United Kingdom of Great Britain and Northern Ireland
Practice Relating to Rule 100. Fair Trial Guarantees
Section E. Necessary rights and means of defence
The UK Military Manual (1958) states: “In no circumstances whatsoever may [prisoners of war] be tried by a court … the procedure of which does not afford the accused the rights and means of defence laid down in Art. 105 [of the 1949 Geneva Convention III].”
The manual further states: “No prisoner of war may be convicted without having had an opportunity to present his defence and the assistance of a qualified advocate or counsel.”
In addition, the manual provides:
In any judicial proceedings against him, the prisoner of war is entitled to … defence by a qualified advocate or counsel of his own choice …
Defending Counsel must be given at least two weeks before the opening of the trial in which to prepare the defence of the accused. He must also be given all necessary facilities; in particular, he must be allowed freely to visit the accused and to interview him in private … The facilities are to remain available until the expiry of the time for appeal or petition against conviction.
With respect to situations of occupation, the manual states that the accused “have the right to be assisted by a qualified advocate or counsel of their own choice”, that the qualified advocate or counsel of the choosing of the accused “must be able to visit them freely and to enjoy the necessary facilities for preparing the defence” and that the “accused have the right to present evidence necessary to their defence”.
The UK LOAC Manual (2004) states in its chapter on the protection of civilians in the hands of a party to the conflict:
In the case of penal offences relating to the armed conflict, the basic principles of natural justice must be observed … These principles include the following: … the procedure shall … afford the accused before and during his trial all necessary rights and means of defence.
In its discussion on punishment of prisoners of war, the manual states:
In good time before the trial to enable him to exercise them, the accused must be informed of his rights to:
a. be assisted by a fellow prisoner of war;
b. be defended by a qualified advocate or counsel of his own choice;
The defending advocate must have at least two weeks before the opening of the trial for preparation of the defence. Up to the expiry of time for appeal or petition, he must be given all the necessary facilities including the following rights:
a. to visit the accused and interview him privately;
b. to interview defence witnesses, including prisoners of war.
In its discussion on the administration of criminal law in occupied territory, the manual provides that the accused “are entitled to … assistance by a qualified advocate or counsel of their choice who must be able to visit them freely and have all necessary professional facilities for preparation of the defence”.
In its chapter on internal armed conflict, the manual further states: “Indispensable judicial guarantees include as a minimum … adequate time and opportunity for the accused to prepare his defence.”
In 2003, during a debate in the House of Commons, the UK Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, stated:
On 3 July, the United States designated six detainees, including two British nationals held at Guantanamo bay, as eligible for trial under a military commission. We have strong reservations about the military commission. We have raised, and will continue to raise them energetically with the US. The Foreign Secretary spoke to the US Secretary of State, Colin Powell, about that over the weekend and will speak to him again in the next few days.
We understand that the Americans will nominate the defence lawyers in some way. We are seeking further information about that, too. The right hon. and learned Gentleman will forgive me if I do not go into much detail, but many aspects are a cause of concern to us and we intend to pursue them all.
One concern that we are pursuing with the Americans is that in our view, all the evidence concerning the case against these people must clearly be made available to them, so that they are in a position to rebut it.
We understand that the detainee does have the right to choose his own defence lawyer – if he meets the security requirements laid down by the Americans. However, it is clear that this matter will have to be checked out.
I think that the hon. Gentleman’s question concerns whether the Geneva convention should apply to the detainees, and I have already made it clear that, in our view, it should.
In 2003, during a debate in the House of Lords, the UK Minister of State, Foreign and Commonwealth Office, stated:
My Lords, from the outset, the Government have urged the United States Government to resolve the position of the detainees. The Government are currently making vigorous representations to the United States Government about the future of the UK detainees at Guantanamo Bay. These representations cover a range of issues, including the need for any trials of UK detainees to be fair and to accord with international law, as well as the possible return of the detainees to the United Kingdom of Great Britain and Northern Ireland. My right honourable friend the Prime Minister will raise this matter with the President of the United States in the course of his imminent visit to Washington.
My Lords, as I understand it, the United States proposes that individuals should be given an advocate chosen from a panel of military lawyers. If an individual does not want to go along with such an arrangement, there may be an opportunity for him to go to an alternative lawyer, but that lawyer will still be drawn from a panel of lawyers who have been vetted by the United States for security purposes. I understand that those are the proposals currently under discussion.
In 2003, in a reply to a written question in the House of Lords, the UK Minister of State, Foreign and Commonwealth Office, wrote:
However, in addition, the Attorney-General, who has represented the Government in discussions with the US Administration about the military commissions, issued a statement on 22 July, following the first round of talks. This included a reference to the question of legal representation. Part of the statement says “… the US has assured us that … Begg and Abbasi will be able to be represented by an appropriately qualified US civilian lawyer of their own choosing, subject to security clearance. A UK lawyer will be able to serve as a consultant on the defence team. Each detainee will be able to decide to what extent he wished the appointed military counsel to participate in the preparation of his case.”
However, in addition, the Attorney-General, who has represented the Government in discussions with the US Administration about the military commissions, issued a statement on 22 July, following the first round of talks. This included a reference to the question of communications between defendants and their lawyers. Part of the statement says “… the US has assured us that … exceptionally, conversations between Begg or Abbasi and his defence counsel would not be monitored or reviewed by US authorities.”
In 2003, in its fourth periodic report to the Committee against Torture, the United Kingdom stated:
Article 11 (Monitoring of procedures to prevent torture or other forms of ill-treatment)
Access to legal advice
101. In all parts of the United Kingdom, anyone subject to questioning by the police or attending the police station voluntarily has the right to consult a legal adviser and, as a general rule, to have a legal adviser present during interview. These rights are set out in the Code of Practice for the detention, treatment and questioning of persons by police officers (Code C) issued under the PACE [Police and Criminal Evidence] Act 1984 in England and Wales, in parallel Codes in Northern Ireland, and under the Criminal Procedure (Scotland) Act 1995. Under exceptional circumstances access to legal advice may be delayed, but powers to do this are only available under strict criteria.
105. The Terrorism Act 2000 also allows for access to a solicitor to be delayed for up to 48 hours from the time of detention in defined circumstances that apply throughout the United Kingdom. However, the power to delay access is used very rarely: the Government is not aware that it has been used at all in any part of the United Kingdom in recent years.
Right to silence
England, Wales and Northern Ireland
109. In response to the judgement of the European Court of Human Rights in John Murray v. United Kingdom, the Government introduced provisions prohibiting the drawing of inferences from silence where no prior access to legal advice has been granted. These were contained in the Youth Justice and Criminal Evidence Act 1999, and replicated for Northern Ireland at article 36 of the Criminal Evidence (Northern Ireland) Order 1999. Commencement of the provisions in England and Wales and in Northern Ireland will follow necessary revision of the PACE Codes. However, in both jurisdictions administrative arrangements have been in place for some time to ensure compliance with the judgement.
110. In Scotland, regardless of whether a legal adviser is present, no inferences can be drawn as to the credibility of the suspect’s evidence on any matter about which he declined to say anything while being interviewed, cautioned, or charged by the police.
Access to legal advice
England and Wales
263. As stated in the third report, in all parts of the United Kingdom, the rules governing prisoners’ contacts with their legal advisers are set out in prison rules and other internal instructions to Governors. The rules governing legal privilege apply both to convicted prisoners and prisoners on remand and are designed to safeguard their rights when contacting their legal representatives. All visits by legal advisers take place in the sight, but out of hearing, of a prison officer.
264. The Access to Justice Act 1999 brought in significant changes to the old Legal Aid Scheme. The Legal Aid Board was replaced by the Legal Services Commission (LSC), which administers the provision of publicly funded legal services. The LSC has issued new guidance on funding which is intended to make sure that cases which serve the public interest (especially those against public bodies) and those which serve the interests of justice, are funded, and frivolous actions are not. In addition, only legal firms with a contract with the LSC are able to undertake publicly funded work. The contracted firms are audited to ensure that they provide a quality service and can provide the level of professional skills and knowledge required.
In 2004, during a debate in the House of Commons, the UK Foreign Secretary stated regarding the trial of UK citizens detained in Guantanamo Bay:
Speaking specifically in respect of our detainees, we have said that the provision of legal advice is a necessary part of any fair trial system – it is almost a sine qua non. The detainees there have not received legal advice, even though one or two of them are in the trial system. That is the background to the recent appeal to the Supreme Court, and it has been one aspect of our disagreements with the United States Government about the fairness of the trial process offered. We have repeatedly said that British detainees should either be tried as soon as possible according to principles that are recognised to be fair, or be returned to the UK. That remains our position and it has been the subject of considerable discussion between ourselves and the United States ever since Guantanamo bay received British detainees.