10 Roadmap for the protection of suspects
in criminal proceedings |
||Roadmap with a view to fostering protection of suspected and accused persons in criminal proceedings
|Deposited in Parliament||8 July 2009
|Basis of consideration||EM of 22 July 2009
|Previous Committee Report||None; but see HC 41-xxii (2006-07), chapter 6 (16 May 2007); HC 41-xii (2006-07), chapter 7 (7 March 2007); and see HC 34-xl (2005-06), chapter 7 (1 November 2006); (27268) 15432/06 HC 34-xxxiv (2005-06) chapter 15 (5 July 2006); HC 34-xxvi (2005-06) chapter 14 (26 April 2006); HC 34-xxi (2005-06), chapter 18 (8 March 2006)
|To be discussed in Council||23 October 2009
|Committee's assessment||Politically important
|Committee's decision||Not cleared; further information requested
10.1 The "roadmap" is a Council political declaration
in another form. It sets out the Swedish Presidency's policy for
the development of procedural safeguards in criminal proceedings
in the EU. It is non-binding statement of intent to which Member
States are asked to sign up.
10.2 The introductory paragraphs set out the premise of the roadmap.
A consequence of the successful establishment of an area of free
movement and residence in the EU is an increase in cross-border
crime. This means a growing number of people are becoming involved
in criminal proceedings in a Member State other than that of their
residence. In general, these people will be unaware of what rights
they may have, added to which is often a language barrier. This,
the Presidency argues, "calls for specific measures on procedural
rights, in order to ensure the fairness of the criminal proceedings".
Such measures "will enhance citizens' confidence in a European
Union that guarantees procedural rights".
10.3 They will also help develop the principle of
mutual recognition of judicial decisions, a cornerstone of cross-border
judicial cooperation under the third pillar of the EU. However,
for mutual recognition to work the competent authorities of Member
States must have trust in the criminal justice systems of other
Member States the principle of "mutual trust";
and common EU standards for the protection of procedural rights
is an important way of developing mutual trust within the EU.
10.4 The Presidency points to recent studies that
show wide support among legal experts for EU legislation on procedural
rights. These sentiments
are echoed in the European Parliament. In its Communication for
the Stockholm programme, the European Commission observes that
strengthening the rights of the defence is vital to maintaining
mutual trust between Member States and public confidence in the
EU. A lot of progress
has been made in the area of judicial and police cooperation on
measures that facilitate prosecution; "[i]t is now time to
take action to improve the balance between these measures and
the protection of procedural rights of the individual. We must
be able to guarantee our citizens safety and the rule of law,
no matter where in the Union they decide to study, work or live".
10.5 The Presidency acknowledges that the European
Convention on Human Rights (ECHR) provides "a very important
common basis" for Member States to have trust in each other's
criminal justice systems, but considers that nonetheless there
is room for action by the EU "to ensure full implementation
and respect of ECHR standards, as well as, where appropriate,
to expand existing standards to make their application more uniform".
10.6 In terms of procedure, the Presidency recommends
a step-by-step approach to the measures set out in the roadmap
(the Commission's 2004 all-encompassing draft Framework Decision
on procedural rights was abandoned in 2007 through lack of agreement
in the Council).
10.7 The Council is invited to agree to the Roadmap
on procedural rights. The rights included in the roadmap are considered
to be "fundamental priority rights" which should be
given priority at this stage. The Roadmap may in due course be
complemented by further legislative and non-legislative measures.
The Council is also invited to make the following statement:
"The Council agrees that the measures listed
in the "roadmap on procedural rights" should be examined
and adopted with a view to creating a set of procedural rights
fostering the protection of suspected and accused persons in criminal
proceedings. The Commission is invited to submit proposals regarding
the measures set out in the roadmap, and to present the Green
Paper mentioned under point F. The Council will examine all proposals
presented in the context of the roadmap and pledges to deal with
them as matters of priority. The Council shall act in full cooperation
with the European Parliament in accordance with the applicable
10.8 Measure A concerns "Translation and
Interpretation". The Commission has already proposed
a draft Framework Decision on this.
10.9 Measure B concerns "Information on Rights
and Information about the Charges". This states that
a suspect should get information on his/her basic rights in writing,
preferably in the form of a letter of rights. The suspect should
also be entitled to receive information about the nature and cause
of the accusation against him or her. This information should
include access to the "file" for the individual concerned.
10.10 Measure C concerns "Legal Aid and Legal
Advice". The short explanation states that the right
to legal advice is fundamental to safeguarding the fairness of
proceedings; the right to legal aid should ensure equal access
to legal advice.
10.11 Measure D concerns "Communication with
Relatives, Employers and Consular Authorities". The short
explanation states that a person deprived of liberty must be able
to inform relatives, employers and consular authorities of the
deprivation of liberty.
10.12 Measure E concerns "Special Safeguards
for Vulnerable Persons". The short explanation states that
it is important that special care is shown to vulnerable suspects
and defendants, in order to safeguard the fairness of proceedings.
10.13 Measure F concerns "A Green Paper on
the Right of Review of the Grounds for Detention". The
short explanation states that the time a suspect spends in pre-trial
detention varies considerably between Member States. "Long
periods of detention are detrimental for the individual, can have
a negative effect on the mutual trust and the judicial cooperation
between Member States and do not represent the values for which
the European Union stands". The Green Paper should examine
the possibility of establishing a periodical review for the justification
of continued detention.
The Minister's Explanatory Memorandum
10.14 In his Explanatory Memorandum of 22 July, the
Parliamentary Under-Secretary of State at the Ministry of Justice
(Lord Bach) states that the Government agrees that there is room
for further action at EU level in the field of procedural safeguards,
beyond what is already provided by the ECHR, to further enhance
trust in other Member States' justice systems. The Minister describes
the roadmap as a "direction of travel", whose object
is to ensure "full implementation and respect of Convention
standards". The Government supports this starting point and
considers it important "to build on the existing rights and
the important work which has already been done to drive up criminal
procedural law standards."
10.15 The Minister describes the draft Council statement
as "uncontroversial", but thinks that the reference
to "creating a set of procedural rights" could give
the misleading impression that the roadmap is focussed on creating
new rights or legislation, neither of which he believes to be
the case. The statement should be refined to make clear that the
intention is to "enhance existing rights, not create new
10.16 He supports the step-by-step approach as being
a more pragmatic and effective means of enhancing procedural safeguards
than an all-encompassing instrument as proposed by the Commission.
10.17 Turning to each measure the Minister states
- A interpretation and
translation. The Government broadly welcomes these proposals
- B information on rights and nature of
charge. The Government would in principle welcome action on a
letter of rights and entitlement to receive information about
the nature of the charge. The reference to "file" is
a misnomer in the context of the common law; and, irrespective
of the vocabulary, the Government has general concerns about access
to investigation papers being prescribed at EU level.
- C legal aid and legal advice. The Government
would welcome a procedure that guaranteed British citizens adequate
access to legal advice and representation abroad, but would not
support anything that would increase its current obligation under
Article 6(3)(c) of the ECHR to provide legal assistance. The Government
will therefore seek clarification of this measure, while welcoming
in principle its inclusion for action.
- D communication with relatives, employers
and consular officials. The Government has no objections to this
measure but is uncertain whether it is necessary or whether
adherence to the 1963 Vienna Convention on Consular Relations
is problematical in the EU. It is also unclear why there is a
need for an employer to be contacted. The Government will seek
- E special safeguards for vulnerable persons.
The Government will clarify which category of people the measure
is intended to cover.
- F review of the grounds of detention.
The recommendation for a Green Paper sits at odds with the other
measures, all of which propose concrete action. The Government
will discuss with partners whether the inclusion of this measure
10.18 We thank the Minister for his Explanatory
Memorandum; but we are unclear why, if all of the institutional
actors in the EU now advocate a step-by-step approach to enhancing
procedural safeguards in the EU, there is a need for a politically
binding Council resolution encompassing all these rights. Our
concern is that the draft Council statement asks Member States
to agree not only that the measures in the roadmap be "examined",
but also "adopted". Is it really the case that the Government
can at this stage agree that a measure on reviewing grounds of
preventative detention, measure F, should be adopted? We strongly
urge the Government not to bind itself politically to such "a
direction of travel" (as the Minister describes it) at this
stage, but to consider each right in turn without advance preliminary
political commitment. And if the statement is to be retained,
to seek with partners to remove the commitment to "adopting"
10.19 The relationship between these measures
and the procedural safeguards provided under the European Convention
on Human Rights (ECHR) is unclear. The second paragraph of the
introduction to the roadmap states that there is room at EU level
to ensure full implementation and respect for ECHR standards "as
well as, where appropriate, to expand existing standards
or to make their application more uniform". The 12th
paragraph, however, states that "any new legislative acts
in this field should be coherent and consistent with the minimum
standards" of the ECHR. We also note that the Minister states
at paragraph 16 of his Explanatory Memorandum that the Government
supports the "starting point" of using the ECHR as a
"foundation for existing EU procedural rights
considers it important to build on the existing ECHR rights."
For reasons we also report in the subsequent chapter, it is in
our view vital that the EU does not create an additional tier
of procedural rights in criminal proceedings to those already
provided by the ECHR. To do so would undermine, rather than enhance,
the achievements of the ECHR and lead to considerable legal uncertainty.
We hope that this is not the aim of the EU's policy on enhancing
procedural safeguards, and ask the Government to allay further
confusion by seeking with partners to ensure that the roadmap
states as much, and to remove reference to expanding ECHR rights.
10.20 Given the above, we would also be grateful
to know if the Council of Europe has been consulted on the roadmap.
10.21 The Minister states that the draft Council
statement "could give the misleading impression that the
roadmap is focussed on creating new rights or on legislation".
It is our impression from reading the roadmap that it is indeed
focussed exactly on that. We would be grateful for urgent clarification
10.22 We ask the Minister to clarify whether measures
B-F (measure A is considered in the subsequent chapter) are intended
to apply only to cross-border criminal cases, or to domestic criminal
cases as well as cross-border criminal cases.
10.23 We look forward to a response from the Government
on the above points, and in the meantime keep the draft roadmap
29 Analysis of the future of mutual recognition in
criminal matters in the EU, report of 20 November 2008 by the
Université Libre de Bruxelles Back
COM (2009) 262 (point 4.2.2) Back
We report on the draft Framework Decision on interpretation and
translation rights in criminal proceedings in the subsequent chapter
of this week's report. Back