3 Right to information in criminal proceedings
| (31834)
12564/10
+ 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 base | Article 82(2) TFEU; co-decision; QMV
|
| Department | Justice
|
| Basis of consideration | Minister's letters of 26 October and 18 November
|
| Previous Committee Report | HC 428-ii (2010-11), chapter 15 (15 September 2010); HC 428-iv (2010-11), chapter 6 (20 October 2010)
|
| To be discussed in Council | 2-3 December 2010
|
| Committee's assessment | Legally and politically important
|
| Committee's decision | For debate in European Committee B
|
Background
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.
Conclusion
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
| 
