Memorandum submitted by the Law Society
of England and Wales
1. The Law Society of England and Wales
(the Society) is the representative body of over 135,000 solicitors
in England and Wales. The Society negotiates on behalf of the
profession and makes representation towards regulators and government
in both the domestic and European arena. The Society welcomes
this opportunity to respond to the House of Commons Justice Committee
call for evidence on Justice Issues in Europe dated 13 May 2009
and set out its position on key areas in which European cooperation
on justice issues could add value to the experiences and rights
of the individual. The Society does this in light of the European
Commission Communication on "An area of freedom, security
and justice serving the citizen" dated 10 June[30]
and the Presidency Roadmap on procedural rights dated 1 July[31]
and European cooperation to date.
2. This position comprises an Executive Summary
followed by a detailed analysis.
EXECUTIVE SUMMARY
3. The Society highlights the importance
of the EU introducing binding minimum procedural rights in criminal
matters throughout the EU for suspects and defendants at all stages
of the criminal process from investigation, including for example
the right to:
(c) access to all relevant information held by
the investigatory and prosecuting agencies to enable the suspect
and defence to prepare from pre-charge onwards;
(d) silence and not to incriminate oneself;
(e) interpretation and translation;
(f) audio recording of interviews;
(g) the maintenance of a written custody record
accessible to the suspect and defendant;
(h) be present at all hearings in person;
(i) consular assistance and the right to communicate
to a family member, employers and consular authorities the fact
of being in detention;
(j) be notified of information on rights, the
charge, and the procedure at the police station, during detention,
and beyond orally, and in writing in the suspect's own language;
(k) proper protection of vulnerable suspects
and defendants, for example children and mentally ill people;
and
(l) minimum standards for detention conditions
and minimum rights in respect of grounds, review and length of
pre-trial detention. The Society also emphasises the importance
of mutual recognition of reporting, residence and curfew conditions.
Moreover:
(m) the EU must ensure that the minimum procedural
rights never lead to a level of protection lower than that guaranteed
by the European Convention of Human Rights, which as a living
instrument, will continue to be interpreted;
(n) provision must be made in the legislation
for evaluation and monitoring of compliance mechanisms, taking
into account, among other things, the findings and activities
of the European Court of Human Rights and the Council of Europe;
(o) the Council should make a commitment in its
roadmap on procedural rights to adopt legislation for each of
the above rights in a specific time frame in the 2010 to 2014
period. The Stockholm Programme and Action Plan should also include
such a commitment; and
(p) in the meantime, European Institutions must
hold Member States accountable for human rights violations and
ensure that situations incompatible with human rights are remedied
swiftly and effectively.
3.2 Ensuring that the European e-Justice
project respects fundamental rights, including for example, by
ensuring that:
(a) it does not encroach on the entitlement to
be present at all hearings in person;
(b) the right to interpretation and translation
is not watered down by the European e-Justice project;
(c) automated translations and standardised forms
with predetermined text and terminology should not be relied on
in criminal matters. Criminal records must be translated with
a full explanation of the meaning of sentences, and the court
process, whether summary, intermediate or appeal;
(d) the right to privacy is respected in full;
and
(e) information on means of redress is available.
3.3 Providing EU funding for networking
and training for all legal professionals in the criminal justice
field, not just judges and prosecutors, and providing information
and education to ensure that all people understand their rights.
3.4 Addressing fundamental deficiencies
in current legislation:
(a) focusing not only on implementation but also
reflecting on the fundamental reasons for lack of accurate implementation;
(b) introducing a proportionality test in the
European Arrest Warrant as a matter of urgency; and
(c) implementing the European Evidence Warrant
to respect fundamental rights including Article 8 (Right to respect
for private and family life) and the need for an effective remedy
including in the executing state (Article 13 (Right to an effective
remedy) of the European Convention on Human Rights)) and providing
for defence access.
3.5 Ensuring public consultation and impact
assessments on all proposals, including Member State initiatives.
3.6 Consolidating mutual recognition instruments,
reducing the differences between them and making it easier for
everyone to understand and apply them.
3.7 Not pursuing closer alignment of substantive
law including common definitions and penalties as it is not necessary
to enhance mutual trust and mutual recognition. Moreover, differences
including in terms of sentencing practices between different countries
are dependant upon a huge variety of factors including cultural
and social economic conditions within these countries and the
principle of subsidiarity must be respected.
3.8 Ensuring that procedural safeguards
are respected including in police cooperation.
3.9 Conducting an evaluation of the European
Criminal Records and Information Exchange System, not only in
terms of how the exchange of information operates but also in
terms of how the information exchanged is used.
3.10 Providing implementation assistance
for Member States on the transfer of convictions legislation and
indeed on all EU legislation to ensure, among other things, that
safeguards are respected.
3.11 Adopting a balanced approach to mutual
recognition, including in relation to victims, to also ensure
that defendant's rights are respected.
3.12 Ensuring that victims of trafficking
are treated as such and are not victimised twice over.
DETAILED ANALYSIS
4. Background
4.1 It has been 10 years since Member States
agreed that their police and judges should work together to fight
crime and in parallel that individual rights should be protected.
During this time they have forged ahead with co-operation in the
law enforcement area but have failed to take sufficient action
to protect individual rights. As a result holiday makers and others
could find themselves alone in a foreign country without any assistance
and unable to understand or follow an investigation against them.
4.2 As the European Institutions set out their
vision for the type of area of "freedom, security and justice"
that would bring real benefit to the citizens of Europe in 2010
to 2014,[32]
the Society calls on them to ensure that it is an area in which
fundamental rights are respected.
5. Binding minimum procedural rights
5.1 The Commission Communication acknowledges
that there are differences in the level of protection in criminal
proceedings (page 3). It asserts that the European judicial area
must allow citizens to assert their rights anywhere in the EU
by facilitating access to justice (page 10). It asserts that the
EU must have a legal framework on minimum procedural guarantees
(page 32) to uphold individual's rights and maintain mutual trust
and confidence in the EU (page 18). It refers to the then upcoming
Council action plan (roadmap) in this area on common minimum guarantees
and refers to extending it, for example to pre-trial detention,
but it does not set out a list of rights that should be addressed
(page 17).
5.2 The Society highlights the importance of
the EU introducing binding minimum procedural rights in criminal
matters throughout the EU. Minimum procedural rights must provide
effective, accessible and timely means of redress for individuals
at national level and not just EU level. They must apply to both
cross-border and domestic cases to avoid dual standards and enhance
mutual trust in each others' legal systems. Such minimum procedural
rights should not be based on the lowest common denominator, which
would risk watering down protection already afforded, for example,
by the European Convention on Human Rights protections which Member
States must already uphold. The EU must ensure that the minimum
procedural rights never lead to a level of protection lower than
that guaranteed by the European Convention of Human Rights, which
as a living instrument, will continue to be interpreted. Provision
must also be made in the legislation for evaluation and monitoring
of compliance mechanisms, taking into account, among other things,
the findings and activities of the European Court of Human Rights
and the Council of Europe.
5.3 The EU Institutions and Member States
must continue to ensure the observance of human rights within
the Union and that situations incompatible with such rights are
remedied swiftly and effectively.
5.4 The Society highlights the importance
of introducing binding minimum procedural rights for suspects
and defendants at all stages in the criminal process from investigation,
including the right to:
(a) legal advice and legal representation,[33]
with legal aid for those who cannot afford it;
(b) consult the lawyer in private and to receive
legal advice in the strictest confidence ("legal professional
privilege"). The Society is concerned by recent moves to
undermine the basic principle of legal professional privilege;[34]
(c) access to all relevant information held by
the investigatory and prosecuting agencies to enable the suspect
and defence to prepare from pre-charge onwards;
(d) silence and not to incriminate oneself;
(e) interpretation and translation;
(f) audio recording of interviews;
(g) the maintenance of a written custody record
accessible to the suspect and defendant to focus the minds of
custodians and to reduce inadvertent law breaking and cases within
cases;
(h) be present at all hearings in person. To
the extent that the defendant unequivocally expressly waives this
entitlement of his own free will and the circumstances are such
that it would not be contrary to the notion of a fair trial or
other rights for the court to hold the hearing in the specific
case by video-conference,[35]
it must be ensured that the defendant is able to follow the proceedings
and to be heard without technical impediments, and effective and
confidential communication with a lawyer must be provided for;
(i) proper protection of vulnerable suspects
and defendants, for example, children and mentally ill people;
(j) consular assistance and the right to communicate
to a family member, employers and consular authorities the fact
of being in detention;
(k) be notified in their own language in writing
of their rights in a "Letter of Rights" and in writing
and orally of what they are accused of;
(l) be notified in their own language in writing
of the procedure at the police station, during detention, and
beyond;
(m) be notified in their own language by video
of their rights and the procedure at the police station, during
detention, and beyond. Not all people are able to read and when
asked may not admit this. A video would be a simple measure to
address this concern. Moreover, a video on procedure at the police
station, during detention, and beyond, a procedural roadmap, should
enable suspects and defendants to understand in basic terms what
will happen to them, from questioning to detention conditions
and beyond; and
(n) minimum standards for detention conditions
and minimum rights in relation to grounds, review and length of
pre-trial detention. The Society also emphasises the importance
of mutual recognition of reporting, residence and curfew conditions.
5.5 The Society also emphasises that the
Council should make a commitment in its roadmap on procedural
rights to adopt legislation for each of the above rights in a
specific time frame in the 2010 to 2014 period. The Stockholm
Programme and Action Plan should also include such a commitment.
6. European e-Justice
6.1 As the European Institutions prepare
for the launch of the European e-Justice portal in December 2009
and continue their work on the European e-Justice project[36]
the Society calls for ensuring that the European e-Justice portal
and project respects fundamental rights, including for example,
by ensuring:
(a) that a person charged with a criminal offence
should, as a general principle based on the notion of a fair trial
and other rights, be entitled to be present at his hearing. It
is concerning that the Commission Communication asserts that better
use should be made of videoconferences for example to spare the
victims the effort of needless travel without having any regard
to this (page 13). The Commission also asserts that a European
order for bringing persons to court that takes account of the
opportunities offered by videoconferences should be explored (page
17). The Society emphasises that it is also necessary to consider
the drawbacks, not least in terms of fundamental rights;
(b) that the right to interpretation and translation
is not watered down by European e-Justice. The Commission Communication
calls for improving the quality of and the pooling of legal interpretation
and translation resources or the possible use of remote interpreting
by videoconference (page 13). The Society acknowledges that there
are fundamental issues concerning the availability and quality
of translation and interpretation facilities in the field of criminal
justice, which the European e-Justice programme attempts to tackle.
The Society emphasises that such considerations must not weaken
the proposals on procedural safeguards and access to justice;
(c) automated translations are not relied on
in criminal matters. It is very concerning that the Commission
cites machine translations as a means to overcome language barriers
(page 13). The Society emphasises, for example, that criminal
records must be translated with a full explanation of the meaning
of sentences, and the court process, whether summary, intermediate
or appeal. The Society equally cautions against the use of standardised
dynamic forms with predetermined text and terminology. This is
particularly pertinent not least in the context of the interconnection
of criminal records. The Society has serious concerns about various
issues arising from the interconnection of criminal records. These
include the accuracy, access, use and understanding of the information
stored and as to how any errors or misunderstandings can be rectified.
The Society has serious concerns regarding the ways information
gathered for one purpose can be used for another purpose, arising
from the principle of availability and moves towards interoperability
of databases;
(d) the right to privacy is respected in full.
European e-Justice must not develop in a data protection vacuum
nor be governed by a patchwork of different national data protection
rules, as this is an area in which fundamental rights are at stake.
Even the European Data Protection Supervisor has observed that
the level of data protection achieved in the new Framework Decision
on data protection in police and judicial cooperation in criminal
matters[37]
is not fully satisfactory. This is particularly pertinent not
least in the context of the European e-Justice project;[38]
and
(e) that information is included on what to do
if something goes wrong, legally, technically or otherwise, with
the European e-Justice portal or linked web-sites, including who
to contact and means of redress. It will be important to consider
how this will be addressed on the European e-Justice portal and
linked web-sites.
7. Networking, training and education
7.1 The Commission acknowledges that the
enforcement of instruments needs to be better supported in the
professional sphere. Among other things, it calls for the EU's
support for networks of professionals to be strengthened, coordinated
and better structured. It also calls for systematic training for
all legal professionals and developing e-Learning programmes (page
11). However, it is by no means clear that it envisages its assistance
to extend beyond the judiciary and prosecution.
7.2 The Society emphasises the importance of
EU funding for networking and training for all legal professionals
in the criminal justice field, not just judges and prosecutors.
The Society also calls for information provision and education
to ensure that all people understand their rights.
8. Addressing fundamental deficiencies in
current legislation
8.1 The Commission acknowledges that there
has to be evaluation of the effectiveness of the legal and political
instruments adopted at Community level (page 11).
8.2 The Society welcomes a period of stocktaking,
not only in terms of focusing on implementation of EU instruments
but also to consider and reflect on the fundamental reasons for
lack of accurate implementation of EU instruments.
9. Lack of proportionality
9.1 For example, in relation to the European
Arrest Warrant,[39]
the Society highlights that the absence of a proportionality test
discredits mutual trust. It is striking in this regard that to
date this fundamental issue has been considered in a non-binding
European handbook on how to issue a European Arrest Warrant[40]
published by the Presidency on 18 June instead of being addressed
in legislation.
9.2 On 4 to 5 June 2009 the Justice and Home
Affairs Council adopted[41]
a report[42]
on mutual evaluations concerning the practical application of
the European Arrest Warrant. The report acknowledges that the
way in which proportionality is dealt with in the Member States
varies greatly. It asserts that some Member States apply a proportionality
test in every case, often unevenly concerning the circumstances
to be taken into consideration and the criteria to be applied,
whereas others consider it superfluous. The Society observes that
some consider the principle of legality an obstacle to considerations
of proportionality. The report recommends that the Council instructs
its preparatory bodies to continue discussing the issue of the
institution of a proportionality requirement for the issuance
of any European Arrest Warrant with a view to reaching a coherent
solution at EU level as a matter of priority.
9.3 The Society calls on the EU to introduce
a proportionality test as a matter of urgency. It is wholly unsatisfactory
that it was not addressed in the original legislation, which continues
despite this fundamental shortcoming.
10. Effective remedy
10.1 The Society observes that under the
European Evidence Warrant[43]
the issuing authority must be satisfied that obtaining the objects,
documents or data sought is necessary and proportionate for the
purposes of proceedings for which an European Evidence Warrant
may be issued (Article 7(a) and Article 5).
10.2 The Society emphasises that the issuing
state must provide an explanation of how the European Evidence
Warrant is necessary and proportionate in order to satisfy the
executing state that that is the case. Otherwise the executing
state will be unable to comply with its obligations under Article
8 of the European Convention on Human Rights (Right to respect
for private and family life) and the need for an effective remedy
including in the executing state (Article 13 (Right to an effective
remedy)).
10.3 Moreover, it will be essential to ensure
that necessity and proportionality is applied in practice, so
that the European Arrest Warrant experience is not repeated.
11. Lack of defence access
11.1 The Commission calls for a complete
European framework for taking evidence (page 32). It calls for
a real European evidence warrant to replace all existing instruments.
It asserts that it would be automatically recognised and applicable
throughout the Union and limit as far as possible the grounds
for rejection.
11.2 The Society believes that the EU should
instead focus on adopting balanced legislation in which equality
of arms is respected. The Society emphasises that suspects and
defendants must also be able to apply for a European Evidence
Warrant. The Society is concerned that this is not made explicit
in the current legislation and calls on Member States to implement
it to respect equality of arms.
11.3 The Society calls on the Commission
to clarify exactly what is meant by a "real European evidence
warrant." The Society would be concerned by moves to expand
the scope of the current European Evidence Warrant and to further
remove safeguards without time to see how the framework decision
is implemented and how it works in practice.
11.4 The Commission also asserts that a
European legal framework on electronic evidence should be explored
and that minimum principles to facilitate the mutual admissibility
of evidence between countries, including scientific evidence should
be explored (page 17). The Society looks forward to playing an
active role in the consultation on evidence further to the EU
funded project on safeguarding expert evidence in which it participated.[44]
12. Public consultation and impact assessment
12.1 The Commission asserts that priority
should be given to improving the quality of European legislation.
It asserts that from the time when proposals are first sketched
out, thought must be given to the potential impact on citizens
and their fundamental rights (page 6).
12.2 The Society calls for public consultation
and impact assessment on all proposals, including Member State
initiatives. The Society observes in this regard the lack of public
consultation and impact assessment on the 20 January 2009 proposal
for a Council Framework Decision on prevention and settlement
of conflicts of jurisdiction in criminal proceedings published
at the initiative of the Czech Republic, Poland, Slovenia, the
Slovak Republic and Sweden.[45]
12.3 In its position on the proposal dated
26 February 2009[46]
the Society emphasised that it is essential that procedural safeguards
are in place to protect the rights of the suspect or defendant
at all stages of the choice of criminal jurisdiction process.
The proposal fails to address this central issue.
13. Consolidation of existing measures
13.1 The Commission asserts that the substantial
progress in the justice field in past years needs to be consolidated
(page 10).
13.2 The Society observes that mutual recognition
instruments reduce both the grounds for refusal and the time to
execute requests. The Society calls for consolidation of mutual
recognition instruments, reducing the differences between them
and making it easier for everyone to understand and apply them.
14. Harmonisation of substantive law not
necessary
14.1 The Commission asserts that the principle
of mutual recognition is the cornerstone of European integration
in the field of justice (page 10). However, it also asserts that
the development of the European judicial area requires a certain
level of alignment of Member States' laws and regulations. It
calls for closer alignment of substantive law in relation to serious
crimes, generally of a cross-border nature, which require common
definitions and penalties. It asserts that such alignment will
help to extend mutual recognition and, in some cases almost completely
abolish the grounds for refusal to recognise other Member States'
judgments (page 12).
14.2 The Society is opposed to pursuing harmonisation
of definitions and penalties. The Society is concerned by attempts
to do so under the guise of a mutual recognition agenda. Mutual
recognition must not be used as a means by which to introduce
the harmonisation of substantive law through the back door in
this respect. Closer alignment of substantive law in this respect
is not necessary to enhance mutual trust and mutual recognition.
Moreover, differences including in terms of sentencing practices
between different countries are dependant on a huge variety of
factors including the cultural and social economic conditions
within these countries and the principle of subsidiarity must
be respected.
14.3 The Commission also asserts that thought
should be given to a Community programme to finance pilot schemes
in the Member States testing alternatives to imprisonment (page
18). The Society welcomes funding in this important area but notes
that again this is an area in which the principle of subsidiarity
must be respected.
15. Police cooperation
15.1 The Commission calls for pilot action
against organised crime involving systematic exchange of information,
widespread use of European investigative tools and where necessary
the development of common investigative and prevention techniques
(page 20). It cites operational effectiveness as a key criterion
in preventing criminals from exploiting the frontier-free area
to evade investigation and prosecution (page 17).
15.2 The Society emphasises that operational
effectiveness is not the only criterion. Procedural safeguards
are essential and must be respected.[47]
16. Otherwise extending mutual recognition
16.1 The Commission asserts that in criminal
matters, the principle of mutual recognition must apply at all
stages of the procedure. It must extend to other types of judgment,
which may be criminal or administrative depending on the Member
State. For example, special protection measures for witnesses
or victims of crime; implementing certain fines between countries
including to improve road safety; and the mutual recognition of
judgments imposing some kind of disqualification and encouraging
the systematic exchange of information between Member States to
this end (page 10 to 11). The Commission also calls for further
work on the European Criminal Records Information System (ECRIS)
including an evaluation of how the exchange of information operates.
It asserts that the networking of criminal records should make
it possible to prevent offences being committed (eg checks on
access to certain jobs, particularly those relating to children).
It asserts that ECRIS will also have to be expanded to cover nationals
of non-EU countries who have been sentenced in the EU (page 17).
16.2 The Society welcomes an evaluation of ECRIS,
not only in terms of how the exchange of information operates
but also in terms of how the information exchanged is used. The
Society also calls for implementation assistance to be given to
Member States on the transfer of convictions legislation[48]
and indeed on all EU legislation to ensure, among other things,
that safeguards are respected. Not least to ensure that the implementing
legislation does not enable previous convictions to be taken into
account in circumstances where a national conviction would not
have been possible for the act for which the previous conviction
had been imposed.
16.3 The Society can see the merits in a
sentencing judge in one Member State having information on previous
convictions for recidivism purposes. However, the Society is concerned
that the use of the information may be prejudicial in determining
guilt if there is no context provided in terms of the conviction
and sentence imposed. There is a need to be able to understand
what a criminal offence from a different Member State means, the
relevance of a conviction and the level and significance of a
sentence, bearing in mind the very different sentencing regimes
in different EU Member States, so that a judge can decide if it
is appropriate and proportionate to take it into consideration.
It is too crude to automatically impose a higher penalty for a
repeat offence. Further consideration should also be given to
the rehabilitation of offenders and where a conviction is spent.
16.4 The Society also emphasises the need
for effective data protection. An efficient and robust procedure
for challenging inaccuracies must also be established and the
criminal record should be translated with a full explanation of
the meaning, and the court process, whether summary, intermediate,
or appeal.
16.5 The Society welcomes the extension
of ECRIS to nationals of non-EU countries sentenced in the EU.
The Society emphasises the importance of equal treatment of nationals
and non-nationals in this regard.
16.6 The Society calls for a balanced approach
to mutual recognition, including in relation to victims, in order
to also respect defendant's rights. It will be important to resist
any attempts, albeit not explicitly referred to, to introduce
a system of victims' rights in which prosecutorial discretion
to discontinue a case or downgrade a criminal charge would be
subject to the victim's input or consent or that of the victim's
advisor; or to introduce protective measures to afford witness
anonymity that do not adequately protect the right of a defendant
to challenge their evidence. The Society would be concerned if
it is proposed that witness anonymity be used other than in wholly
exceptional cases subject to safeguards. It is also important
to have regard to the different nature of the Common Law adversarial
system and the Civil Law inquisitorial system.
17. Trafficking
17.1 The Commission asserts that human trafficking
victims must be protected and helped by various measures including
for example immunity from criminal prosecution and regularisation
of their stay.
17.2 The Society welcomes this so that victims
of trafficking are treated as such and are not victimised twice
over, once by the trafficking and once by action taken against
them in respect of their illegal entry or stay.
July 2009
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0262:FIN:EN:PDF
In Panovits v Cyprus (application no 4268/04)
Chamber Judgment 11 December 2008 the European Court of Human
Rights observed that the lack of legal assistance during an applicant's
interrogation would constitute a restriction of his defence rights
in the absence of compelling reasons that do not prejudice the
overall fairness of the proceedings (paragraph 66).
http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=4268/04&sessionid=21465389&skin=hudoc-en.
The Report to the Portuguese Government on the visit
to Portugal carried out by the Council of Europe European Committee
for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment (CPT) from 14 to 25 January 2008, Strasbourg, 19
March 2009 at http://www.cpt.coe.int/documents/prt/2009-13-inf-eng.pdf
emphasises that the right of access to a lawyer must include the
possibility to meet with the lawyer in private and to have a lawyer
present during any interrogation.
http://international.lawsociety.org.uk/node/6234
http://international.lawsociety.org.uk/files/LSEW%20response%20to%20Commission%20consultation%204%20December.pdf,
which explains that the Society is strongly opposed to replacing
procedural safeguards with "more flexible" "simplified
formalities" or such like set out in the Future Group on
Home Affairs report titled Freedom, Security, Privacy—European
Home Affairs in an open world.
30 COM (2009) 262 final, 10.06.2009 at Back
31
Presidency Roadmap with a view to fostering protection of suspected
and accused persons in criminal proceedings dated 1 July
2009 11457/09. Back
32
Commission Communication: An area of freedom, security and justice
serving the citizen, COM (2009) 262 final, 10.06.2009 at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0262:FIN:EN:PDF
and Law Society of England and Wales Response to Freedom, Security
and Justice: What will be the future? European Commission consultation
on priorities for the next five years (2010-14) December 2008
at http://international.lawsociety.org.uk/files/LSEW%20 response%20to%20Commission%20consultation%204%20December.pdf Back
33
In Salduz v Turkey (application no 36391/02) Grand Chamber
Judgment 27 November 2008, the European Court of Human Rights
found that in order for the right to a fair trial to remain sufficiently
"practical and effective" access to a lawyer should
be provided as from the first interrogation of a suspect by the
police (paragraph 55). http://cmiskp.echr.coe.int/tkp197/view.asp?item=2&portal=hbkm&action=html&highlight=36391/02&sessionid=21465389&skin=hudoc-en. Back
34
For example the House of Lords recently decided that covert surveillance
of communications between lawyers and their clients, covered by
legal professional privilege, was permitted under the Regulation
of Investigatory Powers Act 2000, notwithstanding any statutory
rights of persons in custody to consult their lawyers in private.
Re McE (Northern Ireland) [2009] UKHL 15 at http://www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd090311/mce-1.htm Back
35
The Society draws attention for example to the Council of Europe
European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (CPT) report to the UK Government
published on 1 October 2008 at http://www.cpt.coe.int/documents/gbr/2008-27-inf-eng.pdf.
In relation to extensions of pre-charge detention by video-link
it emphasises that the physical presence of a detainee should
be seen as an obligation, not as an option open to the judicial
authority. It emphasises that from the point of view of making
an accurate assessment of the physical and psychological state
of a detainee, nothing can replace bringing the person concerned
into the direct physical presence of a judge. Further, it explains
that it will be more difficult to conduct a hearing in such a
way that a person who may have been the victim of ill-treatment
feels free to disclose this fact if the contact between the judge
and the detained person is via a video-conferencing link. Back
36
Council Multi-Annual European e-Justice Action Plan 2009-13,
Official Journal of the European Union C 75/1, 31.03.2009 at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2009:075:0001:0012:EN:PDF Back
37
Council Framework Decision 2008/977/JHA of 27 November 2008
on the protection of personal data processed in the framework
of police and judicial cooperation in criminal matters, Official
Journal of the European Union L350/60, 30.12.2008 at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:350:0060:0071:EN:PDF Back
38
European Data Protection Supervisor in his Opinion dated
19 December 2008 on the European Commission Communication Towards
a European e-Justice Strategy, Official Journal of the European
Union C128/13, 6.6.2009 at http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/Consultation/Opinions/2008/08-12-19_eJustice_EN.pdf Back
39
Council Framework Decision of 13 June 2002 on the European arrest
warrant and the surrender procedures between Member States, Official
Journal of the European Union L190/1, 18.7.2002 at http://eur-lex.europa.eu/pri/en/oj/dat/2002/l_190/l_19020020718en00010018.pdf Back
40
http://register.consilium.europa.eu/pdf/en/08/st08/st08216-re02.en08.pdf Back
41
http://www.consilium.europa.eu/App/NewsRoom/loadDocument.aspx?id=352&lang=EN&directory=en/jha/&fileName
=108356.pdf Back
42
http://register.consilium.europa.eu/pdf/en/09/st08/st08302-re04.en09.pdf Back
43
Council Framework Decision 2008/978/JHA of 18 December 2008 on
the European evidence warrant for the purpose of obtaining objects,
documents and data for use in proceedings in criminal matters,
Official Journal of the European Union L350/72, 30.12.2008 at
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:350:0072:0092:EN:PDF Back
44
See report on safeguarding expert evidence in the European Union
published 11 June Back
45
http://register.consilium.europa.eu/pdf/en/09/st05/st05208.en09.pdf Back
46
http://international.lawsociety.org.uk/node/5795 Back
47
The Society notes in this regard page 10 of its response to Freedom,
Security and Justice: What will be the future? European Commission
Consultation on priorities for the next five years (2010-14) December
2008 at Back
48
Framework Decision 2008/675/JHA on taking account of convictions
in the Member States of the European Union in the course of new
criminal proceedings, Official Journal of the European Union L220/32,
15.8.2008 at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:220:0032:0034:EN:PDF Back
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