Documents considered by the Committee on 15 September 2010 - European Scrutiny Committee Contents

15   Right to information in criminal proceedings



COM(2010) 392

+ ADD 1

+ ADD 2

Draft Directive on the right to information in criminal proceedings

Commission staff working document: Impact Assessment accompanying the Proposal for a Directive of the European Parliament and of the Council on the right to information in criminal proceedings

Commission staff working document: Summary of the Impact Assessment accompanying the Proposal for a Directive of the European Parliament and of the Council on the right to information in criminal proceedings

Legal baseArticle 82(2) TFEU; co-decision; QMV
Document originated20 July 2010
Deposited in Parliament28 July 2010
Basis of considerationEM of 27 July
Previous Committee ReportNone
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested


15.1  This proposal is the second step of the procedural rights Roadmap, which was adopted by the Council in November 2009[67] and subsequently included in the Stockholm Programme. The Roadmap gave a mandate to the EU to bring forward legislative and non-legislative measures to safeguard procedural rights in criminal proceedings.

15.2  This proposal aims to set common minimum standards regarding the right to information in criminal proceedings throughout the EU. The aim is to improve the rights of suspects and accused persons by ensuring that they receive information about their rights in the criminal process; it is also to ensure that they receive information about the nature of the accusation against them to enable them to prepare a defence.

15.3  The Commission's explanatory memorandum[68] states that the Commission has examined a number of studies that show that the way suspects are informed of their rights varies widely in the EU, and that in the majority of cases information on rights is only provided orally rather than in writing. However, the Commission also reports that 11 Member States already use some form of a Letter of Rights to inform suspects and accused persons of their rights. The Commission's impact assessment provides two examples of letters of rights that are currently used by Member States, one of which is the 'Notice of Rights and Entitlements' used in England and Wales.

The document

15.4  Article 1 sets out the objective of the Directive as laying down rules concerning the rights of suspected and accused persons to information about their rights and information about the charge in criminal proceedings against them.

15.5   Article 2 — scope — provides that the Directive applies from the time that a person is made aware by the competent authorities of a Member State, by official notification or otherwise, that he is suspected or accused of having committed a criminal offence until the conclusion of the proceedings (including any appeal). European Arrest Warrant proceedings are explicitly covered.

15.6  Article 3 — the right to information about rights — lays down the general principle that all suspected and accused persons in criminal proceedings should be informed about relevant procedural rights at the earliest possible moment in the proceedings. Such information should be given in simple and accessible language, orally or in writing. Paragraph 2 of this Article sets out the minimum rights to be included:

  • the right of access to a lawyer, where necessary free of charge,
  • the right to be informed of the charge and, where appropriate, to be given access to the case-file,
  • the right to interpretation and translation,
  • the right to be brought promptly before a court if the suspected or accused person is arrested.

15.7  Article 4 — the right to written information about rights on arrest —obliges Member States to inform a person arrested in the course of criminal proceedings about his rights, as listed above as a minimum, in writing. This document is called the Letter of Rights. Police forces are required to ensure that the arrested person has a broad understanding of the information contained in the Letter of Rights; the arrested person must be allowed to keep the Letter of Rights throughout the time of his detention; the Letter of Rights should be drafted in language which the arrested person understands. Annex I to the Directive contains a model of the Letter of Rights (for indicative purposes).

15.8  Article 5 — the right to written information about rights in European Arrest Warrant proceedings — requires Member States to ensure that a specific version of the Letter of Rights exists for persons subject to those proceedings. Annex II to the Directive contains a model of the Letter of Rights.

15.9  Article 6 — the right to information about the charge — provides that, once a person has been charged with a criminal offence, he should be given sufficient information promptly, in detail and in a language he understands, to enable him to prepare his defence, and to challenge pre-trial decisions if necessary. The following information should be given as a minimum:

  • a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the suspected or accused person and
  • the nature and legal classification of the offence.

15.10  Article 7 — the right to access to the case-file — requires Member States to disclose "those documents contained in the case file which are relevant for the determination of the lawfulness of the arrest and detention" to the defendant or his lawyer in sufficient time to enable a challenge to pre-trial detention and to prepare the trial. Under paragraph (2) Member States are required to ensure that the defendant or his lawyer have access to the complete case file once the investigation of the criminal offence is concluded. Access to documents in the case file under paragraph (2) may be refused if it may lead "to serious risk to the life of another person or may seriously harm the internal security of the Member State in which the proceedings take place".

15.11  The remaining Articles deal with national procedures to be put in place to ascertain whether a suspect has received the Letter of Rights, training of relevant personnel, a non-regression clause and implementation.

The Government's view

15.12  The Secretary of State submitted a brief Explanatory Memorandum on this document on 27 July.

15.13  Having rehearsed the arguments of the Commission, the Minister says that the Government agrees that the objectives of this measure cannot be sufficiently achieved by Member States acting on their own and so is better achieved at Union level. The Government also agrees that minimum defence rights can facilitate judicial co-operation and mutual recognition by building trust and confidence between Member States. It also believes that this will help to protect the rights of those suspected of committing criminal acts, particularly given the wide use of the right to free movement in the EU.

15.14  The general principle of safeguarding criminal procedural rights is one which the Minister supports. It is important that UK citizens travelling to other EU countries are afforded a high level of protection with respect to criminal procedural rights.

15.15  He explains that the current practice in England and Wales is to provide all arrested persons who are detained at a police station with a 'Notice of Rights and Entitlements' as set out in the Police and Criminal Evidence Act 1984 (PACE), Code C. The police have access to, and routinely use, written (and if more appropriate oral) translations of the Notice of Entitlements. So the Government is broadly content with the principle of a letter of rights. (The requirement to provide all arrested persons with a Notice of Rights and Entitlements applies in Northern Ireland by virtue of the Police and Criminal Evidence (Northern Ireland) Order 1989 Code of Practice C.)

15.16  The Government will give careful consideration to the likely practical impact that the Directive on the operation of the European Arrest Warrant.

15.17  Within the UK, there is already a requirement for police officers and prosecutors to provide information of this nature to persons charged with an offence. The Directive could ensure that UK citizens charged with an offence in another Member State are able to receive the same information. So the Government is content with the principle of the right to information about charge.

15.18  But the extent to which the draft Directive addresses the rules on disclosure of evidence to the suspected or accused person may be "of possible concern" to the Government.

15.19  The Government anticipates legislative changes would be required in order to implement this Directive. In particular in Scotland there is currently no provision for a letter of rights. In addition, there may be implications around the right to disclosure of information by the police and prosecution.

15.20  Any substantive impact would be restricted to the public sector within the criminal justice system. However an impact assessment will be prepared detailing costs and additional administrative burdens and financial costs.

15.21  The Government will provide a more detailed view on fundamental rights in due course.

15.22  The Government will be consulting relevant groups who have an interest in European criminal law. The Government will seek views on the current text, and how this instrument might best work for UK citizens in other EU Member States.


15.23  The Minister's Explanatory Memorandum has the appearance of a rushed job. We would have benefitted greatly from an assessment by the Minister of the pros and cons of opting into this proposal. We ask that, in future, such an assessment is included in an Explanatory Memorandum on a proposal under Title V TFEU. As we have only eight weeks within which to scrutinise the opt-in decision, this would help us carry out our task more meaningfully.

15.24  We would have also benefitted from a thorough assessment of whether the Government, rather than the Commission, thinks the proposal complies with the principle of subsidiarity. For example, we have serious doubts about whether the EU should be regulating how criminal evidence is disclosed in place of Member States, and would have recommended that the UK consider not opting into the proposal unless it were satisfied that enough Member States were similarly concerned to ensure that the provisions on disclosure would be dropped. We would also have wanted to hear whether, in the Government's view, it was necessary for the EU to impose a training obligation on Member States.

15.25  So we ask the Minister to write to us in time for our next meeting addressing, along the lines above, how the Government has approached the opt-in decision and whether, on further review, the Government thinks the proposal complies with the principle of subsidiarity.

In the meantime the proposal remains under scrutiny.

67   See (30985): HC 19-xxviii (2008-09), chapter 15 (21 October 2009).  Back

68   COM (2010) 329 final. Back

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2010
Prepared 24 September 2010