5 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
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| Basis of consideration |
Minister's letter of 29 October 2004 |
| Previous Committee Report |
HC 42-xxxii (2003-04), para 16 (13 October 2004), HC 42-xxx (2003-04), para 7 (9 September 2004), HC 42-xxvi (2003-04), para 4 (7 July 2004), 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 |
| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; oral evidence requested
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Background
5.1 Since our first consideration of this draft Framework Decision
on 9 June we have been expressing concern about 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.
5.2 We considered the Minister's replies to this
concern on 7 July, 9 September and 13 October. The Parliamentary
Under-Secretary of State at the Home Office (Caroline Flint) sought
to address the matter in her letters to us of 29 June, 7 July,
20 July and 30 September. She maintained her view that the proposal
complied both 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.
5.3 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.
5.4 We noted, on 9 September, that the Minister did
not agree with our conclusion, repeating her belief that common
minimum standards for some procedural safeguards were necessary
for the purpose of increasing the effectiveness of judicial co-operation.
For our part, we continued to believe that measures adopted under
Article 31 of the EU Treaty should respect the limits imposed
by that Treaty and should not, in our view, 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 national parliaments, not for imposition by an EU Framework
Decision. We doubted if 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.
5.5 In considering the Minister's further reply of
30 September we commented on 13 October that we were still not
persuaded that a measure adopted under Article 31(1)(c) EU could
properly deal with purely internal cases. It did not seem to us
to be possible for rules to be "necessary" for the purposes
of improving judicial cooperation under Article 31 in respect
of purely internal cases which, by definition, do not raise any
issues for judicial cooperation between Member States. We noted,
in this connection, that the corresponding provisions in the Constitutional
Treaty (Article III-171(2)) were even more narrowly framed than
Article 31(1)(c) EU, since they required that the matter dealt
with must be one "having a cross-border dimension".
We were concerned that if it were to be accepted that, for the
sake of internal consistency in a legal system, EU rules were
to be imposed also for purely internal cases, the supposed limitations
on EU competence would prove to be ineffective and the unification
of criminal procedure throughout the EU could be the result.
5.6 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. The Minister acknowledged that
the proposal would have the effect of precluding a trainee solicitor
from giving advice at a police station, and we asked her if this
would also be the case for accredited representatives under arrangements
supervised (in England and Wales) by the Legal Services Commission.
5.7 Secondly, we noted that the "Letter of Rights"
(which was to set out "immediately relevant" procedural
rights) must be translated into all Community languages, but that
no provision had been made for translations into languages of
third countries. 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.
The Minister had indicated to us that the Government was considering
how the relevant provisions might be drafted more effectively,
and we asked her for an account of how this might be achieved
and if she would confirm that she would 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
5.8 In her letter of 29 October the Parliamentary
Under-Secretary of State at the Home Office (Caroline Flint) returns
again to our comments on the scope of the proposal, in particular
our concern that it should not apply to purely internal cases.
After summarising our views, the Minister comments as follows:
"I cannot, respectfully, concur with the
Committee's view. We believe that the minimum standards set out
in this Framework Decision are of vital importance to encourage
efficient judicial cooperation and that the required minimum standards
can only be set at the EU level. This Framework Decision is not
seeking to harmonise the procedure for criminal proceedings in
Member States in the European Union but to set minimum standards
that will assist in increasing trust and confidence in other Member
States' judicial systems, thereby enhancing the application of
the principle of mutual recognition, the foundation for effective
judicial co-operation in the European Union.
"It is up to Member States to decide how
they ensure that their particular national judicial system meets
the requirements of the minimum standards set out by the Framework
Decision. The United Kingdom has equal if not higher standards
in many of the areas covered by the proposed Framework Decision,
and as such the minimum standards would mean very limited changes
(if any) to our national judicial system.
"The point of the proposal is to improve
effective judicial co-operation in the European Union, through
minimum standards that add clarity to the framework for individual
rights as set out in the European Convention on Human Rights.
We are aware that these minimum standards may be relevant for
internal cases. However, it must be recognised that it will not
be possible, in the context of ever increasing free movement of
persons within the EU, to foresee in which cases the judicial
cooperation of another Member State should or could be requested.
To give a couple of examples, there could be an element of judicial
cooperation in the transfer of enforcement of a purely domestic
case; the [European Arrest Warrant] procedure could be used to
return a person subject to a judicial decision that was purely
internal. It is not possible, therefore, to draw a distinction
between internal cases and others for present purposes. Accordingly,
we believe that the measures in the instrument do not go beyond
what is necessary to promote judicial cooperation in criminal
matters. This has been discussed at length in the relevant Council
working group."
5.9 The Minister also informs us that the Government
is aware that the Commission is looking at future proposals in
this area and will consider each proposal on its individual merits.
The Minister refers to a Green Paper on pre-trial supervision
measures on which the Government will be outlining its views to
us in an Explanatory Memorandum.
5.10 In relation to our concern over the restrictions
arising from Article 4 on the provision of legal advice, the Minister
explains that, in the Government's view, the reference to Directive
98/5/EC could have serious implications for the practice of trainee
solicitors attending police stations to represent suspects and
defendants as part of their practical training. In reply to our
concern that the reference to the Directive might also have the
effect of preventing accredited representatives for giving advice,
the Minister agrees that it would, since the reference to the
Directive in the Framework Decision has the effect of restricting
the giving of advice to a solicitor, advocate or barrister. The
Minister asks us to note that the Government's view that reference
to the Directive would produce results which were too restrictive
"was shared by almost all Member States at the recent Criminal
Law Working Group discussion". The Minister adds that the
Government hopes to see a revised text from the Commission reflecting
this view.
5.11 On the question of the translation of the "Letter
of Rights" the Minister explains that the Government will
be seeking to ensure that in the text of Article 14 a mechanism
exists in all Member States to be able to respond to all reasonable
requests to have the Letter of Rights translated into a non-EU
language.
Conclusion
5.12 We thank the Minister for her letter, but
we are still concerned about the consequences of the Government's
apparent acceptance that measures may be adopted under Article
31(1)(c) EU which concern purely internal cases. It seems to us
that the word "necessary" in Article 31(1)(c) EU has
to be given some meaning, so that proposals must be demonstrably
necessary to improve judicial cooperation between Member States
before they can be adopted under this provision. It also seems
to us that promoting a general increase in trust and confidence
between the judicial systems of Member States, however desirable
this may be, is too wide an objective and is not supported by
the language of Article 31(1)(c)EU. If this were the true objective
of Article 31(1)(c)EU, it would be difficult to conceive of any
measure, however invasive of a Member State's internal law and
judicial system, which could not be said to promote such mutual
trust and confidence.
5.13 We are also concerned at the Minister's statement
that the point of the proposal is to "add clarity" to
the framework for individual rights as set out in the European
Convention on Human Rights (ECHR). We question whether it is a
proper role for the EU institutions to be seeking to qualify,
or gloss, the rights conferred by the ECHR.
5.14 We find the examples given by the Minister
to show the impossibility of distinguishing between internal and
other cases to be less than persuasive. In the event, for example,
that extradition is sought under the European Arrest Warrant,
or enforcement is sought of a financial penalty, the proper place
for procedural safeguards is in the body of the instrument providing
for extradition or mutual recognition. If such instruments contained
adequate safeguards, there would be no need for such general procedural
measures as are contained in the current proposal. We do not think
that the basis for EU action should rest on speculation that what
is a matter confined to one Member State (or in the United Kingdom,
to England and Wales, Scotland or Northern Ireland) might subsequently
be a matter for extradition or mutual recognition.
5.15 We are encouraged by the Minister's remarks
on Article 4, but the issue illustrates our concern over the scope
of the proposal. It can hardly be the proper role of the EU institutions
to decide whether advice in police stations in the United Kingdom
should, or should not, be given by trainee solicitors or accredited
representatives.
5.16 We have concentrated on the issue of scope
and have discussed it at length because of its importance. Earlier
proposals, such as those for the European Arrest Warrant or on
mutual recognition of decisions, were plainly concerned with cross-border
cases, but this appears to be the first which would affect the
general criminal procedure of Member States and which is intended
to apply to all criminal proceedings. We therefore ask the Minister
to attend the Committee to give further explanation of the Government's
attitude on the points raised in our Reports and of the consequences
of accepting an EU competence in relation to the general rules
of criminal procedure.
5.17 We shall hold the document under scrutiny
in the meantime.
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