15 Procedural rights in criminal proceedings
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9318/04
COM(04) 328
| Draft Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union
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| Legal base | Article 31(1)(c) EU; consultation; unanimity
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| Document originated | 28 April 2004
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| Deposited in Parliament | 10 May 2004
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| Department | Home Office |
| Basis of consideration | EM of 20 May 2004
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| Previous Committee Report | None; but see (24282) 6781/03: HC 63-xix (2002-03), para 11 (30 April 2003) and HC 63-xxvi (2002-03), (25 June 2003)
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
15.1 Early in 2003 the Commission issued a Green Paper on procedural
safeguards for suspects and defendants in criminal proceedings
throughout the European Union. The Commission argued in its Green
Paper that a standard set of procedural safeguards for suspects
and defendants was necessary in order to ensure mutual trust and
confidence between Member States' legal systems, on which the
principle of mutual recognition endorsed at the 1999 Tampere European
Council was based.
15.2 We considered that Green Paper on 30 April 2003.
We agreed with the Government that any measures adopted at EU
level in the field of criminal procedure should be limited to
cases with a cross-border element so as to promote mutual recognition
and enforcement. We did not see any justification for wider measures
aimed at criminal procedure generally and considered that any
such measures would be likely to infringe the principle of subsidiarity.
We took the view that adequate procedural safeguards should be
provided for in each case where a specific Framework Decision
or other measure was adopted in the field of mutual recognition
in the criminal law.
15.3 We again considered the harmonisation of criminal
procedure at EU level in our Report of 25 June 2003 on the proposals
of the Convention on the Future of Europe on criminal justice.
We did not consider that there was sufficient justification for
any generalised harmonisation of rules of criminal procedure in
the EU and emphasised that any harmonisation should be limited
to achieving such minimum standards as were necessary to secure
mutual recognition of judgments and decisions in particular cases
and should complement the existing procedural guarantees provided
by the European Convention on Human Rights (ECHR).
The draft Framework Decision
15.4 In its Explanatory Memorandum to the proposal
the Commission recalls the results of the consultation it conducted
on the Green Paper and its reasons for concentrating on minimum
standards in a limited number of areas "at this first stage".
15.5 As regards the consultation process, the Commission
refers to a "great deal of support" from legal practitioners
and non-governmental organisations for its proposals, but says
that the views of Member States ranged from support to opposition.
The Commission notes that Ireland took the view that the Green
Paper sought to introduce obligations which would apply internally
in each Member State and that this was outside the scope of Article
31 EU and breached the principle of subsidiarity. The Commission
summarises the views of those Member States which were opposed
to the Commission's proposals as being based on reasons of subsidiarity,
concerns over the legal base, "the fear that common minimum
standards could result in a general lowering of standards",
the argument that common minimum standards have already been set
under the ECHR so that no further action was needed, and the fear
that implementing the proposals would be technically difficult.
15.6 The Commission explains that it chose to make
proposals on the five areas of access to legal advice, access
to interpretation and translation, measures to protect those not
capable of understanding the proceedings, communication with consular
authorities, and notifying suspects of their rights because these
rights were of particular importance in the context of mutual
recognition, "since they have a transnational element which
is not a feature of other fair trial rights". The Commission
emphasises that its draft Framework Decision is only a "first
step" and that other measures are envisaged over the next
few years. The Commission explains that it has already started
to examine the need for "safeguards relating to fairness
in obtaining, handling and use of evidence throughout the EU".
It also indicates that the rights stemming from the presumption
of innocence, including the right to silence, the right against
self-incrimination and the rules governing the burden of proof
"will also be examined".
15.7 Article 1 determines the scope of the proposal.
It is to apply to "all proceedings taking place within the
European Union aiming to establish the guilt or innocence of a
person suspected of having committed a criminal offence, or to
decide on the outcome following a guilty plea in respect of a
criminal charge". The Commission's explanatory memorandum
points out that no distinction is drawn between EU nationals and
those from third countries, since "to offer one group better
protection could lead to criticisms of discrimination that would
defeat the aim of enhancing trust between the Member States in
each other's criminal justice system". The Commission does
not draw attention to the fact that the proposal would apply also
to purely internal cases involving nationals of the Member State
of trial, where no issue of recognition in another Member State
arises.
15.8 Article 2 sets out a right to legal advice.
It provides that a "suspected person" (defined in Article
1 as a person who is informed by the competent authority of the
Member State that he is suspected of having committed a criminal
offence) is to have the right to legal advice "as soon as
possible" and throughout the criminal proceedings. A suspected
person is also to have the right to receive legal advice before
answering questions in relation to the charge.
15.9 Article 3 requires Member States to ensure that
legal advice is available to any suspected person who is remanded
in custody, or is the subject of a European Arrest Warrant or
extradition request, or who is a minor.[36]
Legal advice must also be made available where the person is
formally accused of a criminal offence which involves "a
complex factual or legal situation or which is subject to severe
punishment, in particular where, in a Member State, [there is
a] mandatory sentence of more than one year's imprisonment"
for the offence, and in the case where the accused "appears
not to be able to understand or follow the content or the meaning
of the proceedings owing to his age, mental, physical or emotional
condition".
15.10 Article 4 requires Member States to ensure
that "only lawyers as described in Article 1(2)(a) of Directive
98/5/EC" are entitled to give legal advice in accordance
with the Framework Decision[37]
and to ensure that a mechanism exists to provide a replacement
lawyer if the legal advice is found not to be effective.
15.11 Article 5 requires the cost of the legal advice
provided under Article 3 to be borne in whole or in part by the
Member States "if these costs would cause undue financial
hardship to the suspected person or his dependants". Article
5(2) permits the Member States to carry out subsequent enquiries
to ascertain if the suspected person's means would allow him to
contribute towards the cost of the legal advice.
15.12 Articles 6 to 9 are concerned with interpretation
and translations. Article 6(1) requires the Member States to
ensure that a suspected person who does not understand the language
of the proceedings is "provided with free interpretation
in order to safeguard the fairness of the proceedings".
Article 6(2) requires Member States to ensure that "where
necessary" a suspected person receives free interpretation
of legal advice, and Article 6(3) makes clear that the right to
free interpretation extends to persons with hearing or speech
impairments.
15.13 Article 7 requires Member States to ensure
that free translations of all relevant documents are provided
to any suspected person who does not understand the language of
the proceedings. Article 7(2) provides that it is for the competent
authorities to decide which documents need to be translated, but
that the suspected person's lawyer may ask for translation of
further documents.
15.14 Article 8 requires Member States to ensure
that translators and interpreters are sufficiently qualified and
that a mechanism exists to replace the translator or interpreter
whose work is found to be inaccurate. Article 9 requires an audio
or video recording to be made where proceedings are conducted
through an interpreter in order to ensure "quality control",
with a transcript to be provided to any party in the event of
a dispute.
15.15 Articles 10 and 11 are concerned with a "right
to specific attention". Article 10 provides that such attention
must be given to any suspected person who, by reason of his age,
mental, physical or emotional condition, cannot understand or
follow the content or the meaning of the proceedings. The content
of "specific attention" is not fully defined, but Article
11 provides that an audio or video recording must be made of any
questioning of suspected persons, with a transcript provided in
case of dispute. Member States are also required to ensure that
medical assistance is provided where necessary. Article 11(3)
provides that, "where appropriate", specific attention
may include the right to have a third person present during any
questioning by police or judicial authorities.
15.16 Article 12 institutes a "right to communicate".
It provides that a suspected person who is remanded in custody
has the right to have his "family, persons assimilated to
his family or his place of employment" informed of the detention
as soon as possible. Article 12(2) provides that the competent
authorities may communicate with such persons by using any appropriate
means, "including consular authorities if the suspect is
a national of another State and if he so wishes".
15.17 Article 13 provides that a non-national detained
suspected person is to have the right to have the consular authorities
of his home State informed of his detention and to communicate
with his consular authorities. Article 13(2) provides that, in
the case where a suspected person does not wish to have the assistance
of the consular authorities of his home State, the assistance
of a "recognised international humanitarian organisation"
is to be offered instead. Article 13(3) provides that a long-term
non-national resident of an EU Member State is to be entitled
to have the assistance of the consular authorities of the State
of residence if he has "good reason" for not wanting
the assistance of the consular authorities of his State of nationality.
15.18 Article 14 provides for the issue of a "Letter
of Rights" informing the suspect of the procedural rights
which are "immediately relevant". The rights so specified
are to include the rights provided for under the Framework Decision.
Member States are to ensure that a standard translation of the
"Letter of Rights" exists in all Community languages
and that police stations keep copies so as to be able to offer
an arrested person a copy in a language he understands. Article
14(4) provides for Member States to require that both the law
enforcement officer and the suspect (if he is willing) sign the
Letter of Rights to show that it has been offered, given and accepted.
The law enforcement officer is to keep a duplicate copy with
the other signed copy being retained by the suspect.
15.19 Article 15 provides for evaluation and monitoring
to be carried out under the supervision of the European Commission
which shall co-ordinate and publish reports. Article 16 requires
Member States to keep statistics and make them available on a
range of matters relating to criminal proceedings. These include
the total number of persons questioned in respect of a criminal
charge, the number of persons charged with a criminal offence,
whether legal advice was given and in what percentage of cases
it was given free or partly free, the number of persons questioned
in respect of a criminal offence and whose understanding of the
language of proceedings required an interpreter, with a breakdown
of nationalities and a record of the number requiring sign language
interpretation. Similar statistics are required to be kept in
relation to requests for consular assistance, for translations
and for "specific attention", as well as the number
of Letters of Rights issued, with a breakdown of the languages
in which these were issued.
The Government's views
15.20 In her Explanatory Memorandum of 20 May 2004
the Parliamentary Under-Secretary of State at the Home Office
(Caroline Flint) explains that the Government broadly supports
the proposal, as it considers minimum standards for procedural
safeguards to be beneficial in enhancing mutual trust and confidence
in the justice systems of Member States. The Minister also states
that common minimum standards would provide increased clarity
to EU nationals (including UK nationals) as to their rights in
criminal proceedings throughout the EU. The Minister adds that
the Government has some concerns regarding specific details of
the text and will be seeking to clarify them during its consultation
process and to amend the text if necessary during the negotiations.
The Minister notes that the implications of the proposal will
vary within the UK, given its differing systems for criminal proceedings,
notably in Scotland.
15.21 On the question of subsidiarity, the Minister
refers to the Commission's view that only action at EU level can
be effective in ensuring common standards. The Minister adds
that the issue of subsidiarity is referred to in the Commission's
impact assessment, where the Commission has stated that any proposals
"will take into account national specificities". The
Minister concludes that the proposed Framework Decision complies
with the principle of subsidiarity.
15.22 On the substance of the proposal, the Minister
notes that it focuses on rights of access to legal assistance
and representation, the provision of interpretation and translation
services, the protection of vulnerable groups, consular assistance
and a written notification of rights. The Minister comments that
the Government believes that safeguards within these areas are
important for ensuring fair treatment of suspects and defendants,
that the UK sets high standards in this respect and that there
would be little or no need for further legislation to implement
the proposals. The Minister nevertheless points out that some
of the proposals may have policy and cost implications.
15.23 On the question of interpretation and translation,
the Minister explains that in England and Wales a National Agreement
on the attendance of interpreters in investigations and proceedings
within the criminal justice system provides a standardised procedure
for police and courts to arrange for interpretation and has led
to the creation of a National Register of Public Service Interpreters,
and that a Diploma in Public Service Interpreting or an equivalent
qualification is required before an interpreter can be accepted
on the register. The Minister adds that the Government considers
that the provision of appropriate interpretation and translation
assistance is central to allowing EU citizens to understand and
exercise their rights when subject to criminal proceedings in
another Member State, but that the Government may seek clarification
of what relevant documents should be translated.
15.24 On the question of protection for persons who
cannot follow or understand the proceedings owing to their age,
mental, emotional or physical condition, the Minister notes that
vulnerable persons are identified in the Police and Criminal Evidence
Act 1984 (PACE) and the Codes of Practice issued under the Act
(or in Northern Ireland under the Police and Criminal Evidence
Order 1989) for the treatment and detention of suspects in police
custody. The Minister comments that the fair treatment of vulnerable
persons is essential for allowing confidence in any criminal justice
system, that the UK has high standards in this regard and that
the Government is content with this part of the Framework Decision.
15.25 On the right to communicate with consular authorities,
the Minister states that the Government recognises the importance
of foreign detainees receiving appropriate consular assistance
and that this is recognised in existing practice in the United
Kingdom. The Minister explains that the UK can support this provision
in general, but notes that the exercise of such rights may be
delayed under certain circumstances (set out in PACE Code C Annex
B) which include the case where a person is arrested under the
Terrorism Act 2000. The Minister adds that the Government will
be considering the policy implications of the proposal in relation
to such circumstances.
15.26 On the Letter of Rights, the Minister notes
that PACE already provides for the giving of a letter of rights
to all detainees in England and Wales. The Minister points out
that the proposed EU Letter of Rights must outline a person's
rights under the national legislation of the particular Member
State, as well as rights under EU law, and that the Government
will be considering the cost implications of this provision.
15.27 On the question of evaluation and monitoring,
the Minister confines her comments to stating that the Government
is "currently consulting with all interested parties to consider
whether the mechanism and the proposed areas of data collection
are necessary and compliant with agreed common minimum standards".
Conclusion
15.28 Much of the substance of this proposal does
no more than re-state the effect of case law under Article 6 of
the European Convention on Human Rights (ECHR) and, in that respect,
is not objectionable. However, a serious question arises as to
whether this should be done at EU level, given the existence of
the ECHR, which already guarantees the right to a fair trial in
the countries which are party to the ECHR.
15.29 When we commented on the Green Paper we
took the view that any measures at EU level in the field of criminal
procedure should be limited to cases with a cross-border element
so as to promote mutual recognition and enforcement of judgments
and decisions. We saw no justification for wider measures aimed
at criminal procedure generally, and said that we would regard
any such measures as likely to infringe the principle of subsidiarity.
We note that Ireland has expressed the view that the Green Paper
sought to introduce measures which would apply internally in each
Member State, and that this was outside the scope of Article 31
EU and breached the principle of subsidiarity, and we respectfully
agree with this view.
15.30 The present proposal is not limited to cases
with a cross-border element, but would apply to "all proceedings
taking place within the European Union"(Article 1). It would
therefore apply, for example, to the case of a Welsh speaking
defendant in criminal proceedings in England and Wales, Scotland
or Northern Ireland, or to a UK national in proceedings within
the UK who suffers from a hearing or speech impairment, as well
as to the generality of criminal cases tried in the UK where no
question of recognition and enforcement in another jurisdiction
would ever arise. All such cases would become subject to monitoring
supervised by the Commission.
15.31 To this extent, the proposal in our view
exceeds the powers conferred by Article 31(1)(c)EU since it is
not confined to rules which are necessary to improve judicial
cooperation between Member States, and it also breaches the principle
of subsidiarity. We ask the Minister if the Government is content
with this broad scope of the proposal, and if she will reconsider
her view that the proposal complies with the principle of subsidiarity.
15.32 On the detail of the proposal, we ask the
Minister if she is content with Article 4, which would prevent
anyone other than a barrister, solicitor or advocate from giving
legal advice in criminal proceedings in the UK, and if she believes
that, having regard in particular to the principle of subsidiarity,
such restrictions can properly be imposed by an EU Framework Decision.
15.33 We note that the 'Letter of Rights' must
be translated into all Community languages, but we ask the Minister
to confirm that the interpretation and translation requirements
under the draft Framework Decision apply also to languages of
third countries, and if she will be seeking to ensure that the
'Letter of Rights' is also made available in such languages.
15.34 We shall hold the document under scrutiny
pending the Minister's reply.
36 Presumably, the question of minority is to be determined
by the law of the Member State where the person is arrested or
charged. Back
37
The effect of this in the UK would be to limit the giving of advice
to barristers, advocates or solicitors. Back
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