Where’s my lawyer? Making legal assistance in pre-trial detention effective Fair Trials’ 2016 study on pre-trial detention47 found that, despite laws that protect concepts such as detention as a measure of last resort, presumption of release, equality of arms and proportionality, there are systematic failures to implement these standards effectively in practice. Researchers observed proceedings in which judges made poorly-reasoned decisions to detain suspects unnecessarily, relying on minimal information. Judicial reasoning was often vague and formulaic, and failed to engage sufficiently with practical alternatives to pre-trial detention that can protect the investigation, limit the possibility of reoffending and ensure defendants’ presence at trial. Overview of 2016 findings Procedure: Defendants did not always have access to adequate legal assistance or sufficient access to case materials essential to challenging detention. Even where access was sufficient, lawyers typically did not have enough time to study the case materials prior to a hearing. Many lawyers perceived, and researchers were able to establish, that judges credited the arguments of the prosecution over those of the defence. In some cases, pre-trial detention was used for unlawful ends, such as in order to coerce a confession, or for punitive purposes. Substance: Human rights standards set out certain limited grounds for imposing pre-trial detention, but judges sometimes relied on unlawful grounds, such as exclusive or primary reliance on the nature of the offence, or flight risk-based evidence solely by foreign nationality. Reasoning was often formulaic and did not engage with the specific evidence in each case. In some countries, certain suspects including women and foreign nationals were disproportionately detained. Reviews: Because pre-trial detention is intended as an exceptional measure, regular reviews are necessary to ensure that detention remains justified. But reviews in practice did not always provide sufficient oversight. Defendants and/or their lawyers don’t always have a right to be present at review hearings. Decisions to detain are rarely overturned or even seriously questioned, and reasoning tended to be even more generic and formulaic than in the first instance. Detention was sometimes extended to protect the integrity of the investigation long after relevant The work we have undertaken with our partners over the past two years confirms that the findings from 2016 remain broadly pertinent today, even though since the publication of the report, Member States were due to have transposed and implemented the Directives on procedural rights of suspects and accused persons. This report highlights the potential of the Directives to reinforce key safeguards during the pre-trial detention decision-making proceedings, as well as the persistent problems across Member States that hinder the potential of the Directives to improve the fairness in pretrial detention decision-making. The key concerns are grouped by area in which, on paper, the Directives have the potential to bring change, provided they are effectively implemented by Member States. investigative tasks were complete. The frequency with which reviews take place varies widely between Member States, as does the average duration of pre-trial detention. Alternatives: Judges were often reluctant to use alternatives. Electronic monitoring and house arrest are increasingly available in many Member States, but these were seldom used due to their novelty and court actors’ lack of experience in administering them. As a result of a lack of data collection, access to bail information services or pre-trial risk assessments, training, investment and enforcement of alternatives to detention, judges and prosecutors lacked faith in the efficacy of alternatives and continued to rely instead on detention. Some examples of good practice exist and could be duplicated elsewhere. their rights to challenge pre-trial detention and of the rights that make this possible, in particular the rights to a lawyer (including free legal advice) and to access the case file. Section 1 addresses issues identified by partners regarding access to information about rights in detention. • Problems concerning the exercise of the right to access to a lawyer and legal aid are highlighted in section 2. When a person is detained prior to trial, their ability to participate in the preparation of their defence is dramatically impaired. With the prosecutor having the entire state machinery behind them, it is crucial that a defendant is provided with legal assistance from the earliest possible moment in proceedings. In particular, the early involvement of a lawyer is key to preparing for detention hearings, including developing counterarguments to pre-trial detention requests and advocating for release or alternative measures. • Knowledge of your rights is a precondition of being able to exercise them. In the field of pre-trial detention, it is key that suspects and accused persons are aware of 47 Fair Trials, A measure of last resort?, 2016, available at: https://www.fairtrials.org/sites/default/files/publication_pdf/A-Measure-of-Last-Resort-Full-Version.pdf. 13