2 Interpretation and translation
rights in criminal proceedings
| (31224)
16801/09
+ ADDs 1-3
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| Draft Directive on the rights to interpretation and translation in criminal proceedings
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| Legal base | Article 82(2)(b) TFEU; QMV; co-decision
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| Department | Justice
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| Basis of consideration | Minister's letter of 22 March 2009
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| Previous Committee Report | HC 5-vii (2009-10), chapter 7 (20 January 2010)
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| To be discussed in Council | No date set
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| Committee's assessment | Legally important
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| Committee's decision | Not cleared; further information requested
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Previous scrutiny
2.1 We last reviewed this proposal in January, when we asked,
among other things, to be kept informed of the progress of negotiations.
The Minister's letter
2.2 The Parliamentary Under-Secretary at the Ministry of Justice
(Lord Bach) wrote on 22 March to inform us of the progress of
negotiations with the European Parliament. The aim is for a first
reading agreement. The Rapporteur, Baroness Ludford, issued a
draft report on 5 March, which was discussed in the LIBE committee
on 17 March. However, the Commission has issued an alternative
proposal (reported elsewhere in this week's Report) which is likely,
the Minister says, to slow down progress, and inform the views
of the European Parliament.
2.3 The Government's views on the proposed amendments
are as follows:
- Relationship with the European
Convention on Human Rights (ECHR) and the Charter of Fundamental
Rights. The report proposes
including a new provision in Article 1 stating that the provisions
of this Directive which correspond to rights guaranteed by the
European Convention on Human Rights (ECHR) or by the Charter shall
be interpreted and implemented consistently with those rights,
as developed in the relevant case law. The Government supports
clarity on the relationship between this Directive and the rights
under the ECHR; in his Explanatory Memorandum of 30 December,
the Minister explained that the Government supported the inclusion
of recital 18 which helped to clarify this point. The Government
therefore welcomes the intention behind the European Parliament's
amendment concerning the ECHR. It is also considering the wording
of the added references to the Charter in this and other draft
amendments.
- Detention. The draft
amendments propose to extend the scope of the proposal to detention,
and refer to the "rules of detention" and "official
contacts" between the detaining authorities and the suspect.
The Government's initial view is that detention is a distinct
issue and the amendments proposed fall outside the scope of the
fair trial right and the rights after arrest under Article 5 ECHR.
The Government sees the aim of this measure as being to ensure
trust and confidence that a suspect has had or will get a fair
trial for the purposes of mutual recognition of judicial judgments
and decisions. Measure F of the Roadmap will provide an opportunity
to consider pre-trial detention.
- Communication between lawyer and client.
The draft amendments propose stating that interpretation of communication
between the suspect and his lawyer shall be provided throughout
the proceedings. The Government welcomes this clarification.
- Translation. The Rapporteur
has proposed an amendment to list essential documentary evidence
to be translated. The Government believes that such decisions
are best made at Member State level, given this will require a
specific assessment in each case to determine what translation
is needed to safeguard a suspect's rights. In the draft amendments,
the list of essential documents includes essential documentary
evidence and written legal advice. The Government is not currently
convinced that it is necessary to specify essential documentary
evidence, given that there is a general obligation in the draft
Directive to translate all essential documents, and in the draft
amendments to translate "all written material necessary to
ensure that he [the suspect] is able to understand the case against
him and exercise his rights...". Regarding legal advice,
the Government believes that the degree to which full translations
are required to safeguard a suspect's rights will depend upon
the circumstances in each case.
- The draft amendments also propose that the suspect
must be given an indexed and fully referenced summary of the prosecution
evidence in translation. The Government's view initial view is
that this draft amendment would create a right to information
itself, rather than interpretation and translation as provided
for by this Directive.
- Oral translation or summary.
The draft amendments propose restricting to a much greater extent
the circumstances in which an oral translation or summary of documents
can be given instead of a written translation. The Government
agrees that oral translation should not be used if it prejudices
the fairness of the proceedings. However, it will be exploring
whether there is any alternative solution that could be used here
to meet this objective.
- Waiver. The Rapporteur
also suggests that a waiver of the right to translation should
only be valid if the suspect has received legal advice, the waiver
is unequivocal, it is given in writing in the presence of his
lawyer and it does not run counter to any important public interest.
The Government believes that Article 3(7) of the draft Directive
is adequate. The Article sits within the context of the right
to translation, a right of review and a right to interpretation
in court with the additional safeguards that come with judicial
oversight. The Government's initial view of the draft amendment
is that it may be unnecessarily restrictive. However, the Government
understands the Rapporteur's intention to provide additional safeguards,
and it will consider alternative language on this point.
- Appeal/review in relation to a decision that
interpretation or translation is not needed.
The draft amendments propose referring to a "right of appeal
to a judicial authority" rather than a right to a "review"
in Articles 2 and 3. The Government agrees that there should be
an effective means within the overall process of challenging a
decision not to provide interpretation or translation. However,
the term "review" achieves this aim, and allows for
a review in court as part of an appeal but also, at the investigation
stage, for a decision by a police officer to be reconsidered by
a more senior officer.
- Physical and mental impairments.
The draft amendments refer to "physical and mental impairments"
which "affect the suspect's ability to communicate effectively".
However, the amendment potentially covers a wide range of conditions,
e.g. autism, dementia, Down's Syndrome and speech impediments.
Many of these require other forms of assistance than foreign language
or sign language interpretation as required by this Directive.
The Government's current view is that it would be more appropriate
to consider the needs of those with mental or physical impairments
under Measure E of the Roadmap which will deal with special safeguards
for vulnerable defendants.
- Training, Quality and Accreditation.
The draft report proposes including new provisions on training
of those involved in criminal justice, and the training, qualification,
accreditation and registration of interpreters and translators.
The draft report also suggests that interpretation and translation
should be of a "high quality" rather than of an "adequate
quality". The Government welcomes in principle the idea of
including training for those involved in criminal justice in this
Directive, although it is still considering the current amendment,
particularly given that the judiciary and defence lawyers are
independent of Government in the UK. It also agrees that it is
important to have the right quality of interpretation and translation.
However, its initial view about this draft amendment is that the
definition of "adequate quality" is sufficient to ensure
that the proceedings are fair. It also believes that the Rapporteur's
proposed new provision on training, qualification, accreditation
and registration of interpreters and translators may extend obligations
too far, and the practical implications of this provision need
further consideration.
- Use of Technology.
The Rapporteur also proposes a new provision stating that technology
such as video links, telephone or internet access can be used
to provide interpretation only "as a last resort when the
personal attendance of an interpreter is impossible ...".
The draft amendments also suggest it should not be used for proceedings
in court. The Government believes it is disproportionate to restrict
the use of technology to this extent. The aim is to ensure the
defendant receives a fair trial; use of technology is acceptable
providing the trial is fair. In some remote areas, for example,
it may be in the defendant's interests to use technology to avoid
delay or find an interpreter of the right quality. Courts can
be expected to decide whether use of technology in a particular
case is or is not against the interests of justice and the fair
trial rights of the suspect.
- Another amendment creates an obligation to record
suspect interviews, oral translations and summaries or waivers
under Article 3(7). The Government is generally in favour of recording
suspect interviews and supports exchanging best practice on this.
However, this Directive deals with interpretation and translation,
rather than other rights. It also believes that the obligations
in this amendment may be disproportionate, for example to provide
both "an audio and a video recording". There may also
be some circumstances where for good reason written records are
equally sufficient.
The Committee's view
2.4 In general, the Committee welcomes any amendments
which shore up the rights contained in the proposal, but, like
the Government, would wish to see that over-prescription is avoided.
So we welcome an amendment which clarifies that the standards
in this proposal correspond to the rights guaranteed by the ECHR.
But we are of the opinion that too many references to the Charter
are neither necessary nor helpful. We consider that the proposal
as drafted covers interpretation and translation requirements
in pre-trial detention adequately. We welcome an amendment which
reinforces the fact that the suspect and his/her lawyer must be
able to understand each other at all times. We agree with the
Government that what amounts to an essential document can be determined
by a police officer or judge, in cases of doubt; to incorporate
a definitive list would be to over-legislate. Whether oral translation
can be used should also be left to the discretion of competent
officials. We agree with the Government that the provisions on
waiver of the requirement for interpretation or translation is
perfectly adequate. However, we do see force in stating that the
quality of interpretation and translation services should be "high"
rather than "adequate". We agree that a "review",
rather than an "appeal", of a decision on whether to
allow interpretation and translation services better covers the
different types of decisions that will be taken at Member State
level. We do not think that a reference needs to be made to people
with physical or mental impairments, for the reasons outlined
by the Government; nor do we think it is right that the proposal
prescribes when video and audio technology can or cannot be used.
Conclusion
2.5 We thank the Minister for his helpful
letter. It is a good example of how the Committee should be kept
informed of significant developments in negotiations with the
European Parliament under the ordinary legislative procedure.
2.6 Our comments on the European Parliament's
draft amendments are set out above. Overall, we agree with the
Government that many of the Rapporteur's, Baroness Ludford's,
proposals run the risk of stifling the exercise of discretion
in the criminal justice process. This is to be avoided. However,
where the European Parliament seeks to clarify or reinforce a
principle or right, we support it. But we are of the opinion that
too many references to the Charter of Fundamental Rights are neither
necessary nor helpful.
2.7 We would be grateful for a final update
when a clearer picture of the final text emerges, and the fate
of the Commission's alternative proposal is known. Until then
we keep the proposal under scrutiny.
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