2 Procedural safeguards for children
and vulnerable persons in criminal proceedings
| (a)
(35646)
17633/13
+ADDs 1-3
COM(13) 822
(b)
(35656)
17642/13
C(13) 8178
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Draft Directive on procedural safeguards for children suspected or accused in criminal proceedings
Commission Recommendation on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings
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| Legal base | (a) Article 82(2)(b) TFEU; QMV; co-decision
(b) Article 292 TFEU
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| Department | Justice
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| Basis of consideration | Ministers' letters of 6 February and 26 February 2014
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| Previous Committee Report | HC 83-xxix (2013-14), chapter 2 (22 January 2014)
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| Discussion in Council | Early 2014
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; opt-in decision recommended for debate on the floor of the House (decision reported 22 January 2014); further information requested
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Background and previous scrutiny
2.1 A detailed account of the background to the draft
Directive and Recommendation, their provisions and the Government's
view of them is provided in our Thirty-second Report.[5]
2.2 In that Report, we asked the Secretary of State
for Justice (Chris Grayling) to:
· inform us of any "emerging subsidiarity
concerns" given the generality of the Government's subsidiarity
assessment, its acceptance that common procedural standards would
be better achieved at EU than national level and the absence of
any evidence in that assessment as to the soundness of the Commission's
impact assessment; and
· provide us with the Government's preliminary
view on the question of UK participation in the draft Directive
and the factors that would inform that eventual decision, taking
into account the following three considerations:
— the definition of a "child"
in the Directive as anyone below 18 years of age (as opposed to
under 17 in England and Wales and under 16 in Scotland);
— heightened public interest in matters
relating to the funding of legal representation, in the light
of current domestic proposals to reform legal aid and relevance
of mandatory funding of representation for "children"
as so defined; and
— the extent to which the draft Directive
is compatible with corresponding rights in the EU Charter of Fundamental
Rights, particularly "the right to a fair trial".
The Minister's letter of 6 February 2014
2.3 The Secretary of State for Justice says that:
· he has nothing to add as regards subsidiarity
concerns, except to note those previously expressed by the Committee;
and
· no decision has yet been made on the opt-in
and the Government's analysis of the proposal and its implications
is ongoing.
2.4 On the three specific areas for consideration
which we highlighted, the Minister says that:
· on the question of the definition of a
"child" in the Directive as below 18 years of age, this
would potentially give "an entire category of people (16
and 17 year-olds)" a "completely revised set of rights".
It would also mean "a revision for the obligations for the
Police" when dealing with suspects in the new category. The
Government considers that a more proportionate solution would
be to retain the current definition in each Member State;
· addressing the relevance of mandatory
legal representation for children in criminal proceedings to domestic
proposals on legal aid reform, the proposed reform will have no
impact on the current regime for legal representation of children;
and
· there is no evidence the draft Directive
compromises the right to a fair trial (Article 47 of the EU Charter
of Fundamental Rights and the corresponding right in the ECHR,
Article 6) or reduces EU citizens' access to a fair trial but
he adds that the Government remains to be convinced that it enhances
that right substantially.
2.5 On the Recommendation, the Minister provides
a more detailed view than previously (though still reminding us
of the non-legislative nature of the document). On child defendants,
he says that the document contains "fewer and less prescriptive"
obligations than the draft Directive and that current UK practice
already complies with many of its provisions. On other defendants
"who might rightly be classified as vulnerable", the
Government also supports the principle of "special treatment".
The Minister thinks it likely that current UK practice complies
with these provisions, but should the UK act on the Recommendation
(which it does not plan to do), certain provisions might prove
disproportionate (for example, recording all interviews audio-visually).
2.6 The Minister ends with a commitment to engaging
with Parliament and keeping us informed on both the current documents
and the overall procedural rights package.
Our letter of 12 February 2014
2.7 We said that we welcomed the Minister's commitment
to keeping us up-to-date with developments both on these documents
and the overall procedural rights package. We looked forward to
hearing from the Minister with the Government's view on whether
it was minded to opt into the draft Directive, in good time formally
to consider (and report on) it before the debate took place.
2.8 In advance of that debate, we asked the Minister
to provide a detailed assessment of the implications of the extension
of procedural safeguards by the proposal to a wider age category
of "child" suspects and defendants in criminal proceedings.
We said that we believed that this should be a material factor
for the Government to consider when deciding whether to opt into
the proposal, either pre- or post-adoption.
The Minister's letter of 26 February 2014
2.9 The Parliamentary Under-Secretary of State for
Justice (Mr Shailesh Vara) says that the Government:
· needs to reach its opt-in decision by
19 March and will endeavour to indicate its likely decision before
the date of the opt-in debate, but would like to hear the Committee's
own view before that;
· agrees that the wider age range is a very
important issue which will be a material part of the Government's
consideration of the opt-in or otherwise;
· considers that the changes required to
English law to accommodate a wider age range mainly would need
to address 17-18 year-olds within the Police and Criminal Evidence
Act (PACE) and its associated codes;
· notes, however, that some domestic extension
to 17 year-olds of the safeguard for 16 year-olds (and under)
to have an appropriate adult present has already taken place by
virtue of the High Court judgment last April in R (on the application
of HC) v Secretary of State for the Home Department (2013);
· estimates costs of £2.1 million would
be involved in transporting 17 year-olds, after charge, to local
authority accommodation for overnight detention (as required by
Article 3 of the Directive) before their transportation to court
the next day. This would be instead of the current practice of
detention in police stations (section 38 of PACE);
· offers a breakdown of this estimate by
explaining that an additional 5,200 places in Local Authority
accommodation would be required each year in England and Wales
at a cost of approximately £395 per day per 17 year-old suspect;
· provides an indication of the further
costs of providing secure accommodation for 17 year-olds in a
minority of cases — the number of secure beds currently
available is around 280 at an estimated daily cost of £580
per day;
· stresses the "strictly provisional
and illustrative nature of these estimates" which will need
to be reviewed to ensure that they are robust;
· highlights that the consent of parents
or guardians, not independent consent (which currently suffices
as "appropriate consent" under section 65 of PACE) would
be needed for 17 year-olds for all police procedures in Part V
of PACE. These include "searches to ascertain identity, intimate
searches, x-rays and ultrasounds, fingerprinting, impressions
of footwear, intimate samples, non-intimate samples and photographing
of suspects";
· acknowledges that the Directive applies
beyond the police procedures to the Court procedures but clarifies
that the Directive would not affect criminal sentencing
and "offender management" of juveniles as under 18s
are already classified as "children" for these purposes.
Although the Government does not anticipate any significant implications
from the different definition of child alone in the Directive,
following its adoption, it would need "to consider whether
detailed adjustments might need to be made to legislation
as part of the process of transposing the Directive into domestic
law";
· indicates that the Directive, in requiring
all those under 18 to be treated the same, could have an even
greater impact in Scotland where:
— the current definition of child, in
most cases (excepting those subject to a Compulsory Supervision
Order) is someone under 16; and
— where the Criminal Justice (Scotland)
Bill proposes to give greater discretion to 16 and 17 year-olds
as to who, if anyone, should be informed of their arrest; and
· considers that Northern Ireland would
seem to be less affected by the Directive, since the definition
of "arrested juvenile" set out in PACE (NI) was amended
in 2007 to mean anyone under 18 years of age and corresponding
measures have already been taken to provide a pool of trained
appropriate adults required by this change (the Northern Ireland
Appropriate Adult Scheme).
2.10 The Minister concludes his letter by saying
that:
"There are a number of other areas where
potential change has been identified but those seem relatively
minor and concern legislation for which other Ministers are responsible
and we are consulting them on what those implications might be.
I do not expect those to be significant to the consideration in
this context but I will advise separately if that turns out not
to be the case."
Conclusion
2.11 We note that, with the exception of Northern
Ireland, the Government's assessment indicates that the proposed
extension of criminal procedural safeguards in the draft Directive
to all under the age of 18 would increase the costs of the criminal
justice and policing systems in the UK by a minimum of £2.1
million. We also consider that legislation concerning the vulnerability
and need for protection of a certain category of defendant is
best left to national policy and discretion. Both of these considerations
are relevant to the Government's opt in decision, but the latter
on its own leads us to the view that UK participation in the proposal,
in its current form, would be disadvantageous.
2.12 We wrote to the Government on 12 February,
recognising that on this occasion there were links between the
three proposals in the procedural rights package which meant they
usefully could be debated together. We requested the Minister
to ensure that three hours, rather than one and a half hours,
be allowed for such a joint opt-in debate. We still await confirmation
of this.
2.13 We look forward to the Government clarifying
its own view of participation in the current draft Directive in
the motion for that debate, and remind the Minister that we should
receive the draft motion setting out the Government's approach
to the opt-in in time to consider it at our weekly meeting before
the debate takes place. In the meantime we retain both current
documents under scrutiny.
5 HC 83-xxix (2013-14), chapter 2 (22 January 2014). Back
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