In 2011, the European Commissioner for Justice unveiled proposals to strengthen the rights of criminal suspects across all the European Union. These provided, inter alia, that all suspects, whether EU citizens or not, should be assured of the right to see a lawyer and to have him/her present during police questioning.
Access to a lawyer had already been considered a fundamental human right by the European Court of Human Rights but this right had not been uniformly enforced across all EU countries for a variety of reasons. The European Commission wanted to ensure that this right was guaranteed to everyone within the member states, including non-EU citizens. Citizens of EU members would also enjoy such right no matter where they were in the EU. Suspects would, thus, be treated with equal fairness. After five years, it seems self-evident that the sooner our justice system was brought into line with the best practice being sought by the European Commission, the better. It is, therefore, most welcome that the Justice Minister has just announced that a Bill will be moved in Parliament to adopt this European-wide standard.
As the law stands now, suspects have the right to consult with a lawyer either in person or over the telephone before questioning but, importantly, not during the interrogation. Such a right will remain but the idea is to strengthen it by having the suspect’s lawyer present during the interrogation itself. The proposal will bring Maltese law into line with what the European Commission is calling for.
Thus, in future, suspects will, by right, have a lawyer present while they are being interrogated by the police or during a magisterial inquiry. However, the accompanying lawyers will not be able to intervene during the interrogation itself but will be permitted to make submissions at the end of the suspect’s questioning. The Attorney General has rightly stressed that suspects needed guarantees that their rights were being protected but this had to be balanced with the imperative needs of the police and the inquiring magistrate to carry out their work effectively. Thus, a lawyer would not be able, for example, to intervene during the interrogation to stop his client from replying to a question. They would not be permitted to speak, ask questions or make submissions until the interrogation proper is over.
The crucial purpose of the proposed law is to find the right balance between guaranteeing suspects’ rights to protection during interrogation and the concomitant needs of the State, in the form of investigators, prosecutors or the inquiring magistrate, as well as society and the victims of crime, for justice to prevail. Suspects under arrest would be made aware of their rights since if aperson renounces his/her right to legal assistance, such renunciation would be formally recorded, together with the circumstances under which such a choice had been made.
Some will surely ask whether these amendments tip the balance too far in favour of those suspected of wrongdoing while making the task of those responsible for bringing criminals to justice too difficult. There have been too many stories of violent policemen dealing with suspects. If the mere presence of a lawyer serves as a deterrent against such misconduct it would boost the country’s human rights credentials and protect those officers who go by the book.
On balance, any civilised country that subscribes to the notion that a suspect is presumed innocent until proven guilty would instantly agree with the introduction of the presence of suspects’ lawyers during the interrogation.