I am in Colorado at the moment, and so you will forgive me if I again use cowboy metaphors to describe the latest actions of commissioner Reding. She has come riding down into the canyon (and there are plenty of those in Colorado), lassoed the horse rustling member states red-handed as they were trying to steal, and tied them up.I have mentioned before that the EU is introducing in piecemeal fashion new rights for suspects and defendants which will have to be implemented everywhere in the EU, the so-called minimum procedural rights. The right to interpretation and translation has just been passed, and has to be implemented into national law in 36 months. We had heard that the next basic right, the letter of rights, was being delayed because member states wanted it to apply to cross-border cases only, and not to national cases. That is the stealing that I just mentioned. It would have meant that a cross-border suspect would have received a letter of rights, but not a domestic suspect (assuming the country concerned did not already have a domestic letter of rights to hand out). It would have been absurd. But the draft legislation was published last week, and it turns out that commissioner Reding has had her way again. The letter of rights will have to be given to everyone.

The letter informs suspects of their rights on arrest – you know, after the sheriff has seized you and locked you up in the jailhouse. You might think that this is a pretty basic thing, and exists everywhere. But only 10 member states have a letter of rights, and in only one of those states does the letter inform suspects of their right to contact a lawyer after arrest. The letters of rights themselves vary from impenetrable recitals from the Code of Criminal Procedure to the two most acclaimed letters – that of Germany, which is translated into 48 languages, with the UK following with translations into 43 languages, including audio versions. In 20 member states, the right to remain silent is not communicated in writing at all, but only orally, and in two member states there is no statutory right to silence.

In the new draft directive, there is a model letter attached as an annex. It outlines four rights, as follows: ‘If you are arrested by the police you have the following rights: A to be informed of what offence you are suspected B to the assistance of a lawyer C to an interpreter and translation of documents, if you do not understand the language D to know for how long you can be detained.’ Regarding the assistance of a lawyer, the model letter says: ‘You have the right to speak to a lawyer before the police start questioning you – if you ask to speak to a lawyer, it does not make you look like you have done anything wrong. The police must help you to get in touch with a lawyer. The lawyer is independent from the police and will not reveal any information you give him without your consent. You have the right to speak with a lawyer in private, both at the police station and/or on the telephone. If you are not able to pay for a lawyer the police have to provide you with information about free or partially free legal assistance.’

You may wonder why it is necessary to have these new rights at all. First, there are articles 5 and 6 of the European Convention of Human Rights and the associated case law, which provide more or less the same rights. There is also the Charter of Fundamental Rights, turned finally into law by the Lisbon Treaty, where articles 6, 47 and 48 do the same thing. The big difference, though, is that the eventual implementation of the proposed new directive will enforce these rights for the first time in a harmonised way in national law, meaning that they can be enforced in national courts. This will save some of the time – years and years – that it takes to enforce similar actions in, for instance, the European Court of Human Rights after rights have been breached.

The member states say they are worried about costs. They are always worried about costs when it comes to defence rights, but never when it comes to additional benefits for the prosecution. That is true whether the complaint is about costs or anything else. For instance, the UK has taken the lead in opposing the minimum procedural rights for suspects and defendants – but has just recently signed up to something on the prosecution side which is optional, the European Investigation Order, which is supported by only a few member states, and will simplify cross-border police requests.

I am sure that there will be plenty of political infighting about the draft letter of rights legislation. But as citizens who might ourselves be arrested in another member state, we should gather on the side of the commissioner and yell out: ‘Yeehaw, charge!’

Jonathan Goldsmith is the secretary general of the Council of Bars and Law Societies of Europe (CCBE), which represents over 700,000 European lawyers through its member bars and law societies

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