News from the European Parliament and its voting through of a Proposal for a Directive on provisional legal aid for suspects or accused persons.

On 18 May 2015 the European Parliament voted on a Proposal for a Directive on Provisional Legal Aid for suspects or accused persons*.

The text reinforces the link with Directive 2013/48/EU on Access to a Lawyer*, making it clear that the purpose of the Directive is to ensure the effectiveness of the right to a lawyer for all suspected, accused or requested persons, regardless of whether they have been deprived of liberty. The text also clarifies that there is no disparity between provisional and ordinary legal aid, and that the directive is applicable to all who have a right of access to a lawyer. The proposal, in its current form, would become an integral part of the package for a better access to justice and EU-wide minimum standards in criminal procedural rights, together with Directives 2010/64/EU, 2012/13/EU and 2013/48/EU (right to interpretation and translation, right to information, right to access to a lawyer*) and the forthcoming Directives on procedural safeguards for children** and on the presumption of innocence*.

The proposal respects the sovereignty of Members States and their right to assess the granting of legal aid on the basis of means and/or merits tests. It also provides the possibility for Member State to recover the costs incurred for the granting of provisional legal aid. However, this would only occur in exceptional circumstances and only if the person had intentionally provided false information on their personal financial situation. The original text provided that the Member States could potential recover costs if the eligibility criteria were not satisfied. There was therefore a concern that this might lead to a situation in which the right to legal aid could be waived for fear of having to subsequently reimburse the legal aid costs. The amended text now provides that Member States have to “ensure that the conditions attached to recovery of costs are clear and reasonable and take account of the specific financial situation of the suspect or accused person or the requested person.”

The European Parliament has introduced eligibility criteria for accessing full legal aid, providing greater legal certainty, and provisions relating to the effectiveness and quality of legal aid. This includes systems ensuring the quality of legal aid lawyers, a system of accreditation for example, as well as education and continuous professional training.

Last but not least, the text introduces a right to appeal a refusal of legal aid before an independent court. This right was not included in the Commission’s original proposal.

The proposal is now in trialogues (Parliament, Council and Commission) and it is expected to be discussed in plenary in December 2015.

*While the UK government has not opted in to this instrument, it may still impact on UK citizens under specific circumstances.

** The UK Government has not, at the time of printing, made a decision on whether to opt in or to opt out of this provision.