14 Procedural rights in criminal proceedings
| (a)
(25637)
9318/04
COM(04) 328
+ ADD 1
(b)
(26715)
10880/05
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Proposal for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union
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 | (b) EM of 5 August 2005
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| Previous Committee Report | (b) None; (a) see (25637) HC 42-xxxv (2003-04), para 5 (3 November 2004), 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
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| Committee's assessment | Legally and politically important
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| Committee's decision | (a) cleared; (b) not cleared pending evidence from Minister
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Background
14.1 This Framework Decision is concerned with establishing common
minimum standards concerning certain aspects of criminal procedure,
notably the right to legal advice, to interpretation and translation,
to have medical attention and to seek consular assistance.
14.2 When the previous Committee first considered
this proposal on 9 June 2004 (document (a)) it 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 and 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 its 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 it also
considered that the proposal breached the principle of subsidiarity.
14.3 In further consideration of the proposal and
the Government's replies on 9 September and 3 November 2004 the
previous Committee repeated its view that measures adopted under
Article 31 of the EU Treaty should respect the limits imposed
by that Treaty and should not apply to purely internal cases.
It considered that the promotion of a general increase in trust
and confidence between judicial systems of the Member States,
however desirable this might be, was too wide an objective and
was not supported by the language of Article 31(1)(c) EU.
14.4 The Committee noted the Minister's concern that,
in view of the nature of the safeguards proposed, a limiting of
the proposal to cases with a cross border element might result
in disparities and inequalities in criminal procedure with different
categories of defendants being treated differently, but it 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. The Committee did not think it would
prove practicable to distinguish some matters of criminal 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.
14.5 Apart from the question of scope, the Committee
had two other concerns. First, it noted that Article 4 of the
draft Framework Decision (which limited the giving of advice to
those specified by Council Directive 98/5/EC) would have the effect
of preventing anyone other than a barrister, solicitor or advocate
from giving legal advice in criminal proceedings. This appeared
to have the effect of precluding a trainee solicitor and accredited
representatives under arrangements supervised (in England and
Wales) by the Legal Services Commission from giving advice at
a police station. Secondly, it 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. The Minister replied that the Government would
be considering how these provisions might be drafted more effectively.
The revised draft Framework Decision
14.6 The revised draft Framework Decision (document
(b)) reflects the outcome of discussions in the Council working
group and Article 36 Committee as matters stood in July 2005.
It is apparent from the large number of footnotes attached to
the text that there are substantial reservations by Member States
and that many issues are far from agreement.
14.7 As with the previous version, Article 1 defines
the scope of the proposal. It applies to "criminal proceedings",
which expression is to take into account the classification under
national and international law,[36]
the nature of the offence, the nature and degree of severity of
the relevant sanction and the question of whether the criminal
court has jurisdiction. A number of illustrative examples are
given, including proceedings brought by administrative authorities
where these may give rise to proceedings before a criminal court.
Provision is also made for Member States to exclude minor offences
from the scope of the Framework Decision, but this exception appears
to be questioned by a number of Member States.
14.8 Article 2 provides for a right to legal advice.
The right extends to preliminary investigations, but may be subject
to limitations in exceptional circumstances when the interests
of justice so require, provided this does not prejudice the right
to a fair trial. The provision is again questioned by a number
of Member States.
14.9 Article 3 is concerned with the obligation to
ensure that legal advice is made available. This is to apply where
the person in question is subject to deprivation of liberty by
arrest or detention, persons formally accused of having committed
a criminal offence "which involves a complex factual or legal
situation, or which is subject to severe punishment" (in
particular where the offence carries a penalty of one year's
imprisonment, persons subject to a European Arrest Warrant and
persons who are not able to understand or follow the proceedings
owing to age or mental or physical condition). In all such cases,
the costs of legal advice must be borne in whole or in part by
the Member State "if these costs would cause undue financial
hardship to the suspected person or his dependants". The
costs may be made subject to a right of recovery by the Member
State if the suspected person's means allow it.
14.10 Article 4 provides that legal advice may only
be given by lawyers authorised under one of the professional titles
listed in Article 1(2)(a) of Council Directive 98/5/EC or a person
duly qualified according to applicable national provisions. Member
States are also obliged to ensure that a mechanism exists to ensure
that a lawyer is replaced "if the legal advice given is found
to be manifestly not effective". As an alternative to this
provision (which has been criticised by a number of Member States
on the grounds that the lack of an objective monitoring mechanism
will make it difficult to monitor the effectiveness of legal advice)
it has been proposed that the accused should have the right to
request a replacement lawyer on the grounds that the legal advice
does not meet the necessary professional standard, insofar as
this does not prejudice the administration of justice.
14.11 Article 5 of the previous version has now been
deleted. Article 6 is concerned with the right to free interpretation.
Member States are to provide free interpretation to any suspected
person who is unable to understand or speak the language of the
proceedings, or who suffers from hearing or speech impediment.
In cases where Article 3 applies, Member States must also provide
free interpretation in relation to the criminal proceedings, including
the case where the accused and his lawyer have no common language,
whether or not it is the language of the proceedings or any other
language. Article 7 is concerned with a similar right to translation
of documents and Article 8 with ensuring the accuracy and competence
of translators.
14.12 Article 9 of the previous version (which provided
for the recording of proceedings conducted through interpreters)
has been deleted. Article 10 is concerned with the "right
to specific attention", that is special measures which may
be necessary for the fairness of the proceedings owing to the
age, mental or physical condition of the accused. In the case
of persons who are minors or who are mentally impaired, Article
11 provides that Member States are to ensure that such persons
are questioned in the presence of a parent or guardian, but that
this may be delayed or limited is so far as this is necessary
in the interests of justice or of the person concerned. Article
11 bis requires Member States to ensure that medical or psychiatric
assistance is available, when necessary, to a person who is held
in custody.
14.13 Articles 12 and 13 are concerned with the right
of the person held in custody to inform a third party and to communicate
with consular authorities. In both cases, this right is subject
to the right of the Member State to delay such communications
in exceptional circumstances to protect the effectiveness of investigations
or the safety of other persons or to prevent any hindrance to
the freezing of proceeds of crime.
14.14 Article 14 provides for a "Letter of Rights"
setting out the accused person's rights in a language he understands.
Member States are required to ensure, in cooperation with the
Commission, that a standard translation exists of the Letter of
Rights in all Community languages. The Commission is to ensure
the translation of the document into other Community languages,
while it is for the Member State to provide translations into
other languages, if this is deemed necessary. Member States are
to be required to ensure that the accused person signs a receipt
for the Letter of Rights, but several Member States consider that
this requirement breaches the principle of subsidiarity.
14.15 Article 15 provides for evaluation and monitoring
of the Framework Decision to be carried out under the supervision
of the Commission, but it appears that a "vast majority"
of Member States doubt the utility of this provision.
The Government's view
14.16 In her Explanatory Memorandum of 5 August 2005
the Parliamentary Under-Secretary of State at the Home Office
(Fiona Mactaggart) notes that the overall objective of the proposal
is to enhance mutual trust and confidence in the criminal justice
systems of the Member States and comments that common minimum
standards could provide increased clarity to UK nationals as to
their rights in criminal proceedings throughout the EU.
14.17 The Minister explains that negotiations in
recent months have focused on the scope of the measure and the
definition of "criminal proceedings", the nature of
the right to legal advice under Article 2 (in particular whether
this requires the physical presence of a lawyer) and whether interpretation
between a suspected person and his lawyer should be state funded.
14.18 In relation to the definition of "criminal
proceedings" the Minister explains that the text adopts criteria
defined by the European Court of Human Rights and adds illustrations
of the types of proceedings covered, but that this will require
further careful consideration within the working group and that
it remains to be seen how far the text will command consensus.
The Minister adds that account will also need to be taken of the
Pupino case in the European Court on the interpretation
of Framework Decisions. The Minister comments that the limitations
on the right to legal advice under Article 2 will need to be considered
in order to ensure that the text is better aligned with the European
Convention on Human Rights (ECHR).
14.19 The Minister points out that Article 4 has
been amended to provide that only those qualified under Council
Directive 98/5/EC or under applicable national provisions may
provide legal advice, but that Member States will need to consider
whether this is satisfactory having regard to national law and
practice. The Minister also refers to the options in Article 4(2)
for ensuring that legal advice is effective.
14.20 The Minister explains that the extent to which
legal advice under Articles 3 to 5 should be state-funded is under
continuing consideration in the negotiations, and that the current
wording may not wholly resolve the difficulties identified by
Member States. In relation to the right to interpretation free
of charge under Article 6, the Minister comments that "the
question of bureaucratic burdens and costs is very much in the
mind of Member States and many take the view that the value of
the Framework Decision provisions must be weighed very carefully
against them". The Minister adds that Article 9 (which provided
for the recording of proceedings conducted through interpreters)
has now been deleted because no consensus could be found in support
of this provision, and that Article 11 (which provided for audio
or video recordings of proceedings entitled to specific attention)
has also been deleted.
14.21 In relation to the new provisions of Article
11(3) and Article 11 bis, the Minister comments that Article 11(3)
will need to be further considered to see if the text is satisfactory
having regard to good practice in this important area, and that
Article 11 bis reflects the view of some Member States that there
should be a general right to medical attention for all persons
held in custody.
14.22 The Minister refers to the right under Article
12 to inform a third party of an arrest or holding in custody
and to consular assistance under Article 13, and to the fact that
the right is qualified so as to protect investigations, the safety
of persons or to prevent hindrance to the freezing of proceeds
of crime or instrumentalities used in crime. The Minister comments
that these restrictions are consistent with the approach taken
under the ECHR.
14.23 The Minister explains that a number of Member
States have been concerned that the provisions on the Letter of
Rights under Article 14 provide an enhanced role for the Commission
and that this may impinge on the subsidiarity principle. Most
Member States are also concerned that the provisions on monitoring
and evaluation under Articles 15 and 16 raise concerns about subsidiarity
and are unconvinced about the need for and value of these provisions.
The Minister adds that negotiations on these Articles have been
postponed pending the outcome of general discussions on measures
under the Hague Programme.
Conclusion
14.24 We share the concerns expressed by the previous
Committee over the reach of this proposal into purely internal
cases, and we doubt whether it is properly based on Article 31(1)(c)
EU.
14.25 We note that a number of Member States have
raised concerns over the subsidiarity implications of this proposal,
and we ask the Minister if these are shared by the UK.
14.26 We regret the deletion of the provisions
for audio and video recording of interviews of persons conducted
through interpreters or where the person is entitled to specific
attention by reason of a mental or physical infirmity. In our
view, such measures would have given a degree of reassurance about
the fairness of criminal proceedings and their deletion makes
the instrument of considerably reduced value.
14.27 It is apparent from the Minister's account
that negotiations on this proposal are proving slow and difficult.
In our view, the experience shows that it may be preferable for
such matters to be left to the ECHR.
14.28 The Minister is due to appear before us
shortly to give evidence on this proposal and we shall look forward
to pursuing these matters with her on that occasion.
36 This appears to be a reference to the jurisprudence
of the European Court of Human Rights, which does not regard the
national law as conclusive in determining whether or not proceedings
are 'criminal' for the purposes of the European Convention on
Human Rights. Back
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