Documents considered by the Committee on 9 February 2011 - European Scrutiny Committee Contents

11   Right to information in criminal proceedings


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
Document originated
Deposited in Parliament
Basis of considerationEM of 14 December 2010
Previous Committee ReportNone; but see (31834) 12564/10: HC 428-ii (2010-11), chapter 15 (15 September 2010); (31834) 12564/10: HC 428-iv (2010-11), chapter 6 (20 October 2010); (31834) 12564/10: HC 428-ix (2010-11), chapter 3 (24 November 2010)
To be discussed in CouncilNo date set
Committee's assessmentLegally important
Committee's decisionNot cleared; further information requested


11.1  This proposal is the second step of the procedural rights Roadmap, which was adopted by the Council in November 2009[58] 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.

11.2  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. More problematically, the proposal seeks to regulate the disclosure of evidence.

Previous scrutiny

11.3  We last considered the proposal on 24 November 2010, when we were pleased to note the improvements reported by the Government. However, we maintained serious reservations about whether an EU approach to disclosure of evidence was appropriate or even 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. We concluded that the scope of this proposal and its impact on domestic criminal procedure and practice was so significant that it should be debated by the House before the Minister decided whether to agree to a general approach on it at the JHA Council on 3 December. We therefore recommended it to be debated in European Committee B. The debate took place on Thursday 2 December.

The document

11.4  The Secretary of State for Justice (Mr Kenneth Clarke) has now deposited the version of the proposal agreed by general approach in the Council on 3 December. It will now be the subject of first reading negotiations with the European Parliament. The contents of the proposal are set out in the Minister's Explanatory Memorandum below.

The Government's view

11.5  In his Explanatory Memorandum of 14 December 2010, the Minister says that the general principle of safeguarding criminal procedural rights is one which the Government 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; the Government is committed to ensuring that trials in the UK are fair, whatever the nationality of the person being tried. Overall, he says the Government is content with the recitals and Articles as currently drafted; they would require minimal changes to the UK legal system, if there are no further amendments, as the UK already exceeds the majority of the minimum standards set by the Directive.

11.6  He then sets out the changes to the text of the proposal since the Commission's proposal was deposited in July last year.


11.7  Recitals 1 and 2 of this Directive recall the establishment (following the Tampere Conclusions) of mutual recognition as the cornerstone for judicial cooperation in the EU. Recitals 3 and 4 make the link between implementation of the principle of mutual recognition and the need for mutual trust between respective criminal justice systems. Recitals 5 and 6 make reference to Articles of the ECHR and Charter of Fundamental Rights (the Charter) that are relevant to upholding a defendant's right to a fair trial and respecting the right of the defence. Recital 7 notes that being party to the ECHR does not in itself guarantee that trust, whilst Recital 8 states that detailed rules on the protection of the procedural rights and guarantees help strengthen mutual trust.

11.8  Recitals 9 and 10 refer to Article 82(2)(b) of the TFEU as a basis for establishing minimum rules in order to improve judicial cooperation through mutual trust. Recitals 11 and 12 refer to the Roadmap on Procedural Rights, as incorporated into the Stockholm Programme. Recital 13 notes that the first measure on the Roadmap is the Directive on the right to interpretation and translation in criminal proceedings. Recital 14 explains that the Directive relates to Measure B of the Roadmap.

11.9  Recital 15a clarifies that the measure is not intended to apply to sanctions imposed by an authority other than a criminal court. This means that minor offences, such as traffic offences, which are dealt with by administrative means would not be covered by the Directive unless they were appealed against or referred to a criminal court.

11.10  Recital 16 states that the Directive explicitly establishes the right to information about procedural rights. Recital 18, which corresponds to Article 3, provides further clarification that information about rights referred to in the Directive should be provided in due time to safeguard the fairness of proceedings. 18a explains that there is no need to reiterate the information about rights at each stage of proceedings unless the circumstances of the case require it. Recital 19, which corresponds to Article 4, explains that a letter of rights must be drafted in an easily comprehensible manner. 19a clarifies that the letter of rights can be taken away from the arrested person in exceptional circumstances if necessary to safeguard the safety of the person under arrest or another person. 19c states that competent authorities must pay particular attention to those persons who cannot understand or follow the content or meaning of the information. Recital 20, which corresponds to Article 6, states that a person accused of having committed a criminal offence should be given all information necessary on the criminal charge to enable him to prepare his defence and safeguard the fairness of proceedings.

11.11  Recital 21a, relates to Article 7 and states that for the purposes of this Directive access to the materials of the case should include at least access to the material evidence, as defined in national law, which is for or against the suspected or accused person and in the possession of the competent authorities in relation to the specific criminal case. Such information may be contained in a case file or otherwise held by competent authorities in any appropriate way in accordance with national law. 21b states that access to such material evidence may be refused in accordance with national law if this may lead to the serious risk for the fundamental rights of another person or if strictly necessary to safeguard an important public interest. It further states that limitations should be interpreted in accordance with the principle of the right to a fair trial and as interpreted by ECHR case law. Recital 21c clarifies that national law is to define how such access can be achieved and 21d clarifies that consultation of the materials of the case should be free of charge, though copies can incur fees.

11.12  Recital 22a, clarifies that Member States are not obliged to provide a specific appeal procedure, mechanism or complaint procedure in order to comply with the requirements in Article 8.

11.13  Recital 23 addresses how Member States can comply with the requirements in Article 9 regarding the training provisions.

11.14  Article 23a clarifies that in order to comply with the Directive practical and effective implementation of some of the provisions can be achieved by non legislative means, for example by providing a letter of rights in simple and non technical language.

11.15  Recital 25 clarifies that the right to be informed about rights on arrest also applies to persons arrested for the purposes of the execution of a European Arrest Warrant (EAW).

11.16  Recital 26 corresponds to Article 10 and clarifies that the Directive contains minimum rules but that Member States can extend the rights, however the rights should never go below standards provided by ECHR. Recital 27 states that provisions within the Directive observe the rights recognised by the Charter and Recital 28 states that where provisions correspond to rights guaranteed by ECHR they should be implemented accordingly.

11.17  Recital 29 states that common minimum standards cannot be achieved unilaterally and therefore accord with the principle of subsidiarity.

11.18  Recitals 30 and 31 refer to the protocols applicable to the UK, Ireland and Denmark regarding participation in this Directive.


11.19  Article 1 sets the objective of the Directive, which is to lay down rules concerning the right to information about procedural rights in criminal proceedings and proceedings for the execution of an EAW and about the charge in criminal proceedings. The objective is now more specific than in the original version, which was to lay down rules 'concerning the right of suspected and accused persons to information about their rights and about the charge in criminal proceedings against them.'

11.20  Article 2 sets out the scope of the Directive. This remains largely unchanged from the original text however the phrase "as established by national law" has been inserted after "by official notification or otherwise" in order to clarify that the Directive does not change the manner which Member States inform suspected persons that they are under suspicion of having committed an offence. Article 2 Paragraph 3 has been included to clarify that minor offences are not included in the scope. This is intended to cover matters such as fixed penalty notices and minor traffic offences.

11.21  Article 3 deals with information about rights to be given to suspected or accused persons. Information must be given about the rights "as they apply under national law". This is to clarify that the Directive does not provide new rights or change the application of the rights within Member States. The requirement is that information about the rights as they apply in national law should be given. The list of procedural rights in Article 3 Paragraph 1 has been amended to include the right to silence in accordance with national law. In the UK all persons are informed of their right to silence when cautioned by the police. In England, Wales and Northern Ireland, where there is a qualified rather than absolute right to silence, all persons are also informed of the potential implications of remaining silent: if a person does remain silent it may harm their defence if they do not mention something which they may later rely upon in court. The right to be brought promptly before a court is no longer dealt with in Article 3 as it sits more appropriately in Article 4. This is because not all persons suspected or accused of having committed an offence go on to be arrested.

11.22  Article 3 Paragraph 1a has been amended in order to clarify that police officers are not obliged to recite a list of rights at the point of arrest, irrespective of whether they are relevant to person at that time. Information about the rights must be given "when the rights become applicable".

11.23  The language in Article 4 has been made more specific as to the particular rights that should be communicated. 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. 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.

11.24  There are no longer references in Article 4 to persons who are partially sighted or cannot read. There are also no longer references to specific provisions for children. Provisions covering these matters are included in Recital 19, 19a and 19c. It was felt that specific provisions within the substantive text should be removed as they are matters that will arise within Measure E of the Roadmap — Special Safeguards for Suspected or Accused Persons who are Vulnerable.

11.25  Articles 4 and 5 refer to indicative model Letters of Rights which are currently provided in an annex. The content of the indicative models has not yet been discussed.

11.26  The language in Article 5 has also been clarified to be more specific. Member States must now provide persons arrested for the purposes of EAW proceedings with information about Article 11, 13(2) and 14 of the EAW Framework Decision 2002/584/JHA in accordance with national law. This accords with current practice in England, Wales and Northern Ireland.

11.27  Article 6 has been made more specific. Article 6 Paragraph 1 deals specifically with the arrest stage of proceedings. Article 6 Paragraph 1a deals with any official interview conducted by the police or competent authority, and is intended to apply to cases where arrest is unnecessary.

11.28  References to children have been removed as again it was felt that this provision would be better dealt with in Measure E in the Roadmap. Article 6 Paragraph 2 refers to the charge. A person charged with an offence must be given sufficient information about the 'nature and cause' of the charge in order for them to be able to exercise their right of defence.

11.29  Article 6 Paragraph 3 details when information should be provided — "at the latest upon submission of the merits of the accusation to the judgement of a court." This means that the accused person must have the information at the latest by the time the prosecution case is put before the court for adjudication. The information that must be provided is detailed in Article 6 Paragraph 3a and b. The current text no longer refers to the "degree of participation in the offence" which we considered to be vague. For the same reason the text has also been amended to require a "description of the acts" rather than the "description of the circumstances in which the offence was committed".

11.30  The most significant changes the UK has secured are to Article 7. The original Commission text referred to a "case file", but there was no shared understanding in all Member States of what the concept means. The Article also did not provide for applications for public interest immunity to allow material not to be disclosed where it would pose a serious risk to an important public interest. The Government has secured amendments which accommodate the UK systems of disclosure. The Article now refers to access to "materials of the case" rather than access to the case file. The text is now clearly based on ECHR case law. Article 7 Paragraph 1 provides that the information that is essential to challenge arrest or detention should be provided to the defence. Article 7 Paragraph 2 sets out that the suspected or accused person or his lawyer should be granted access to at least all material evidence for or against that person to safeguard the fairness of proceedings and to prepare the defence. Article 7 Paragraph 3 sets out that such access should 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". It also ensures that the principle of continuing disclosure is preserved, so that further material can be disclosed where appropriate.

11.31  Article 7 Paragraph 4 provides for exceptions to the disclosure obligation where it may lead to a serious risk to the fundamental right of another person or if strictly necessary to safeguard an important public interest. This is consistent with the public interest immunity test used within the UK for unused material.

11.32  Article 8 Paragraph 1 is now much more specific in that Member States will need to note when Articles 4(1), 5 and 6 (1a) have been complied with, i.e. that a letter of rights or an EAW letter of rights have been given to the suspected or accused, or in an interview that a suspected or accused person has been informed what criminal act they are suspected of having committed. This places less of a burden on Member States than the original text. It is also consistent with practice in England, Wales and Northern Ireland. Article 8 Paragraph 2 clarifies that the right to challenge a failure or refusal to provide information is 'in accordance with procedures in national law' and therefore need not be a right of challenge specifically put in place to deal with matters stemming from the Directive.

11.33  At Article 9, on training, the Government secured an amendment to ensure that the independence of the judiciary is respected, requiring now that Member States should "request" rather than "ensure" that training is provided by those responsible for the training of judges, prosecutors, police and judicial staff with respect to the objectives of the Directive.

11.34  Article 10 is a non-regression clause, consistent with that contained in the EU Directive on the right to interpretation and translation in criminal proceedings. The Article clarifies that nothing in the Directive can be interpreted as impacting on the standards set by the ECHR, or other relevant provisions of international or domestic law.

11.35  Articles 11-14 have been amended to be consistent with the Directive on the right to interpretation and translation in criminal proceedings and deal with transposition of the Directive into national law, the Commission's report following implementation, date of entry into force and addresses.


11.36  We thank the Minister for this very thorough review of the recitals and Articles in the text of this draft Directive as agreed by the Council on 3 December last year. We note that he says that the disclosure obligations in Article 7, upon which much of the debate in European Committee was focussed, are consistent with common law practice, particularly the public interest immunity test used within the UK for unused material.

11.37  We look forward to an update in due course on the first reading negotiations.

11.38  In the meantime the proposal remains under scrutiny.

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

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