11 Right to information in criminal
|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
|Deposited in Parliament||
|Basis of consideration||EM of 14 December 2010
|Previous Committee Report||None; 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 Council||No date set
|Committee's assessment||Legally important
|Committee's decision||Not 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
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.
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.
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
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
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
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
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
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
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
58 See (30985) -: HC 19-xxviii (2008-09), chapter 15
(21 October 2009). Back