Documents considered by the Committee on 20 October 2010 - European Scrutiny Committee Contents

6 Right to information in criminal proceedings



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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
Deposited in Parliament28 July 2010
Basis of considerationMinister's letter of 29 September 2010
Previous Committee ReportHC 428-ii (2010-11); chapter 15 (15 September 2010)
To be discussed in CouncilNo date set
Committee's assessmentLegally important
Committee's decisionNot cleared; further information requested


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.


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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