Documents considered by the Committee on 24 November - European Scrutiny Committee Contents

3 Right to information in criminal proceedings



+ ADDs 1-2

COM(10) 392

Draft 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
Basis of considerationMinister's letters of 26 October and 18 November
Previous Committee ReportHC 428-ii (2010-11), chapter 15 (15 September 2010); HC 428-iv (2010-11), chapter 6 (20 October 2010)
To be discussed in Council2-3 December 2010
Committee's assessmentLegally and politically important
Committee's decisionFor debate in European Committee B


3.1 This proposal is the second step of the procedural rights Roadmap, which was adopted by the Council in November 2009[4] 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.

3.2 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.

3.3 We have reported twice on this proposal, on 15 September and 20 October.[5] Our principal outstanding concern is that the proposal seeks to regulate the disclosure of evidence, which we think is more appropriately left to Member States given the difference in approach to disclosure in civil and common law jurisdictions.

The Minister's letters

3.4 The Secretary of State for Justice (Kenneth Clarke) wrote to the Committee on 26 October saying that the Government had opted into the draft Directive on 22 October; he attached a copy of the initial impact assessment which was considered by the Government in deciding whether to opt in.

3.5 The Minister placed a Written Ministerial Statement before Parliament on the opt-in on 25 October, which stated that:

"The draft directive will provide minimum standards for individuals subject to criminal proceedings. British citizens abroad will benefit under the directive from increased confidence in procedural standards across the European Union. It will also increase security at EU level by supporting existing provisions which help combat crime and promote the rule of law.

"The Government will approach forthcoming legislation in the area of criminal justice on a case-by-case basis, with a view to maximising our country's security, protecting Britain's civil liberties and preserving the integrity of our criminal justice system."

3.6 On 18 November the Minister wrote again, saying that the Belgian Presidency wants to agree a general approach on the proposal at the JHA Council on 2-3 December. So he asks for our agreement to lifting the Parliamentary scrutiny reserve based upon progress in negotiations so far and amendments his officials are working hard to secure in the week before the JHA Council. He says he appreciates that the speed of negotiations, which has been driven by a desire to maintain momentum on the delivery of the measures on the procedural rights Roadmap, has limited the time available for detailed scrutiny of the proposal.

3.7 Turning to comment on the progress achieved in negotiations, the Minister reports that, overall, the draft has improved and is now largely acceptable to the UK.

3.8 The requirement in Article 3 to provide information on procedural rights has been clarified and it is now clearly set out that the obligation is to provide information on national law on the right of access to a lawyer, the conditions to obtain access to a lawyer free of charge, the right to interpretation and translation and the right to silence. The Government is content that this accommodates the current operational practice in the UK.

3.9 Article 4 on written information on rights to be provided on arrest, and Article 5 on the information on rights to be provided where a person is arrested pursuant to a European Arrest Warrant are acceptable and would not cause the UK any difficulties given current practice in England, Wales and Northern Ireland. The Government is content with this.

3.10 Article 6 has changed somewhat from the previous version of the draft Directive in that it covers the right to information on arrest as well as when a person is officially accused or charged. The language now makes clear that information on the offence that a person is suspected of having committed should be provided before police interview — a principle which the Government can support. It is now less specific about the precise information that should be given to the suspect about his accusation — something that the Government supports given that it had some technical difficulties with the previous version of the text — for example it considered the phrase "degree of participation" unclear. The draft Directive now calibrates the extent of information that should given at arrest and at later stages of proceedings — a helpful clarification given that precise details of the offence may not always be known at the moment the person is first arrested. As a result of these changes, the Article is now acceptable to the Government.

3.11 Article 7 which covers the disclosure of evidence has proven, not unexpectedly, the most complex element of the proposal. Practice varies significantly between Member States, and in particular there are major differences between the common law and civil law jurisdictions. The original draft based itself on the civil law practice of allowing the defence physical access to a case file, which occurs both at the trial and, often to a more limited extent, in the pre-trial phase. Within the UK and other common law jurisdictions, the prosecutor provides the defence with the case on which he will seek to rely, plus any evidence that undermines that case and any exculpatory evidence, rather than allowing access to a case file as such. The Government has secured amendments to allow for both common law and civil law jurisdictions. The focus of the current text is on the obligation to grant access to at least all material evidence in the possession of the competent authorities for or against the suspected or accused person or his lawyer to safeguard the fairness of proceedings and to prepare the defence. Access to the materials will be granted in due time to allow the effective exercise of the right of defence, and at the latest upon submission of the merits of the accusation to the judgement of a court.

3.12 The one remaining question is the extent to which a Member State can withhold access to evidence. The original text only allows for two possibilities where access can be denied — where allowing access to the evidence would lead to a serious risk to the life of another person or seriously harm the internal security of the Member State in which the proceedings take place. Within the UK, as with other common law jurisdictions, the prosecutor cannot withhold the evidence on which he will rely in court, but he can apply to the judge to withhold evidence where disclosing that evidence would pose a risk of real harm to an important public interest. This is in line with European Convention on Human Rights case law, such as Rowe and Davis v UK.[6] Whilst the text now allows for broader exemptions from disclosure than those provided for in the published text, including where disclosure would prejudice an ongoing investigation or present a serious risk to the fundamental rights of another person, these are on the one hand narrower than the public interest test and on the other hand broader than UK practice in that no distinction is made between used and unused material.

3.13 Both the Presidency and the Commission have announced their intention to find language on Article 7 that fits both common law and civil law jurisdictions. This point will be discussed at a senior officials' meeting on 23 November. The UK has support from a number of other Member States, some of which have policy concerns about the current exemptions and others which are willing to be flexible in order to accommodate the common law Member States. If such an amendment is not secured, the Minister says he would not be content to agree to the general approach at the JHA Council.

3.14 The Government has secured changes to Article 8 which renders it less burdensome for police authorities. The current text is compatible with practice in England, Wales and Northern Ireland.

3.15 Article 9 on training now echoes the language of the Directive on Interpretation and Translation in that it makes specific reference to the independence of the judiciary and provides that Member States should request rather than require training from those responsible for the training of judges, prosecutors, police and judicial staff. The Government is content with this Article.

3.16 The remaining provisions, dealing with issues such as non-regression, transposition and entry into force, are technical and cause the UK no problems.


3.17 We thank the Minister for his letters. We are pleased to note the improvements in the draft proposal that he reports. But we do maintain serious reservations about whether an 'EU' approach to disclosure of evidence is appropriate or possible, given the national sensitivity surrounding rules of disclosure in any criminal justice system and the marked differences in approach between common and civil law jurisdictions.

3.18 We consider that the scope of this proposal and its impact on domestic criminal procedure and practice is so significant that it should be debated by the House before the Minister decides whether to agree to a general approach on it at the JHA Council on 2 December. We therefore recommend the proposal to be debated in European Committee B.

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

5   See headnote. Back

6   (2000) 30 EHRR 1. Back

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