Select Committee on European Scrutiny Twenty-Second Report


6 Procedural rights in criminal proceedings

(a)
(28349)
5119/07


(b)
(28350)
5872/07


(c)
(28516)
7602/07


(d)
(28515)
7349/07


(e)
(28581)
8545/07


(f)
(28535)
8200/07

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



Draft Resolution of the Member States meeting within the Council on practical action to promote fairness in criminal proceedings with particular reference to access to free legal aid and to an interpreter




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




Draft Resolution of the Member States meeting within the Council on practical action to promote fairness in criminal proceedings with particular reference to access to free legal aid and to an interpreter



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




Observations by the Council of Europe on a new version of the proposal for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union

Legal base (a), (c) and (e) Article 31(1)(c) EU; consultation; unanimity; (b) and (d)
Deposited in Parliament (c) and (d) 3 April 2007

(e) 27 April 2007

(f) 12 April 2007

Department Office for Criminal Justice Reform
Basis of consideration EM of 11 May 2007
Previous Committee Report (a) and (b) HC 41-xii (2006-07), para 7 (7 March 2007) and see HC 34-xl (2005-06), para 7 (1 November 2006); (27268) 15432/06 HC 34 xxxiv (2005-06) para 15 (5 July 2006); HC 34-xxvi (2005-06) para 14 (26 April 2006); HC 34-xxi (2005-06), para 18 (8 March 2006)

(c) to (f) None

To be discussed in Council Justice and Home Affairs Council 12-13 June
Committee's assessment Legally and politically important
Committee's decision (a) — (c) and (f) cleared; (d) and (e) not cleared but agreement need not be withheld pending consideration

Background

6.1 In our consideration of earlier versions of the draft Framework Decision on procedural rights in criminal proceedings, we shared the doubts of the previous Committee (and also of Austria, the Czech Republic, Denmark, Ireland, Malta and Slovakia) as to whether the proposal was properly based on Article 31(1)(c) EU,[13] since it would have applied also to purely internal cases where no question of judicial cooperation or of recognition and enforcement in another jurisdiction could arise. The Attorney General (Lord Goldsmith QC) subsequently informed us 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 draft Framework Decision was in fact required to facilitate cooperation, and that at the JHA Council in June 2006, a number of Member States continued to object on principle that there was no basis in the treaties for "such intrusion into wholly domestic situations".

6.2 The Attorney General informed us that, several Member States, including the UK, also expressed concern (as we had ourselves) about the justification for, and dangers of, creating parallel and overlapping European jurisdictions on human rights and drew attention to the serious concerns which had been expressed in this regard by the Council of Europe to the Austrian Presidency.

6.3 In the course of 2006 the Council agreed to consider a non-binding text in the form of a draft resolution based on a proposal by the United Kingdom, the Czech Republic, Ireland, Malta, Cyprus and Slovakia, with a package of other practical measures to enhance compliance with the European Convention on Human Rights (ECHR). The question of whether to proceed by way of a binding Framework Decision or a non-binding resolution was to be left until later.

6.4 We strongly supported the efforts by the Government to promote a resolution instead of a draft Framework Decision. We considered that the Explanatory Memorandum submitted by the Attorney General on 26 February 2007 amply demonstrated the dangers of devising at EU level a system of rules in an area which has long been occupied by the ECHR. In his Explanatory Memorandum the Attorney General noted a number of divergences from the principles of the ECHR in the text of the Framework Decision and explained that, by contrast, the draft resolution was designed to encourage Member States to take practical measures based on recognised good practice (often deriving from ECHR case law) to improve compliance with the basic criminal procedural standards which are set out in Article 6 ECHR.

6.5 We held the documents under scrutiny pending a further account from the Attorney General on developments. In the meantime we noted that in her statement on the Justice and Home Affairs Council on 19-20 April the Parliamentary Under-Secretary of State at the Home Office (Joan Ryan) said that there had been a "lengthy discussion" of the draft Framework Decision and that the Government had argued strongly for limiting the scope of the Framework Decision to European Arrest Warrant (EAW) cases (i.e. those involving extradition to a Member States), with action on wholly domestic cases to be pursued "via a package of concrete practical measures, backed by a strong political resolution". The Minister stated that the Presidency had put forward an oral proposal along these lines, but including a review clause and a commitment to examine whether there "could legally be a formal opt-in allowing some Member States to apply the Framework Decision to domestic cases" and also to "work to try to define 'cross-border' more widely than the EAW". The Minister added that the Presidency had set the June JHA as a deadline for "agreeing the main principles".

The revised proposals

6.6 Further versions of the Resolution and Framework Decision have been produced, the current version of the Resolution being document (d) and of the Framework Decision being document (e). Document (f) is a set of observations by the Council of Europe on the relationship of the draft Framework Decision with provisions of the European Convention on Human Rights (ECHR). The earlier versions of the Framework Decision and Resolution (documents (a) to (c)) have now been superseded.

THE REVISED DRAFT RESOLUTION

6.7 The revised draft Resolution (document (d)) is a proposal by the United Kingdom, the Czech Republic, Ireland, Malta, Cyprus and Slovakia for a resolution on practical action to promote fairness for those arrested or charged in criminal proceedings. The draft is in terms largely similar to those of the version we have already considered, but its scope appears to have been widened in that it now refers to "fairness for those arrested or charged in criminal proceedings", whereas the previous version referred to "fairness in criminal proceedings with particular reference to access to free legal aid and to an interpreter".

6.8 As before, the Resolution provides for promoting full compliance with Articles 5 and 6 ECHR as developed in the case law of the European Court of Human Rights, for disseminating the ECHR case law, for a national action plan to enhance and verify compliance with minimum standards in relation to the provision of information, legal aid and the assistance of interpreters and translators, and for extending and participating in peer evaluation mechanisms to safeguard key procedural rights in criminal proceedings.

6.9 The revised draft invites the Commission to provide support and financial assistance for the introduction of facilities for the recording (by audio or video recording) of police interviews with suspects. The recommendation is significantly wider in scope than its predecessor, which referred only to the tape-recording of proceedings conducted through an interpreter. The recommendation would therefore apply to all cases where a suspect is interviewed, irrespective of any requirement for an interpreter.

THE REVISED DRAFT FRAMEWORK DECISION

6.10 The revised text of the Framework Decision (document (e)) continues to make provision for rights to information, to contact a legal representative and to interpretation and translation, but a number of amendments have been made. The revised text is preceded by a covering note to the Council (and which appears to have been considered at the April JHA Council) setting out a list of outstanding questions.

6.11 The covering note recalls that the fundamental question of the scope of the Framework Decision "has not yet been solved", and sets out two options proposed by the Presidency. The first ('Option A') which is said to be "preferred by a large majority of delegations" would involve adoption of the Framework Decision together with the non-binding Resolution. The second ('Option B') would involve limiting the scope of the Framework Decision to cross-border cases, in particular EAW cases, together with the Resolution. The covering note goes on to state:

"The Presidency notes, however, that the issue of limitation to cross-border is a difficult one and does not have the support of most delegations at the moment. In addition, past attempts to find a workable definition for cross-border cases have not been successful."[14]

6.12 The covering note also records doubts expressed by the Commission on the compatibility of Article 3(1)(b) and Article 5 of the Framework Decision with the provisions of the ECHR.[15]

6.13 The revised text of the draft Framework Decision is largely similar to the previous version which we have considered. The material changes appears to be as follows. The fourth recital appears to narrow the scope of the proposal since it no longer refers to extradition or the transfer of an arrested person to an international court. A new recital (6a) has been added to provide that the right of a person to defend himself or to examine and have examined witnesses against him may be "overridden" where this is "necessary in the interests of justice". A seventh recital provides that the Framework Decision sets minimum standards and that nothing in it prevents Member States from adopting measures further to enhance the rights of the individual in criminal proceedings.

6.14 Article 1 (which concerns the subject-matter and scope of the proposal) has been amended by the inclusion of a definition of "criminal proceedings", these being defined as "any proceedings which could lead to a criminal penalty ordered by a criminal court". Article 1 also now provides that the Framework Decision "extends" the rules defining the rights it establishes to proceedings for the execution of a European Arrest Warrant.

6.15 As before, Article 1(4) provides that the meaning of those provisions of Articles 2 to 5 of the Framework Decision which "correspond" to the rights guaranteed by the ECHR "shall be the same" as those laid down by the Convention and the case law of the European Court of Human Rights. Article 1(5) excludes disciplinary and administrative proceedings form the scope of the Framework Decision. The provision also excludes proceedings for "military offences" or for offences subject to military jurisdiction insofar as Member States have made a reservation under "section" 57 of the ECHR.

6.16 Article 2(1) now refers expressly to a person arrested in connection with a criminal offence, and provides that he is to be informed of the reasons for the arrest and of relevant procedural rights which may be exercised at that stage. Article 2(2) deals separately with the rights of the person who is charged with a criminal offence. In such a case, the information to be given corresponds to that referred to in Article 6(3)(a) ECHR (i.e. "the nature and cause of the accusation"). Corresponding provision is made in a new Article 2a for proceedings under a European Arrest Warrant.

6.17 Article 3(1) and 3(2) now refer separately to the rights of a person who is arrested and the rights of a person who is charged. Article 3(1) accordingly provides for a right to contact a legal representative on arrest and to have such a representative present during questioning, and to obtain legal assistance of his own choosing and, when the interests of justice so require, to be given such assistance free of charge. The right to have the opportunity of consulting a representative privately has now been qualified by a reference to the possibility of monitoring if the "interests of justice so require". Where a person has been charged, Article 3(2) provides for rights similar to those under Article 6(3)(b), (c) and (d) ECHR relating to the preparation of the defence,[16] legal assistance and the examination of witnesses. Corresponding provision is now made separately for EAW cases in Article 3a.

6.18 Article 4 requires Member States to ensure that a person who is arrested or charged is provided with the free assistance of an interpreter if he does not understand or speak the language used in court, and is in substantially the same terms as the previous version. Again, separate provision is made in a new Article 4a for EAW cases.

6.19 The rights to translation under Article 5 have now been qualified. First, the provision no longer refers to translation of those documents "necessary to ensure a fair trial" but to the "detention order, the indictment and the judgment". Secondly, provision is made allowing only an "oral summary" of these documents "where compatible with the interests of justice". Similar provision is made under a new Article 5a in relation to EAW cases.

6.20 The remaining provisions of the Framework Decision are substantially unchanged.

THE OBSERVATIONS BY THE COUNCIL OF EUROPE

6.21 Document (f) contains a series of critical observations on the draft Framework Decision by the Council of Europe Secretariat. The paper notes that the Council of Europe was asked by the General Secretariat of the Council on 22 March to provide a written opinion by 27 March on the new version of the Framework Decision. In our view quite understandably, the Council of Europe regrets the "extremely short deadline" it was given to prepare its observations.

6.22 The paper recalls that, throughout the period of consultation, the Council of Europe Secretariat has emphasised the importance of ensuring coherence and consistency between the proposed Framework Decision and the ECHR, as interpreted by the European Court of Human Rights. The Council of Europe formulated three basic requirements. First, that the Framework Decision should be based on the existing ECHR standards and should "follow their wording as closely as possible", secondly that there should be specific provisions ensuring consistency of interpretation of the Framework Decision with the ECHR "the application of which must never lead to a level of protection lower than that guaranteed by the ECHR" and, thirdly, that where the Framework Decision departs from the ECHR, it should be clearly stated whether its provisions are intended to set a higher standard, or merely to set out ways of complying with existing ECHR standards.

6.23 The Council of Europe states that compliance with the first of these requirements has been reduced in the new draft. In this connection, it points to the "qualifications and restrictions" in Article 3(1)(b) and Article 5 "which tend to move these rights away from the standards of the ECHR and/or the Strasbourg court's case-law".

6.24 The Council of Europe states that the second requirement "continues to be fulfilled in principle", but that it would require more detailed examination to establish whether the provisions on interpretation are still sufficient to ensure coherence and consistency with the ECHR.

6.25 The Council of Europe also states that, in the absence of a clear indication of the rights whose meaning and scope is still intended to correspond to the ECHR, "it is unfortunately no longer possible to conclude with certainty that the current draft fully meets the third requirement".

6.26 The Council of Europe notes that the third recital to the proposal states that no Member State may fail to meet the standards of the ECHR and questions the benefit of trying to depart from the ECHR wording and standards, knowing that in any event a case adjudicated at the domestic level will be liable to be made the subject of an application to the European Court of Human Rights.

6.27 The Council of Europe concludes as follows:

"In the light of the rather substantial amendments made to the draft Framework Decision, the lack of further information about their intent and the impossibility to carry out a more detailed examination within the very short deadline given, the Council of Europe Secretariat is regrettably not in a position to state that the present draft still contains sufficient safeguards to ensure coherence and consistency with the ECHR."

The Government's view

6.28 In a detailed and helpful Explanatory Memorandum of 11 May 2007, the Attorney General (Lord Goldsmith) informs us that the JHA Council concluded that there was general agreement for a non-binding political Resolution on practical measures and for a Framework Decision limited to European Arrest Warrant cases, and that there should be further consideration as to whether the Framework Decision could apply to a wider category of cross-border cases, and that "subject to legal advice, if some form of option for covering domestic cases could be available for Member States that wished it".

6.29 The Attorney General notes that the proposed Framework Decision is based on Article 31(1)(c) EU which provides for "ensuring compatibility in rules applicable in the Member States as may be necessary to improve judicial co-operation in criminal matters". The Attorney General informs us that the UK has entered a formal reservation regarding the necessity, and thus the legal base, for the Presidency text insofar as it covers domestic cases. The Attorney General explains that the UK will scrutinise the legal basis of any revised Framework Decision but considers that the "necessity" issue differs if the rules of the Framework Decision were to be limited to cases that are strictly cross-border in nature, that is, cases in which a European Arrest Warrant has been issued. The Attorney General adds that the Government is still not satisfied that the current version of the Framework Decision properly complies with the principle of subsidiarity, but that this position would not necessarily apply to a measure which was limited to cross-border cases, and that the Government will review the issue in the light of the final proposal.

6.30 The Attorney General makes a number of detailed observations on the draft Framework Decision, pointing out that the fundamental definition of criminal proceedings in Article 1 remains unsatisfactory, and refers to the criticisms made by the Council of Europe in this regard. The Attorney General observes that it is unsatisfactory that the Framework Decision should leave this basic issue of scope to the ECJ.

6.31 In relation to the comment by the Presidency that "past attempts to find a workable definition of cross-border cases have not been successful" the Attorney General notes that "this is precisely because previous drafts did not define cross-border cases as EAW cases but sought a wider scope".

6.32 The Attorney General considers that Article 1(4) remains unsatisfactory. It aims to secure consistency with the ECHR, but does not explain which provisions of the Framework Decision "correspond" to ECHR rights and draws our attention to the criticisms made in this regard by the Council of Europe. The Attorney General also considers Article 1(5) to be problematic for the UK since it only excludes military proceedings from the scope of the Framework Decision where a reservation has been made under Article 57 ECHR, and the UK made no such reservation when it ratified the ECHR in 1951 and cannot do so retrospectively.

6.33 In relation to Article 2 the Attorney General notes that a distinction is now made between those who are arrested and those who are charged, and that this removes the confusion that existed in the previous version on the operation of rights under Articles 5 or 6 ECHR. Nevertheless, it is also pointed out that there is a lack of certainty as to which rights are relevant at this stage of the procedure. Article 5 ECHR only requires information to be given on the reasons for the arrest. The Attorney General points out that the UK gives information about continuing procedural rights at the time of arrest but that "there remains a danger that the lack of clarity in this article could lead to interpretations by the ECJ and might cause costly changes to our arrangements". As with similar problems concerning Articles 3, 4 and 5, the Attorney General notes that these could be avoided if the provisions were properly "tied back" to those of the ECHR.

6.34 In relation to the draft Resolution, the Attorney General points out that the most significant change is to make clear that the Commission should consider supporting States who wish to introduce tape-recording of all police interviews, noting that "practical experience shows that routine tape-recording of police interviews provides effective protection to suspects and to the police".

Conclusion

6.35 We thank the Attorney General for again providing us with a helpful and informative Explanatory Memorandum. We agree with the points he has made and we recall our previous comment on the lack of wisdom of proceeding with a binding instrument, such as a Framework Decision, in a field which has long been occupied by the ECHR.

6.36 This lack of wisdom is further demonstrated by the views of the Council of Europe, which we trust will be given proper consideration by the Council. We find it scarcely credible that a body with such experience and authority in the field of human rights should have been given a mere five days by the Council Secretariat in which to present an opinion on the compatibility of the proposal with the ECHR. We consider this to be as discourteous as it is inefficient.

6.37 As for the substance of the comments by the Council of Europe Secretariat, we respectfully concur with them, and find it deeply troubling that "qualifications and restrictions" should have been placed on ECHR rights by the present proposal. Given the pre-existing duty of Member States to comply with the ECHR, adoption of a conflicting Framework Decision will serve no purpose other than to create confusion.

6.38 We therefore again repeat our strong support for a Resolution, rather than a Framework Decision, as we believe this will minimise the risk of conflict with the ECHR and do more to promote the adoption of practical measures of benefit to the citizen.

6.39 We note that the Presidency appears to be pressing for a political agreement on this proposal at the June JHA Council. In our view, the proposal is not in a fit state for adoption and we doubt it will be for some time.

6.40 We clear documents (a) to (c) and (f), but shall hold documents (d) and (e) under scrutiny, but we indicate to the Attorney General that he need not withhold agreement to the Resolution in any event, and that agreement need not be withheld to the Framework Decision if it is confined to European Arrest Warrant cases (or other clearly cross-border cases) in the way the Attorney General has suggested, and if the difficulties with Article 1(4) and (5), and other divergences from the ECHR have been resolved.





13   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

14   This is somewhat misleading. There do not appear to have been any attempts, in this context, to devise a definition of 'cross-border cases'. Such attempts have been made in the context of civil measures under Article 65 EC, and appear to us to have been successful. Back

15   This appears to relate to the concern expressed by the Council of Europe that the rights referred to have been qualified in the Framework Decision e.g. by referring to the 'interest of justice' and thus move away from the standards fixed by the European Court of Human Rights. Back

16   The discrepancy we noted between Article 6(3)(b) ECHR (refers to 'adequate time and facilities' for the preparation of his defence) and Article 3(2) of the Framework Decision which referred to 'adequate time and opportunity' has now been resolved by the adoption of the language of Article 6(3)(b) ECHR.  Back


 
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