Documents considered by the Committee on 5 March 2014 - European Scrutiny Committee Contents

2 Procedural safeguards for children and vulnerable persons in criminal proceedings




+ADDs 1-3

COM(13) 822




C(13) 8178

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

Legal base(a) Article 82(2)(b) TFEU; QMV; co-decision

(b) Article 292 TFEU

Basis of considerationMinisters' letters of 6 February and 26 February 2014
Previous Committee ReportHC 83-xxix (2013-14), chapter 2 (22 January 2014)
Discussion in CouncilEarly 2014
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; opt-in decision recommended for debate on the floor of the House (decision reported 22 January 2014); further information requested

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."


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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