analysis of evidence, frequently it is perceived by the judiciary that this is more reliable and therefore grounds to challenge its admissibility are limited or are dismissed as speculation. In addition, the defence has limited or no access to ‘original’ data and challenging the authenticity of copies is difficult. There is a disparity between the defence and prosecution in knowledge, training, access and technical resources. This balance needs to be addressed if there is to be any equality of arms.
The interaction between law and rapidly developing technology is forcing changes in well-established legal concepts (search and seizure rules, protection of privacy, etc.) and as a consequence lawyers must be familiar with case law and new theories in this field which may not necessarily be criminal law cases. The law is changing rapidly, but it is not changing to our favour.
The topics of electronic data preservation and collection and discovery of electronically stored information in litigation support was explored by Neil Swift of Peters & Peters, UK and Jan Balatka from Deloitte from the Czech Republic. They focused on internal investigations, looking at “Digital evidence and computer forensics: what lawyers should know about the tools of the trade?”
Finally we looked at recent developments and proposed reforms in relation to admissibility of digital evidence affecting the legal profession in the EU, looking at France, the Netherlands, Latvia and Norway.
In addition to the main theme of the conference, the delegates heard updates on various projects being conducted by the ECBA and like-minded organisations that we have been working with over the years.
Achieving Best Practice in European Arrest Warrant cases
Jodie Blackstock of Justice reported on the results of the joint ECBA, Justice and ICJ project Achieving Best Practice in European Arrest Warrant cases. The main methodology was questionnaires on EAW cases which were reviewed by the ICJ and follow up interviews conducted with defence lawyers, Ministries of Justice, Bar Associations etc.
Project aims were to:
• Identify the problems in the operation of the EAW scheme and in particular the need for dual representation.
• Link lawyers across the EU and enable dual representation to take place.
• Demonstrate to EU member states that changes to national law/the EAW framework decision are necessary.
• Demonstrate to the EU that support and funding for defence lawyers is necessary.
The full report is available at http://www.ecba.org/extdocserv/projects/EAW/JUSTICE_EAW.pdf
The main conclusions included the following:
Proportionality
• Issuing states are supposed to consider proportionality now but this is still not happening
• In some member states proper searches are not conducted for suspects and EAWs are issued too early
• Many cases result in short sentence which cause a disproportionate upheaval to the life of the individual and their family
• There is a prevalence of alternative return arrangements where representation was available in both the issuing and executing states.
Pre-trial detention
• Grounds, conditions and length of detention varies between members states
• There are often lengthy periods of detention once the individual is surrendered because the trial is not ready, despite the apparent urgency of return by using an EAW
(Please also see the report on the European Supervision Order below)
Effective defence
• Legal aid is varied – in some it is so low that only new or inexperienced practitioners take the cases
• In some member states legal aid will not cover some or all of the work required
• Most countries do not have a specialised system for EAW/extradition cases
• A substantial number of lawyers undertaking EAW cases are not sufficiently experienced to take the case
• The speed of the procedures compounds the problem in achieving effective defence
• There is limited training on EAWs available at a national level and no EU wide guide or training on the EAW in relation to defence
• Dual representation is critical in almost all cases but in most will not be obtained
Recommendations & what the ECBA plans to achieve
The ECBA propose to take the following recommendations forward in order to establish and improve best practice in EAW cases:
1. Provision of training for defence lawyers
2. EU-wide handbook as a quick guide that can be utilised by defence lawyers
3. Ensuring dual representation, which forms part of Measure C and must not be allowed to be negotiated out of the draft
4. A peer reviewed database to provide a network of experienced and credible criminal defence lawyers – to build upon the ECBA ‘Find a lawyer’ database
Additional recommendations include
5. Updating the SIS to remove withdrawn and refused alerts; to create a summons procedure
6. Providing appropriate interpretation and translation.
Anyone who would be interested in being involved in this important project should contact This email address is being protected from spambots. You need JavaScript enabled to view it.
ECBA Legal Aid project
Tom van de Laar, of CMS Derks Star Busmann reported on the ECBA Legal Aid project. As many of you will know, the European Commission is working on a directive on legal aid in criminal matters which will form the second part of Measure C and the ECBA project aims to provide the Commission with information to ensure that this directive provides effective legal aid to all. We cannot rely on the accuracy and reliability of official information provided by governments; we need to demonstrate how the different systems work in practice and the problems that are encountered by our clients when being represented under legal aid.
Questionnaires have been collated and an analysis of the results was provided to delegates. It is important that we build upon that database of information, and all members are encouraged to complete the questionnaire that can be found at http://www.ecba.org/extdocserv/projects/legalaid/ecba_legalaidquestionaire.xlsx
Our projects have a history of having a direct impact on procedural safeguards in the EU – the projects we have conducted in the past in partnership with many other organisations, universities and bar associations have ensured an EU wide letter of rights and developments in pre-trial criminal defence. We must build on this work to ensure that the voice of the suspect is heard.
European Supervision Order (ESO)
Alex Tinsley from Fair Trials International (FTI) spoke about the European Supervision Order (ESO) which is due to be implemented into national legislation by 1 December 2012. This is an important development in procedural safeguards for suspects and has been heralded as one of the measures counterbalancing the EAW by ensuring that non-nationals are not kept in pre-trial custody unnecessarily. It is therefore important that defence lawyers are familiar with the instrument, ensure it is used and monitor its success. An overview of the ESO is available on the ECBA website (click here).
FTI and the ECBA would like to hear from defence professionals to understand how this is being implemented in practice. Members are encouraged to keep us informed either by sending us an email to This email address is being protected from spambots. You need JavaScript enabled to view it. or to post information on the discussion forum on Linkedin.
Information of possible problems and solutions will be collated and shared amongst members, and will also be used to inform the Commission about how the instrument works in practice – if we do not provide this information, they will assume that everything is working well!
Members were reminded of other active ECBA projects, details of which can be found on the ECBA website together with contact details should you wish to become more actively involved: Anti-trust and criminal cartels, Money laundering,
Eulita joint project on interpretation and translation, ERA joint training project, procedural safeguards and in particular the working group on Measure C (right to access to a lawyer and legal aid).
The delegates were also informed that the creation of an EU public prosecutor (EPP) is under debate once again. The ECBA/CCBE have been invited to a working group on 26 November where we will discuss the proposal, which is being led by Peter Csonka at the European Commission sponsored by Commissioner Redding. We will report on this in future conferences and newsletters, but please let us know your views.
Future conferences: April 2013 Istanbul in Turkey; Autumn 2013, Venice.
Once again, we have chosen a location next Spring which demonstrates we are not just interested in member states, but have the whole of Europe in mind. The issue of citizens’ rights and the rights of defence lawyers is highlighted in Turkey but the problems exist in all member states. We hope to invite the future president of EctHR, Dean Spielman, one of the founding members of the ECBA to speak at the conference.
Report by Louise Hodges
