Documents considered by the Committee on 30 March 2010 - European Scrutiny Committee Contents

2   Interpretation and translation rights in criminal proceedings



+ ADDs 1-3

Draft Directive on the rights to interpretation and translation in criminal proceedings

Legal baseArticle 82(2)(b) TFEU; QMV; co-decision
Basis of considerationMinister's letter of 22 March 2009
Previous Committee ReportHC 5-vii (2009-10), chapter 7 (20 January 2010)
To be discussed in CouncilNo date set
Committee's assessmentLegally important
Committee's decisionNot cleared; further information requested

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.


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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