4 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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| Department | Home Office |
| Basis of consideration | Minister's letter of 29 June 2004
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| Previous Committee Report | HC 42-xxii (2003-04), para 15 (9 June 2004); and 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
4.1 On 30 April we considered a Green Paper issued by the Commission
on procedural safeguards for suspects and defendants in criminal
proceedings throughout the European Union. 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.
4.2 We again considered the harmonisation of criminal
procedure at EU level in our Report of 25 June 2003 on the proposals
before the Convention on the Future of Europe on criminal justice.
We again took the view that there was no sufficient justification
for any generalised harmonisation of rules of criminal procedure
in the EU. We 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).
4.3 When we considered the draft Framework Decision
on 9 June we noted that several Member States appeared to be opposed
to the Commission's Green Paper proposals, for reasons of subsidiarity
and inadequacy of Treaty base. We noted that Ireland had 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 agreed with that view.
4.4 We noted that the scope of the proposed Framework
Decision was such that it 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. It
would therefore apply 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. We noted that all such cases would become subject to monitoring
supervised by the Commission.
4.5 We considered that, to this extent, the proposal
exceeded the powers conferred by Article 31(1)(c)EU, since it
was not confined to rules which are necessary to improve judicial
cooperation between Member States, and we considered that it also
breached the principle of subsidiarity. We asked the Minister
if the Government was content with this broad scope of the proposal,
and if she would reconsider her view that the proposal complied
with the principle of subsidiarity.
4.6 We also noted that Article 4 would prevent anyone
other than a barrister, solicitor or advocate from giving legal
advice in criminal proceedings in the UK, and we asked if the
Minister believed that, having regard in particular to the principle
of subsidiarity, such restrictions could properly be imposed by
an EU Framework Decision.
4.7 We noted that the 'Letter of Rights' (which sets
out 'immediately relevant' procedural rights) must be translated
into all Community languages, but we asked the Minister to confirm
that the interpretation and translation requirements under the
draft Framework Decision would apply also to languages of third
countries, and if she would seek to ensure that the 'Letter of
Rights' would also be made available in such languages.
The Minister's reply
4.8 In her letter of 29 June 2004 the Parliamentary
Under-Secretary of State at the Home Office (Caroline Flint) notes
our concern over the scope and legal basis of the proposal, but
replies that the Government considers that common minimum standards
in some areas of criminal proceedings are "necessary for
increasing trust and confidence in Member States' judicial systems,
thus furthering mutual recognition and the effectiveness of judicial
co-operation". The Minister adds that the common minimum
standards set out in the proposal could be achieved only at EU
level and that, as such, the proposal does comply with the principle
of subsidiarity and can be adopted under Article 31(1)(c) EU.
4.9 In reply to our concern that the proposal would
apply also to purely internal cases, which raise no issue of mutual
recognition, the Minister comments as follows:
"Given the nature of the safeguards proposed
we do not consider it feasible to limit the proposals to cases
in which mutual recognition may be a relevant issue, as this would
create disparities and inequalities in criminal procedure with
different categories of defendants being treated differently.
A discriminatory system that effectively operated at two levels
in this way would be unacceptable both legally and as a matter
of policy".
4.10 On the question of imposing a limit by Framework
Decision on those who may provide legal advice during criminal
proceedings, the Minister comments as follows:
"We note the concerns of the Committee as
the Article may have implications on current practice in the United
Kingdom, where trainee solicitors may provide legal advice to
suspected persons prior to charge. We do, however, see benefits
in ensuring that suspects/defendants in criminal proceedings throughout
the European Union receive legal advice from fully qualified legal
practitioners. This would ensure a minimum standard of legal advice
and as such would provide a safeguard to United Kingdom nationals
abroad involved in criminal proceedings. We are investigating
this and we are launching a consultation process aimed at criminal
justice organisations. We are asking for responses by the end
of September and will be considering any views received, in our
preparations for negotiations of this document."
4.11 The Minister refers to our concern about the
availability of the "Letter of Rights" in the languages
of non-Member States, and comments that having a "Letter
of Rights" and interpretation and translation available in
languages other than just Community languages may be of benefit
to United Kingdom nationals abroad in ensuring that they understand
the language of proceedings. The Minister explains that the Government
is aware that not all UK nationals speak a Community language
and that they could be detrimentally affected if there is no translation
or interpretation of documents and proceedings in the relevant
language. The Minister makes this further comment:
"We have asked criminal justice organisations
to comment on such issues in our consultation process and will
be considering all views in our preparation for negotiations on
the proposal. We understand that the provision of interpretation
in particular in the United Kingdom is being considered by a number
of agencies and Departments and we will be seeking their views."
Conclusion
4.12 We thank the Minister for her letter. We
remain concerned about the wide scope of the proposal, since it
will affect criminal procedure generally and not just those cases
where some cross-border element arises. We acknowledge the force
of the point made by the Minister about the difficulty of operating
a system of criminal procedure at two levels, depending on whether
mutual recognition may be in issue. We ask the Minister if she
agrees that this leads to the conclusion that there are no means
of ensuring that the scope of measures adopted at EU level is
confined to that which is "necessary" for the purposes
of improving judicial cooperation, and that such measures will
instead lead to the incremental unification of criminal procedure
throughout the EU.
4.13 We agree that it is necessary that persons
involved in criminal proceedings should be properly advised and
represented, but we question whether it is necessary to limit
the freedom to give advice to those who are now listed in Council
Directive 98/5/EC, particularly as there is no convenient procedure
for amending the list in Article 1(2)(a) of that Directive (which
in any event was adopted for different purposes), and we ask the
Minister if she agrees that the use in the Framework Decision
of the list from the Directive will be likely to inhibit the
development by Member States of new means for providing legal
services in criminal proceedings.
4.14 We think it essential that the translation
and interpretation requirements under the proposal should meet
the standard imposed under Article 6 of the European Convention
on Human Rights, so that translations and interpretations into
the languages of third states, as well as those of Member States,
should be provided as the case requires. We ask the Minister to
provide an account of the results of the consultation of criminal
justice organisations to which she refers.
4.15 We shall hold the document under scrutiny
pending the Minister's reply.
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