18 Procedural rights in criminal proceedings
| (a)
(26715)
10880/05
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(b)
(27268)
15432/05
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Draft Framework Decision on certain procedural rights in criminal proceedings throughout the European Union
Draft 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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| Deposited in Parliament | (b) 8 February 2006
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| Department | Office for Criminal Justice Reform
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| Basis of consideration | (b) EM of 8 February 2006
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| Previous Committee Report | (a) HC 34-vi (2005-06), para 14 (19 October 2005) and see 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 HC 63-xix (2002-03), para 11 (30 April 2003); and HC 63-xxvi (2002-03), (25 June 2003)
(b) None
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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; further information requested
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Background
18.1 This proposal for a 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.
18.2 When the previous Committee first considered
an earlier version of this proposal on 9 June 2004, 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. The Committee took the view that the proposal
exceeded the scope of Article 31(1)(c) EU, since it was not confined
to rules which were necessary to improve judicial co-operation
between Member States, and it also considered that the proposal
breached the principle of subsidiarity.
18.3 When we considered a later version of the proposal
(document (a)) we shared the views of our predecessor over the
reach of this proposal into purely internal cases, and we doubted
whether it was properly based on Article 31(1)(c) EU.[57]
We also regretted the deletion of provisions which would have
required 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 made the
instrument of considerably reduced value. We noted from the Minister's
account that negotiations on this proposal were proving slow and
difficult and considered that this experience showed that it might
have been be preferable for such matters as procedural rights
in criminal proceedings to have been left to the European Convention
on Human Rights. We pursued these and other questions when the
Minister gave oral evidence before us.
The Minister's oral evidence
18.4 The Parliamentary Under-Secretary of State at
the Home Office (Fiona Mactaggart) gave evidence before us on
26 October 2005 on the scope of the proposal, on whether it provided
any benefit over and above the guarantee of the fairness of criminal
trials under Article 6 of the European Convention on Human Rights
(ECHR), on the deletion of the provisions for recording interviews,
on the role of the Commission in relation to the proposed Letter
of Rights and in monitoring national systems of criminal procedure
and on the prospects and timetable for negotiation of the proposal.
18.5 On the scope of the proposal and the question
of its application to purely internal cases, the Minister replied
that the proposal was seeking to create a structure within which
there would be a guarantee of equality of procedural treatment
across the different jurisdictions. There was a difficulty in
knowing in advance whether a given case would have an international
dimension, since a case which appeared to be purely domestic could
develop international dimensions.[58]
On the related question of the use of Article 31(1)(c) EU as the
legal base, the Minister replied that Article 31(1)(a) EU provided
for facilitating and accelerating judicial co-operation in relation
to the enforcement of decisions and that in order to ensure sufficient
trust for the purposes of mutual recognition it was necessary
to ensure "general compatibility in the rules …. in
Member States concerning minimum procedural rights of individuals
in criminal proceedings which could give rise to mutual recognition
requests" and that Article 31(1)(c) EU provided a legal basis
"for ensuring the compatibility of the rules applicable in
Member States, where necessary, to improve judicial co-operation,
including mutual recognition".
18.6 We were aware that Ireland had opposed the approach
set out in the Commission's Green Paper (and on which the present
proposals were based) on grounds of subsidiarity and lack of legal
base, and the Minister confirmed that Ireland, along with Austria,
the Czech Republic, Denmark, Malta and Slovakia had entered a
formal reservation about the legal base of the current proposal.
The Minister added that there were some other Member States which
were sympathetic to this view.
18.7 On the question of whether the proposal provided
any benefit over and above the guarantee of the fairness of criminal
trials under Article 6 ECHR, the Minister replied that the aim
of the draft Framework Decision was not to confer any new rights,
but to make sure that the rights which are set out in the ECHR
work properly in practice.
18.8 On the deletion of the provisions concerning
the audio or video recording of interviews of suspects in criminal
proceedings, the Minister replied that the UK had argued the case
on several occasions before the start of its Presidency for such
recording, but found no support from other Member States. The
Minister commented that "when your voice is a lone one, you
cannot achieve the aim that you are going for" and also:
"Making tape-recording and video-recording
a more widespread practice would also have been worth having but
was not the fundamental purpose of the Treaty, which is to enhance
judicial co-operation, and we know that judges do not require
this in order to trust the way that another court proceeds, and
to make sure that there are minimum standards, particularly for
things that we know are being denied to people overseas, which
include interpretation."[59]
18.9 In relation to the role of the Commission, the
Minister did not think that, with regard to the proposed Letter
of Rights, it was the business of the Commission "to tell
us what we should hand people in police stations" and that
the present proposals for a Letter of Rights were not one which
commanded any enthusiasm from the United Kingdom. The Minister
commented that the UK had "very serious reservations "
about the proposal for a separate Letter of EU Rights adding that
"we do not think it is necessary, we do not think it adds
value, it could cause confusion, it could cause cost and ... it
is not appropriate".
18.10 The Minister thought it "optimistic"
to expect the proposal to be agreed by December 2005 deadline
fixed by the Hague Programme, since Member States were far from
agreement.
The revised draft Framework Decision
18.11 The revised draft Framework Decision (document
(b)) is the most recent draft reflecting the results of discussions
during the UK Presidency. Although a number of substantial changes
have been made, it is apparent that there remain major disagreements
between the Member States.
18.12 The changes which have been made to the proposal
may be summarised as follows. The definition of "criminal
proceedings" in Article 1 has been widened, and the reference
to a "suspected person" has been replaced by a reference
to a person "subject to criminal proceedings". The previous
version permitted Member States not to apply the Framework Decision
to "minor offences" but this exception is now deleted.
18.13 Article 2 sets out a right to legal advice
"as soon as possible and throughout the criminal proceedings",
but it appears that the right is one to legal advice rather than
to the presence of a lawyer, it being left to Member States to
decide how the right to legal advice is to be exercised. The right
is subject to the limitations in Article 2(2) whereby, in exceptional
circumstances, Member States may delay or attach conditions to
the right to legal advice, in order to protect the effectiveness
of investigations, to prevent any hindrance to the freezing of
proceeds or instrumentalities of crime or to ensure the safety
or persons. However, it also appears that many Member States have
fundamental objections to the giving of legal advice being made
subject to such conditions.
18.14 The right under Article 6 to free interpretation
has been expanded to make clear that it is a right to have interpretation
into a language which the accused person understands.[60]
The right under Article 7 to translation of documents free of
charge has been qualified in two respects. First, the right to
translation applies to all documents which are necessary to enable
the accused to have knowledge of the case against him and defend
himself. Secondly, it is provided, that "where appropriate"
an oral translation or an "oral or written summary may suffice".
18.15 Article 9 (which provided for the recording
of proceedings) has been deleted. The right to "special measures"
under Article 10, which in the previous version applied to persons
who had difficulties in understanding the proceedings by reason
of age, mental or physical condition, has now been limited to
minors. Article 10 provides that an adult must be informed if
a minor is held in custody and must be present if the minor is
being questioned. This right is made subject to conditions similar
to those applying under Article 2(2) to the giving of legal advice
and are again subject to reservations by a number of Member States.
As before, Article 12 confers a right on the accused person to
have some other person of his choice to be informed of his detention,
but this is made subject to conditions similar to those applying
under Article 2(2), which conditions are also subject to reservations
by a number of Member States.
18.16 Article 13 (which concerns the right to consular
assistance) has been amended to make clear that it is without
prejudice to any international obligations of Member States.[61]
concerning consular relations including those under the 1963 Vienna
Convention on Consular Relations and any bilateral consular Convention.
The right to communicate with consular authorities is made subject
to a number of conditions, similar to those in Articles 2 and
12, but a number of Member States are seeking the deletion of
these conditions on the grounds that they are inconsistent with
international law, in particular the 1963 Vienna Convention on
Consular Relations.
18.17 Article 14 (which provided for the issue of
a Letter of Rights informing him of his rights under the Framework
Decision) has been substantially amended. The reference to a Letter
of Rights has been deleted and is replaced by a requirement that
the accused person is "effectively notified" of the
procedural rights resulting from implementation of the Framework
Decision. Member States are required to ensure that their competent
authorities make a documentary record of the fact, time and method
of notification of those rights. Article 14(2) of the previous
version (which provided for Member States to co-operate with the
Commission in providing a standard translation of the Letter of
Rights) has been deleted, in accordance with the request of a
large majority of Member States.
18.18 Article 15 (which formerly provided for evaluation
and monitoring under the supervision of the Commission) has been
amended by a provision which refers to evaluation in accordance
with mechanisms established under the EU Treaty. It appears that
a large majority of Member States had entered reservations against
the former provisions and that a number favoured its deletion.
Article 16 (which formerly required Member States to collect and
make available a wide variety of data) has been deleted on grounds
that such detailed provisions offended against the principles
of proportionality and subsidiarity.
The Government's view
18.19 The Attorney General (Lord Goldsmith QC) submitted
a detailed Explanatory Memorandum on 8 February 2006 on behalf
of the Office for Criminal Justice Reform, describing the changes
which have been made in the revised version of the Framework Decision.
The Attorney General also informs us that the European Council
noted in December 2005 that it had not proved possible to agree
the proposal by the Hague Programme deadline because of "fundamental
differences of view between Member States, in particular over
the validity of the proposed legal base and other serious issues
arising from the detailed provisions". The Attorney General
adds that the Austrian Presidency has canvassed a "new approach"
which would involve suspending work on the proposal for the time
being and that it will be for the European Council to decide future
handling.
18.20 The Attorney General has supplemented the information
provided in his Explanatory Memorandum in a letter of 11 February
2006 to the chairman of our sister committee in the Lords (the
European Union Committee). In that letter, the Attorney General
states that the future of the proposal "is now uncertain".
As a number of difficulties and fundamental differences of view
between Member States had become evident, the Austrian Presidency
held a discussion on the future of the proposal at an informal
meeting of Justice and Home Affairs Ministers in Vienna on 12
to 14 January. The Attorney General reports that there was some
support for the re-directing of the proposal to focus on the general
safeguarding of procedural law principles which serve to protect
the fundamental rights of the individual such as providing for
a proper hearing, a fair trail and legal remedies, but the matter
would be considered again at the Justice and Home Affairs Council
in February. The Attorney General adds this comment:
"The Austrian Presidency has proposed a
new approach, and we have some sympathy with this. We took the
draft instrument as far as we could under our Presidency, but
it was clear that some Member States have real problems with the
principle of any legislation in this area. Serious difficulties
had emerged over what precisely should or should not be included
within the scope of the Framework Decision, and in particular
over the issue whether there should be limitations on certain
rights in relation to terrorism and serious organised crime."
18.21 In commenting on the detailed provisions
of the proposal, the Attorney General notes that the provisions
of recording interviews with suspects (Article 9) have been deleted
since the majority of Member States "were strongly opposed"
and the UK alone was not able to persuade the other Member States
of the usefulness of this provision.
Conclusion
18.22 Since the future of this proposal is now
evidently in doubt, we confine ourselves to the observation that
the proposal was over-ambitious in its scope and purpose. Both
we and our predecessors were particularly concerned that the proposal
sought to cover the generality of criminal procedure, whether
or not the case had any cross-border element or other feature
relevant to the international judicial cooperation envisaged in
the EU Treaty. We shared the view of those Member States which
considered that a proposal of this scope could not properly be
adopted under Article 31(1)(c) EU.
18.23 It is also apparent that, with the abandonment
of recordings of interviews, the proposal now provides no benefit
which is not already provided for, and more widely and more effectively,
by the European Convention on Human Rights.
18.24 If a new approach is now to be considered,
we consider that a more realistic and appropriate course would
be to consider measures more closely linked to the mutual recognition
of judicial decisions, such that a judicial decision would not
be recognised and enforced in another jurisdiction unless it satisfied
certain minimum standards of fairness, but without seeking to
regulate the generality of criminal proceedings across the Member
States. Such an indirect approach appears to us to be more justifiable
under Article 31(1) EU.
18.25 We should be grateful for the comments of
the Attorney General on these points and for further information
on the outcome of discussions on the future of this proposal.
In the meantime, we clear document (a) and the grounds that it
has been superseded, but we shall hold document (b) under scrutiny.
57 Article 34(1) provides for common action on judicial
cooperation in criminal matters, which may include (Article 34(1)(c))
"ensuring compatibility in rules applicable in the Member
States, as may be necessary to improve such co-operation". Back
58
HC 614-i (2005-06) Q1. Back
59
HC 614-i (2005-06) Q19. Back
60
This appears to correspond to Article 6(3)(a) and (e) ECHR and
the right must therefore be to interpretation in languages other
than those of EU Member States. Back
61
The text refers to 'Member States', possibly giving rise to an
unhelpful ambiguity that it applies only to obligations assumed
collectively by the Member States, whereas it seems that it is
the obligations of an individual Member State which are in issue. Back
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