Select Committee on European Scrutiny Twenty-Sixth Report


14 Procedural rights in criminal proceedings

(27268)

15432/05

Draft Framework Decision on certain procedural rights in criminal proceedings throughout the European Union

Legal baseArticle 31(1)(c) EU; consultation; unanimity
DepartmentOffice for Criminal Justice Reform
Basis of considerationMinister's letter of 23 March 2006
Previous Committee ReportHC 34-xxi (2005-06), para 18 (8 March 2006) and see HC 34-vi (2005-06), para 14 (19 October 2005), 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)
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information awaited

Background

14.1 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.

14.2 We shared the doubts of the previous Committee as to whether the proposal was properly based on Article 31(1)(c) EU[33] since it would have applied also to purely internal cases involving only nationals of the Member State of trial and in cases where no question of recognition and enforcement in another jurisdiction could arise. 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 (concerns which we and the previous Committee shared). The then Minister confirmed in her oral evidence to us on 26 October 2005[34] 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 and that there were some other Member States which were sympathetic to this view.

14.3 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 was 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.

14.4 The Attorney General (Lord Goldsmith QC) informed us on 8 February 2006 that the European Council had 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 added that the Austrian Presidency had canvassed a "new approach" which would involve suspending work on the proposal for the time being and future handling would be for the European Council to decide.

14.5 When we considered the revised proposal on 8 March 2006 we observed that the proposal was over-ambitious in its scope and purpose and repeated our concern that it 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 and Article 31(1)(c) in particular. We also considered that, with the abandonment of recordings of interviews, the proposal now provided no benefit which was not already provided for, and more widely and more effectively, by the European Convention on Human Rights.

14.6 In relation to the consideration of a new approach, we suggested that it might be more realistic and appropriate (having regard to Article 31(1) EU) 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.

14.7 We asked the Attorney General for his comments on these points and for further information on the outcome of discussions on the future of this proposal.

The Attorney General's reply

14.8 The Attorney General (Lord Goldsmith QC) replies to these comments in his letter of 23 March 2006. The Attorney General informs us that the Austrian Presidency did not refer the matter to the Justice and Home Affairs Council in February as had been expected, but instead had referred the matter to the Council Working Group so as to clarify what operational need, if any, lay behind the proposal.

14.9 The Attorney General reports that, at the Council Working Group meeting on 6 March 2006, Member States agreed that there was no evidence, having regard to actual cases, that the Framework Decision was in fact required to facilitate co-operation. The Attorney General adds that some Member States nevertheless continued to hold out for a legally binding instrument to be agreed in this area, despite the deep divisions which were described in his Explanatory Memorandum, and that in the absence of consensus on the way forward it had been decided that the measure "would require further political guidance".

14.10 The Attorney General comments that in view of this apparent impasse, there may now be a need to consider non-legislative alternatives to a Framework Decision such as a political declaration and some EU-funded schemes to improve the provision of legal advice and interpreters.

14.11 In relation to our suggestion that consideration should be given to measures more closely linked to the mutual recognition of judicial decisions, so that a decision would not be recognised unless it met certain minimum standards of fairness, the Attorney General comments that he has "serious doubts as to whether there would be any mileage in promoting this" and that "no Member State appears to believe it practicable or desirable to confine the Framework Decision to cross-border cases". The Attorney General adds that as all Member States are already signatories to the European Convention on Human Rights, which guarantees the right to a fair trial (Article 6 ECHR) and to an effective remedy (Article 13) against miscarriages of justice, and because all EU Member States are democracies based on the rule of law, "there is already a sufficient basis for mutual confidence in the quality of judicial decisions".

14.12 The Attorney General observes that it is already possible for a judge in an executing State to examine whether there has been an infringement of fundamental rights in a specific case before taking the decision to recognise and execute a foreign order, and that this would seem to meet the our point. The Attorney General adds that he understands that in the context of judicial co-operation there have already been cases in which defendants have sought to challenge the recognition and enforcement of orders on grounds of breach of fundamental rights, but that these arguments have not been accepted, the judges generally presuming in favour of Member States' application of the ECHR.

Conclusion

14.13 We are grateful for this further information from the Attorney General. We find it striking that Member States should now agree that there is no evidence that the proposed Framework Decision is required to facilitate judicial co-operation. In our view, this must fatally undermine any reliance on Article 31(1)(c) EU as the legal base for the proposal.

14.14 We look forward to further information in due course from the Attorney General as to what will now become of the proposal, which remains under scrutiny.


33   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 cooperation". Back

34   HC 614-i (2005-06), 26 October 2005. Back


 
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