6 Right to information in criminal proceedings
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12564/10
+ ADD 1-2
COM(10) 392
| Draft 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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| Deposited in Parliament | 28 July 2010
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| Department | Justice
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| Basis of consideration | Minister's letter of 29 September 2010
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| Previous Committee Report | HC 428-ii (2010-11); chapter 15 (15 September 2010)
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| To be discussed in Council | No date set
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| Committee's assessment | Legally important
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| Committee's decision | Not cleared; further information requested
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Background
6.1 This proposal is the second step of the procedural rights
Roadmap, which was adopted by the Council in November 2009[17]
and subsequently included in the Stockholm Programme. The Roadmap
gave a mandate to the EU to bring forward five legislative and
non-legislative measures to safeguard procedural rights in criminal
proceedings.
6.2 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.
6.3 We reported in detail on the contents of the
proposal on 15 September.[18]
In conclusion we said we thought the Explanatory Memorandum submitted
by the Parliamentary Under-Secretary of State for Justice (Crispin
Blunt) looked like a rushed job, because it did not address the
arguments for and against the UK opting into the proposal and
did not contain a sufficient assessment of whether the proposal
complied with the principle of subsidiarity. We were also concerned
that the proposal sought to regulate the disclosure of evidence,
which we thought was more appropriately left to Member States,
and to impose training obligations on Member States.
The Minster's letter of 29 September
6.4 In order to provide the Committee with an Explanatory
Memorandum within the ten day limit and before Parliamentary recess,
the Minister explains that it was deposited the day after the
proposal was sent to the Committee. In this very short timescale,
a full assessment of the pros and cons of opting into this proposal
was not possible and the Government provided as full an analysis
as possible in the time provided. An impact assessment will follow
in due course setting out the costs and benefits of the proposal.
6.5 He explains that the UK already complies with
many of the provisions of the draft Directive, which draws clear
inspiration from the letter of rights provided to those in custody
in England, Wales and Northern Ireland (the PACE letter) recently
praised as being the best letter of rights available across Europe.
In England, Wales and Northern Ireland, with the exception of
the disclosure Article, the overall legislative impact is slight.
There is greater impact in Scotland as rights are given to the
suspect orally and are not uniformly provided in a written form.
He says the main thrust of the Directive on the letter of rights
can be seen as an attempt to bring some other Member States, where
standards leave something to be desired, up to a standard which
already exists here. So the Minister concludes that the draft
Directive will improve the lot of Britons subject to the criminal
justice systems of other Member States and opting into the measure
would send out a strong signal that the UK is serious about protecting
the rights of Britons abroad.
6.6 In terms of our concerns about subsidiarity,
as the purpose of the measure is to seek to build trust across
Member States, the Government considers the proposal to be consistent
with the principle of subsidiarity. This measure, along with others
on the Roadmap, is an important support and counterbalance to
measures such as the Framework Decision on the European arrest
warrant, the exchange of information from criminal records, mutual
recognition of decisions on supervision measures and the mutual
recognition of judgments in criminal matters imposing custodial
sentences. Such instruments are based upon mutual trust. The purpose
of the adoption of minimum standards is to assure appropriate
levels of trust. Given that measures of mutual recognition apply
across the EU, the Government agrees that measures intended to
build such trust cannot be pursued exclusively at the level of
the individual Member State.
6.7 The Government does not object in principle to
the inclusion of a provision on training in the Directive. Given
the fact that according to the Commission, only 12 Member States
provide a letter of rights to arrested persons, it understands
the Commission's approach in wanting to ensure that the new system
is properly embedded by means of training. And the Minister notes
that a provision on training is included in the Directive on Interpretation
and Translation. The Government is however concerned that the
wording of the training provision does not draw a distinction
between the role of a Member State and the role of its independent
judicial authorities. The text included within the Directive on
Interpretation and Translation, which requires that Member States
should encourage judicial authorities to provide training in the
areas mentioned, is a better formulation.
6.8 The Minister notes that we have serious doubts
as to whether the EU should be regulating how criminal evidence
is disclosed, but says that the principle of defence access to
evidence is one which is set out within the ECHR, upon which the
present Directive builds. That said, the Government does have
concerns about the prescriptive nature of Article 7. There are
a number of ways in which access to evidence can be allowed. This,
he says, is a view shared by a significant number of other Member
States and the UK is not isolated in trying to secure amendments.
The negotiability of this provision forms one of the central tenets
of the Government's deliberations as to whether the UK should
opt into this proposal.
6.9 The Minister concludes his letter by saying that
he will keep us informed of developments as negotiations proceed
and inform us of the Government's decision on whether or not to
opt into this proposal.
Conclusion
6.10 We are grateful for the further explanations
contained in the Minister's letter; we had not appreciated the
time within which the Explanatory Memorandum had to be completed.
We still have serious misgivings about whether disclosure of evidence
in criminal proceedings should be regulated in an EU Directive,
but we note that the Government has concerns of its own over Article
7, and wait to hear from the Minister with a further update on
the negotiations.
6.11 In the meantime the proposal remains under
scrutiny.
17 See (30985): HC 19-xxviii (2008-09), chapter 15
(21 October 2009). Back
18
See headnote. Back
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