12 Procedural safeguards for suspects
and accused persons in criminal proceedings
| (35653)
17645/13
COM(13) 820
| Commission Communication: Making progress on the European Union Agenda on Procedural Safeguards for Suspects or Accused Persons — Strengthening the Foundation of the European Area of Criminal Justice
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| Legal base
| — |
| Document originated
| 28 November 2013
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| Deposited in Parliament
| 16 December 2013
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| Department
| Ministry of Justice
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| Basis of consideration
| EM of 22 January 2014 and Minister's letter of 20 January 2014
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| Previous Committee Report
| None; but see (35642) 17621/1: HC 83-xxix (2013-14), chapter 1 (22 January 2014); (35646) 17633/13: HC 83-xxix (2013-14), chapter 2 (22 January 2014); and (35652) 17635/13 chapter 3: HC 83-xxix (2013-14), chapter 3 (22 January 2014)
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| Discussion in Council
| None expected
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| Committee's assessment
| Legally and politically important
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| Committee's decision
| Not cleared; relevant to the opt-in debates recommended on the above documents
|
Background and previous scrutiny
12.1 Following the "procedural
Rights Roadmap" ("the Roadmap") which was agreed
by resolution of the European Council in 2009 and later confirmed
in the Stockholm Work Programme, the Commission proposed a Directive
on the right to interpretation and translation in criminal proceedings
in October 2010, a second Directive on the right to information
in criminal proceedings in May 2012 and a third Directive on the
right of access to a lawyer in criminal proceedings on 22 October
2013. The UK Government exercised its rights pursuant to the JHA
opt-in Protocol to participate in and be bound by the first two
Directives, but not the third, though there is still the possibility
of a post-adoption opt-in. The
first of these Directives was implemented on 27 October 2013.
The second will be transposed in time to be implemented in June
2014.
12.2 In implementing the Roadmap and
Stockholm Work Programme, the Commission recently published its
new Procedural Rights package including the following legally-
binding measures:
i) A Directive on presumption of
innocence and the right to be present at trial in criminal proceedings
(35642)(17621/13);[50]
ii) A Directive on children suspected
or accused in criminal proceedings (including European Arrest
Warrant proceedings) (35646) (17633/13);[51]
and
iii) A Directive on legal aid (35652)(17635/13).[52]
12.3 The package also includes two non
legally-binding proposals:
i) A Recommendation on vulnerable
defendants (35656) (17642-13);[53]
and
ii) A Recommendation on legal aid
(35657) (17643/13).[54]
12.4 As we had received the Government's
Explanatory Memoranda on those documents, supplemented by a letter
from the Secretary of State for Justice (Chris Grayling) of 20
January 2014, we were able to report on all those proposals in
our Thirty-second Report of 22 January. We recommended that, as
regards the decision as to whether the UK should opt-in (pursuant
to the JHA Protocol (No. 21)) to the legally-binding proposals,
the three draft Directives should be debated separately on the
floor of the House.[55]
We also recommended in our chapter on the draft Directive on the
presumption of innocence[56]
that the House adopt the draft Reasoned Opinion (which argues
that the proposal breaches the subsidiarity principle) attached
to that Report, after debate on the floor of the House, to then
be sent to the Presidents of the EU Institutions by 12 February.
12.5 We were not in a position to report
on the current document, the Communication on the procedural rights
package, at the same time as we had not by then received a signed
Explanatory Memorandum from the Minister. The reason for this
given by the Minister in his letter of 20 January was reported
in paragraph 1.37 of our Thirty-first Report, (2013-14), HC 83-xxviii,
dated 22 January 2014, on the draft Directive on the presumption
of innocence (35642) 17621/13.
The current document
12.6 The Communication sets out the
context and rationale for the Commission's latest and linked Procedural
Rights proposals and then summarises the main elements of each
proposal.
DIRECTIVE ON PRESUMPTION OF INNOCENCE
12.7 The Communication explains the
Commission's view that, whilst the production of a Presumption
of Innocence Directive was not specified on the Roadmap, it was
an area the Commission was invited to consider in the Stockholm
Work Programme. It states that in its view the level of safeguards
in Member States' legislation in respect of this issue is in general
acceptable and suggests that there does not seem to be any systemic
problem in this area. However, it nonetheless considers there
still exist points on which legal safeguards should be strengthened
and sets out proposals on those aspects. The measure specifically
proposes common rules on: prohibiting public references to guilt
before conviction; any doubt about guilt being to the benefit
of the accused; the right to remain silent and not to incriminate
oneself; and the right to be present at one's trial.
DIRECTIVE ON PROCEDURAL SAFEGUARDS FOR CHILDREN
12.8
The Communication
suggests the proposed Directive
on procedural safeguards for children is necessary as, being inherently
vulnerable, children require special attention and protections.
The Directive sets out proposals to provide procedural safeguards
for children from the time they are suspected or accused and provides
children: will be assisted by appropriate adults in the process;
have a right to legal assistance than cannot be waived; be assessed
at an appropriate stage of proceedings and in any event before
indictment, have their age and maturity recognised throughout
the proceedings; have the right to be present at trial; that trials
concerning children should be heard in private; and establishes
that any deprivation of liberty before a conviction is only as
a "last resort". It also sets out provisions concerning
training of the professionals involved working with child suspects.
RECOMMENDATION ON VULNERABLE DEFENDANTS
12.9 There is an associated Commission
recommendation covering others who may be considered vulnerable
in criminal proceedings for reasons other than age. It suggests
assessment mechanisms should be set up to detect and recognise
such suspects and these should be independent. It seeks to establish
safeguards such as mandatory access to a lawyer, third-party assistance
and audio-visual recording of police questioning. The Recommendation
is not legally binding and is presented for Member States to consider
and act upon as they consider merited. The Commission will, however,
review the impact its Recommendation has had in four year's time
and suggests legislative measures might be proposed at that point
if the Commission considers that is justified.
DIRECTIVE ON PROVISIONAL LEGAL AID
12.10 In discussing its proposed Directive
on Legal Aid the Communication explains it considers the measure
is necessary to enable the effective access to a lawyer for all.
It proposes common rules concerning "provisional legal aid"
which would in its view guarantee legal aid was available at the
early stages of proceedings and specifically makes rules concerning
European Arrest Warrant proceedings. It provides that this "provisional
legal aid" should be available pending any final decision
on an application for legal aid. It also aims to guarantee the
right to legal aid for persons subject to an EAW in certain other
circumstances.
RECOMMENDATION ON LEGAL AID
12.11 The Commission Communication describes
that its Recommendation on legal aid that accompanies the proposed
Directive is made to facilitate greater convergence in the criteria
for deciding on the right to legal aid amongst Member States,
and to ensure the quality and effectiveness of legal aid services.
The Recommendation is not legally binding and is an invitation
for Member States to consider acting upon as each considers is
merited. As with the Recommendation on vulnerable defendants the
Communication adds that it is the Commission's intention to review
what steps have been taken by Member States in four years' time
and may at that point propose legislative measures on these aspects
if it considers those are justified.
RATIONALE FOR THE PROCEDURAL RIGHTS PACKAGE
12.12 The Commission says the following
about the rationale of the overall package of proposals:
· that there is a need to give
effect to a common legal framework for fundamental procedural
rights: the EU Charter of Fundamental Rights and the European
Convention on Human Rights (ECHR), in particular the right to
an effective remedy, to a fair trial, to be presumed innocent
and a right of defence as provided for in Articles 47 and 48 of
the Charter and in Article 6 of the ECHR;
· existing EU legislation on
judicial co-operation and mutual recognition, including the EAW,
can only operate satisfactorily if Member States trust each other's
criminal justice systems — the best way of ensuring mutual
trust is by setting common minimum standards for criminal procedural
rights;
· that the need to protect
the fair trial rights of suspects and accused involved in criminal
proceedings has a clear cross-border dimension as 14.1 million
EU citizens reside permanently outside their home country and
they and other citizens travelling across borders risk becoming
involved in criminal proceedings outside their country;
· there is a need to build
on the existing EU procedural rights legislation by strengthening:
— the existing Directive on
the right to information (including on the right to remain silent)
with an EU-wide right to presumption of innocence;
— the existing Directive on
interpretation and translation (for those who cannot linguistically
understand criminal proceedings in another country) by ensuring
that children (who may not have the mental capacity to understand)
are able to follow and participate in criminal proceedings; and
— the existing Directive on
a right to access to a lawyer with a right to funding of that
legal representation.
· that the package represents
balanced action at EU level, with each element of the proposals
having been assessed to decide whether such action is justified,
particularly taking into account costs implications for Member
States (giving as an example the lack of legally binding restrictions
on eligibility testing for Legal Aid); and
· that the proposals will strengthen
the legal safeguards for individuals involved in proceedings by
the European Public Prosecutor's Office (EPPO) and foster public
trust in the EPPO, making reference to the recent proposal to
establish an EPPO which provides that a suspect shall have all
rights guaranteed by EU legislation, by the EU Charter and by
applicable national law.
CONCLUSION
12.13 In the rest of the Communication,
the Commission explores the main elements of each of the five
documents referred to in paragraphs 12.2-12.3 above, but these
have already been summarised by us in our Reports on these documents.[57]
12.14 It then concludes that the package
"reflects common minimum standards for the right to fair
trial in the EU" which combined with existing instruments
"make cross-border judicial co-operation a reality in a climate
of mutual trust" which "fosters the development of the
European area of freedom, security and justice".
12.15 It says that this progress on
its Procedural Rights Agenda will be bolstered by the end of the
transitional third pillar regime which expires on 30 November
2014, meaning that from that date, the Commission will have enforcement
powers over the whole of the JHA acquis and the Court of
Justice will have full jurisdiction for pre-Lisbon mutual recognition
legislation. This, combined with the establishment of an EU-wide
prosecution system for fraud on the EU budget (the EPPO) "will
change the landscape of the EU area of criminal justice".
The internationalisation of crime makes this further development
of procedural rights an imperative.
12.16 Finally the Commission, looking
to the future, suggests that the impact of the proposed legislation
will need to be reviewed once transposed and operational in national
law to assess whether further consolidating (and remedying) EU
legislation is needed.
The Government's view
12.17 In an Explanatory Memorandum submitted
on 22 January 2014, the Secretary of State for Justice addresses
the following points.
Policy implications
12.18 Given that the Communication is
essentially a non-legislative discussion document to accompany
publication of the individual proposals it has no policy implications
of its own. The implications identified so far of the proposals
themselves are set out in the relevant Explanatory Memoranda submitted
separately on those proposals.
12.19 However the Minister recaps what
the policy concerns are in relation to each draft Directive:
"The proposed Directive on
presumption of innocence aims to set common minimum standards
throughout the European Union on certain matters that the Commission
has identified in relation to the rights of suspects and accused
persons to be presumed innocent until proven guilty; and to be
present at one's trial. As set out in Justice Secretary's letter
of 20 January, the Government considers that the proposal reflects
principles which are already part of the law of the UK (the presumption
of innocence, burden and standard of proof, rights to remain silent
and against self-incrimination and restrictions on trials in absentia).
However, there is detail set out concerning those principles which
would require changes to UK law. Some of these changes are of
significance. In particular, as the EM identifies, the UK law
permits in some circumstances inferences to be drawn from non-cooperation
with a criminal investigation.
"The legal aid instrument is
a proposal for a Directive to establish rules that aim to ensure
that any persons suspected or accused of a crime, whose liberty
is being deprived at the early stage of proceedings, (including
those subject to a European Arrest Warrant (EAW)) have access
to legal aid pending any assessment and final decision as to their
eligibility for such assistance. It also aims to guarantee the
right to legal aid for persons subject to an EAW in certain other
circumstances. The Government's initial analysis is that current
UK practice already delivers the main provisions required by the
draft Directive. However, there are areas in which change would
be required, with associated financial implications. Any additional
financial burdens will need to be scrutinised closely in light
of the Government's continuing efforts to address the cost of
legal aid.
"The proposed child suspect
Directive aims to establish common rules setting minimum standards
throughout the European Union on certain matters concerning the
treatment of children who are suspected or accused in criminal
proceedings or subject to EAW proceedings. The Government considers
that the UK has appropriate safeguards for child defendants and
meets the general aims of the directive, the Directive (as detailed
in the EM) in part goes beyond the current law and practice. To
that extent, clearly the proposal would involve a review of the
Police and Criminal Evidence Act (PACE) and its associated codes,
in relation to England and Wales, and other legislative provisions
and practice."
Subsidiarity,
12.20 The Minister says that there are
no issues arising out of the Communication itself relating to
subsidiarity but each proposal needs to be considered separately
in terms of subsidiarity and that the Minister wrote to both us
and the House of Lords EU Committee discussing the matter in further
detail. The Minister says, referring to his letter of 20 January:
"the Government notes that
the Commission's explains its motivation in bringing forward these
proposals is that minimum standards throughout the EU are required
in order to support mutual trust which the Commission says it
has in mind in particular given that courts extraditing suspects
under the European Arrest Warrant will benefit from assurance
that the defendant will receive a fair trial anywhere in Europe.
That aim, if accepted, clearly cannot be achieved by Member States
acting alone and must be done at EU level. To that extent they
would comply with the principle of subsidiarity."
12.21 He adds, again referring to his
earlier letter:
"that is not to say that the
Government accepts that these measures are necessary or proportionate,
but those considerations are distinct from the principle of subsidiarity."
Fundamental Rights
12.22 The Minister says that the three
proposed Directives aim to enhance the rights of suspects or accused
persons under Article 6 of the ECHR (the right to a fair trial).
This Article 6 right encompasses (inter alia) the presumption
of innocence, the right to be informed of the nature of the case
against you, and the right of access to a lawyer. The impact of
each Directive on Article 6 is analysed in each corresponding
Explanatory Memorandum.
Impact Assessment and Financial Implications
12.23 The Commission has produced impact
assessments for each proposal and the Government is in the process
of carrying out its own assessment of potential impacts and will
provide an impacts checklist assessment on the proposed Directives
in due course.
12.24 While there are no financial implications
anticipated from the Communication itself, possible financial
implications from individual proposals in the package have been
discussed in the corresponding Explanatory Memoranda.
Timetable
12.25 According to the Minister, no
discussion or further action on the Communication is expected
but preliminary technical and expert negotiations of the package
of proposals are expected to begin in early 2014.
Conclusion
12.26 The Minister's Explanatory
Memorandum is helpful in providing some overview of the Government's
policy, particularly on the question of subsidiarity, on the current
legislative proposals in the package on procedural safeguards.
However, it lacks information on whether the Government supported
the Commission's rationale in proposing the package. It also lacks
information on whether the Government has concerns common to all
three proposals, and so gives little indication of consistent
policy on EU proposals in this field.
12.27 As the Communication itself
provides important background to the three draft Directives which
comprise the procedural rights package, it is relevant to the
opt-in debate on each. In the course of those debates we ask the
Government to say whether it agrees with the Commission's rationale
and to what extent its concerns are common to all three proposals.
12.28 The document remains under
scrutiny.
50 See HC 83-xxix (2013-14) chapter 1 (22 January 2014) Back
51
See HC 83-xxix (2013-14) chapter 2 (22 January 2014) Back
52
See HC 83-xxix (2013-14) chapter 3 (22 January 2014) Back
53
See HC 83-xxix (2013-14) chapter 2 (22 January 2014) Back
54
See HC 83-xxix (2013-14) chapter 3 (22 January 2014) Back
55
See footnotes 50-52. Back
56
See footnote 50. Back
57
See headnote. Back
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