16 Procedural rights in criminal proceedings
| (25637)
9318/04
COM(04) 328
+ ADD 1
| Proposal for a 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 30 September 2004
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| Previous Committee Report | HC 42-xxx (2003-04), para 7 (9 September 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
16.1 When we first considered this 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.
16.2 We considered the Minister's replies to this
concern on 7 July and 9 September. The Parliamentary Under-Secretary
of State at the Home Office (Caroline Flint) sought to address
this concern 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".
16.3 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, but 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.
16.4 In her reply to us of 20 July the Minister
indicated that the Government had noted but could not agree with
our conclusion. The Minister repeated her belief that common
minimum standards for some procedural safeguards were necessary
for the purpose of increasing the effectiveness of judicial co-operation,
and that the measures respected 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".
16.5 When we considered the Minister's reply on 9
September we repeated our 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.
We also considered that the question of whether standards imposed
under the EU Treaty for cross-border cases were to be applied
also to purely internal cases was a matter for decision by parliaments,
not for imposition by an EU Framework Decision. We did not think
it would prove practicable to distinguish some matters of procedure
from others in determining the proper scope of EU action, so that
there was a clear risk that the approach outlined by the Minister
would lead, over time, to the incremental unification of criminal
procedure throughout the EU.
16.6 Apart from the question of scope, we have 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.
16.7 On the provision of legal advice under the proposal,
we noted that the Government was consulting on the issue and looked
forward to an account by the Minister of the views expressed and
to receipt of the partial regulatory impact assessment.
16.8 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 might be of benefit
to United Kingdom nationals abroad and said that criminal justice
organisations had been asked to comment on the issue. The Minister
also indicated that the Government was considering how
the relevant provisions might be drafted more effectively. We
asked the Minister for an account of how this might be achieved
and if the Minister would 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 of the proposal.
The Minister's reply
16.9 In her letter of 30 September the Parliamentary
Under-Secretary of State at the Home Office (Caroline Flint) again
addresses these issues. On the question of the scope of the proposal,
in particular our concern that it should not apply to purely internal
cases, the Minister comments as follows:
"The legal base of the proposal is Article 31(1)(c)
EU, which provides for ensuring compatibility in rules applicable
in the Member States, as may be necessary to improve judicial
cooperation in criminal matters. The Commission considers that
in the area of judicial co-operation in criminal matters, only
action at an EU level can be effective in ensuring common standards.
The Commission's research demonstrates discrepancies in the application
of ECHR [European Convention on Human Rights] during criminal
proceedings in EU Member States and the enormous increase in the
number of applications made to the ECtHR [European Court of Human
Rights] in recent years. The Government considers that the Framework
Decision sets out common minimum standards in important areas
of criminal proceedings. We believe that these minimum standards
will serve to complement the ECHR and provide added clarity as
to individual rights during criminal proceedings. The consequent
increased trust and confidence in Member States' judicial systems
will have the effect of aiding mutual recognition and increasing
the effectiveness of judicial cooperation. These minimum standards
may also cause a reduction in the number of applications made
to the ECtHR. We do not see how the common minimum standards set
out in the proposal can be achieved, other than at EU level. As
such, the Government believes that the proposal does comply with
the principle of subsidiarity and can be adopted under this legal
base. Given the nature of the safeguards proposed we are concerned
that limiting the proposal to cases with a cross border element
would result in disparities and inequalities in criminal procedure
with different categories of defendants being treated differently."
16.10 In relation to the Minister's acceptance that
common minimum standards were necessary for some matters of procedure
(but, by implication, not for others), we had commented that it
would not be practicable to make such a distinction. We consequently
foresaw the risk that Minister's approach would lead, over time,
to the incremental unification of criminal procedure throughout
the EU. The Minister seeks to meet this point by emphasising the
Government's view that action is justified at the EU level in
the specific areas covered by the Framework Decision and its belief
that such action is line with the principle of subsidiarity. The
Minister adds the following comment:
"We do though recognise that this Framework
Decision will have administrative, cost and legislative implications
for Member States including the United Kingdom ([especially] Scotland)
and we would not want to see Member States being over-burdened.
Whilst we are supportive of this particular Framework Decision,
we will consider any future proposals on their individual merits.
Indeed, we would emphasise the point that our support for this
proposed Framework Decision is contingent on the proposal retaining
its limited scope."
16.11 With regard to the provision of legal advice,
the Minister indicates that the Government is concerned that under
Article 4(1) only advocates, barristers and solicitors in the
UK (as specified in Council Directive 98/5/EC) may give legal
advice and that this would preclude the practice of trainee solicitors
attending police stations to represent suspects or defendants
as part of their practical training. The Minister explains that
the Government will be putting forward amendments "to provide
a degree of flexibility for Member States to continue with this
important feature of the training process for trainee solicitors".
The Minister adds that the Government will also be seeking clarification
of the obligation on Member States under Article 4(2) to ensure
that a mechanism exists to provide a replacement lawyer if the
legal advice is found not to be effective, and will be seeking
the views of legal organisations, including the Law Society on
whether alternative wording might be appropriate. The Minister
also informs us that a consultation paper and Partial Regulatory
Impact Assessment is due to be published and that organisations
are being asked separately to provide their views on specific
aspects of the Framework Decision.
16.12 On the question of the translation of the "Letter
of Rights" into the languages of third countries, the Minister
explains that the Government is aware that Article 14 requires
the "Letter of Rights" to be translated into all Community
languages but that the general provisions relating to interpretation
and translation do not have such a limitation, and that it will
be seeking to negotiate an amendment to Article 14 requiring Member
States to "ensure a mechanism exists to allow authorities
to respond to all reasonable requests made by a suspect/defendant
to have the Letter of Rights translated into the language of a
third country".
Conclusion
16.13 We are still not persuaded that a measure
adopted under Article 31(1)(c) EU can properly deal with
purely internal cases. Article 31 EU is concerned with judicial
cooperation in criminal matters and Article 31(1)(c) with "ensuring
compatibility in rules applicable in the Member States, as may
be necessary to improve such cooperation". By definition,
a purely internal case does not raise any issue for judicial cooperation
between Member States, so that it is impossible to see how rules
for such cases can be "necessary" or how they can "improve
such cooperation". In our view, Article 31(1)(c) EU does
not provide for the standardisation of criminal procedure throughout
the EU. If Member States wish to apply the cross-border rules
adopted under Article 31 EU also to internal cases, that is a
matter for them, but this should not form part of any obligation
imposed at EU level by a Framework Decision.
16.14 We note, in this connection, that the corresponding
provisions in the Constitutional Treaty (Article III-171(2))
are even more narrowly framed than Article 31(1)(c) EU, since
they require that the matter dealt with must be one "having
a cross-border dimension". If it is to be accepted that,
for the sake of internal consistency in a legal system, EU rules
are to be imposed also for purely internal cases, these supposed
limitations on EU competence will prove to be ineffective and
the unification of criminal procedure throughout the EU could
be the result.
16.15 We consider that this issue is one which
should be debated at an appropriate time when the shape of this
proposal is clearer. For the present, we note the Minister's acknowledgment
that the proposal would have the effect of precluding a trainee
solicitor from giving advice at a police station, and we ask her
if this would not also be the case for accredited representatives
under arrangements supervised (in England and Wales) by the Legal
Services Commission. We shall also look forward to an account
by the Minister of her consultations with the professions on the
issue of legal advice and representation.
16.16 We shall also look forward to an account
of the outcome of the Minister's efforts to ensure that the "Letter
of Rights" is available to a suspect in a language which
he understands, whether or not that language is a Community language.
16.17 We shall hold the document under scrutiny
in the meantime.
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