15 Right to information in criminal
proceedings
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12564/10
COM(2010) 392
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+ 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
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| Legal base | Article 82(2) TFEU; co-decision; QMV
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| Document originated | 20 July 2010
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| Deposited in Parliament | 28 July 2010
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| Department | Justice
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| Basis of consideration | EM of 27 July
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
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.
Conclusion
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
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