7 Procedural rights in criminal proceedings
| (25637)
9318/04
COM(04) 328
+ ADD 1
| 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 20 July 2004
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| Previous Committee Report | HC 42-xxvi (2003-04), para 4 (7 July 2004) and see (24282) 6781/03: 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
7.1 The introduction of this measure by the Commission follows
its earlier publication of a Green Paper on procedural safeguards
for suspects and defendants in criminal proceedings throughout
the European Union. In considering the Green Paper we agreed
with the Government that any measures adopted at EU level in this
field should be limited to cases with a cross-border element.
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.
7.2 In our Report of 25 June 2003 on the proposals
on criminal justice before the Convention on the Future of Europe
we again took the view that there was no sufficient justification
for any generalised harmonisation of rules of criminal procedure
in the EU. In our view, harmonisation should be limited to achieving
such minimum standards as were necessary to secure mutual recognition
of judgments and decisions in particular cases.
7.3 When we considered the draft Framework Decision
on 9 June we expressed concerns over its excessively wide scope,
noting that it would apply also to purely internal cases involving
only nationals of the Member State of the place of trial. It
would therefore apply to the generality of criminal cases tried
in the UK, even where no question of recognition and enforcement
in another jurisdiction would ever arise, and would provide for
monitoring of such cases supervised by the Commission. In our
view, the proposal exceeded the scope of Article 31(1)(c) EU,
since it was not confined to rules which were necessary to improve
judicial cooperation between Member States, and we also considered
that the proposal breached the principle of subsidiarity.
7.4 Apart from the question of scope, we expressed
two other concerns. First, we noted that Article 4 of the draft
Framework Decision would have the effect of preventing anyone
other than a barrister, solicitor or advocate from giving legal
advice in criminal proceedings. Secondly, we noted that whereas
the "Letter of Rights" (which is to set out "immediately
relevant" procedural rights) must be translated into all
Community languages, no provision had been made for translations
into languages of third countries.
7.5 We noted that the Parliamentary Under-Secretary
of State at the Home Office (Caroline Flint) sought to address
these concerns in her letter to us of 29 June 2004. The Minister
took the view that the proposal did comply with the principle
of subsidiarity and also with Article 31(1)(c) EU, arguing that
common minimum standards in some areas of criminal procedure were
"necessary for increasing trust and confidence in Member
States' judicial systems" and that this would further "mutual
recognition and the effectiveness of judicial cooperation".
In relation to the effect of the proposal on purely internal
cases, the Minister argued that it was not feasible to limit the
proposal to cases in which mutual recognition might be a relevant
issue, "as this would create disparities and inequalities
in criminal procedure with different categories of defendants
being treated differently".
7.6 In our consideration of her reply on 7 July 2004,
we acknowledged the force of the point made by the Minister about
the difficulty of operating a national system of criminal procedure
at two levels, depending on whether mutual recognition might be
an issue. We asked the Minister if this consideration led to
the conclusion that there were in practice no means of ensuring
that the scope of measures adopted at EU level could be confined
to those which were "necessary" for the purposes of
improving judicial cooperation, and that such measures would instead
lead to the incremental unification of criminal procedure throughout
the EU.
7.7 On the provision of advice and representation
for persons involved in criminal proceedings, we agreed with the
Minister that such advice and representation must be adequate,
but we questioned whether it was necessary to confine the giving
of advice to those who are now listed in Article 1(2)(a) of Council
Directive 98/5/EC (i.e. in the UK, to barristers, solicitors or
advocates). We noted that there was no convenient procedure for
amending the list in the Directive (which was, in any event, adopted
for different purposes) and we asked the Minister if the use of
such a list for the purposes of the Framework Decision would be
likely to inhibit the development by Member States of new means
for providing legal services in criminal proceedings.
7.8 On the translation of the "Letter of Rights",
the Minister agreed that having a "Letter of Rights"
and interpretation in languages other than Community languages
"may be of benefit to United Kingdom nationals abroad"
and said that criminal justice organisations had been asked to
comment on the issue. In considering the Minister's reply, we
thought 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 translation
and interpretation into the languages of third states should also
be provided, as the case required. We asked the Minister for
an account of the results of her consultations of criminal justice
organisations.
The Minister's reply
7.9 The Minister replies to these points in her letter
of 20 July 2004. On the question of the scope of the proposal
and our point that the difficulty of operating a system of criminal
procedure at two levels leads to the conclusion that there are
no means of limiting EU measures to those which are "necessary"
for the purposes of improving judicial co-operation, the Minister
replies that the common minimum standards in the proposal would
safeguard individual rights and "reinforce trust in other
Member States' justice systems, thus enhancing judicial co-operation
in the EU", and that the nature of these safeguards is such
that they "could not be effectively achieved if the proposal
was limited to cases in which mutual recognition was a relevant
factor".
7.10 On this issue, the Minister makes this further
comment:
"The Government respectfully notes but cannot
agree with the conclusion of the Committee. For the reasons given
above we consider that common minimum standards for some procedural
safeguards are necessary for the purpose of increasing the effectiveness
of judicial co-operation. We also believe that the measures respect
the principle of subsidiarity precisely because action at national
level would not provide effective minimum standards in the EU
and because the measures do not intrude into areas where action
at national level would be more effective in achieving this aim.
We understand the Committee's concerns and recognise that we
must be astute to ensure the principle of subsidiarity is observed
but we believe that in so far as we remain vigilant in the application
of the subsidiarity principle, these measures will not lead to
the incremental unification of criminal procedure throughout the
EU."
7.11 On the Government's attitude to future EU initiatives
relating to the criminal justice process and the criminal law,
the Minister comments that the Government "will consider
the merits of each proposal individually with the fundamental
view that mutual recognition rather than harmonisation, is the
basis for effective judicial co-operation in the EU".
7.12 The Minister notes our concern that use in the
Framework Decision of the list in Council Directive 98/5/EC would
be likely to inhibit the development by Member States of new means
for providing legal services in criminal proceedings. The Minister
states that the Government broadly supports the safeguards contained
in the proposal relating to legal advice, but that it is aware
"that the proposal in its current format could have implications
for the current provision of legal advice in the United Kingdom
as well as other Member States." The Minister adds that
the Government has been carrying out research into systems in
other Member States for providing legal advice and that it has
also been consulting on the issue within the UK. The Minister
states that the Government will be sending us a copy of its consultation
document and a partial regulatory impact assessment.
7.13 The Minister notes our view that the translation
and interpretation requirements under the proposal should meet
the standard required under Article 6 of the European Convention
on Human Rights, but explains that the Government is investigating
how the proposal would fit with current practice in the UK. The
Minister adds this comment:
"Whilst [the] ECHR does set out the right to
a fair trial encompassing the right to understand proceedings,
this proposal will set minimum standards in this area and ensure
that these rights are adequately and clearly provided for throughout
the EU. Therefore, whilst we are considering whether the articles
could be drafted more effectively in this respect, we can be broadly
supportive of this part of the proposal in that it will increase
the confidence in Member States criminal justice systems."
Conclusion
7.14 We note the Government's views on the scope
of this proposal, but we remain of the view that measures adopted
under Article 31 of the EU Treaty should respect the limits imposed
by that Treaty and should therefore not apply to purely internal
cases. Whether or not standards imposed under the EU Treaty for
cross-border cases are also applied to purely internal cases is,
in our view, a matter for decision by parliaments and should
not be imposed by an EU Framework Decision.
7.15 We note the statement by the Minister that
common minimum standards are necessary for some procedural safeguards
(with the implication that they will not be necessary for others),
but we do not think it will prove practicable to distinguish some
matters of procedure from others in determining the proper scope
of EU action. Accordingly we consider that there is a clear risk
that the approach outlined by the Minister will lead, over time,
to the incremental unification of criminal procedure throughout
the EU.
7.16 On the provision of legal advice under the
proposal, we shall look forward to an account by the Minister
of the views expressed by consultees in the United Kingdom on
the proposed means of limiting those who may give advice, and
to receipt of the partial regulatory impact assessment.
7.17 On the question of translation and interpretation
requirements, we look forward to an account by the Minister of
how the relevant provisions might be drafted more effectively,
and ask the Minister if she will confirm that she will press for
these to apply also to languages of third countries, not just
those of Member States as referred to in Article 14.
7.18 We shall hold the document under scrutiny
pending the Minister's reply.
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