Ninth Report - European Scrutiny Committee Contents

20 Procedural safeguards for children suspected or accused in criminal proceedings

Committee's assessment Legally and politically important
Committee's decision(a) Not cleared from scrutiny; further information requested; (b) and (c) Cleared from scrutiny

Document details(a) Draft Directive on procedural safeguards for children suspected or accused in criminal proceedings (35646), 17633/13 + ADDs 1-3, COM(13) 822

(b) Commission Recommendation on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings (35656), 17642/13, C(13) 8178

(c) Commission Communication on procedural safeguards for suspects or accused persons (35653), 17645/13, COM(13) 820

Legal base(a)Article 82(2) TFEU; co-decision; QMV (b)Article 292 TFEU;—;— (c)—
DepartmentMinistry of Justice

Summary and Committee's conclusions

20.1 The purpose of the draft Directive, document (a), is to establish common minimum standards on the treatment of child defendants, which it defines, in criminal and European Arrest Warrant (EAW) proceedings. It comprises one of three draft Directives in the 2013 Procedural Rights Package: the other two being the draft Directive on presumption of innocence and the right to be present at trial in criminal proceedings[96] and the draft Directive on provisional legal aid for suspects and accused deprived of liberty and in EAW proceedings.[97]

20.2 The UK's JHA opt-in applies to all three Directives in the package but the Government informed us on 13 March that it did not intend to opt into document (a) (nor the other two Directives) prior to their adoption. The Government has identified that the proposed extension in document (a) of procedural safeguards to all under the age of 18 (currently under 17 in England and Wales and under 16 in Scottish law) could increase the costs of the criminal justice and policing systems in the UK as well as necessitate changes to domestic criminal legislation. This accorded with the concerns we expressed about any decision to opt into document (a) in our Thirty-eighth Report.

20.3 During the opt-in debate on 18 March, the Secretary of State for Justice (Chris Grayling) explained that although the UK was only observing at the negotiations for the other two Directives, it would be participating in the negotiations of document (a), in part, to share their knowledge and experience of the UK juvenile criminal justice system. He also stressed that although it was still unlikely that the proposal would change enough for the UK to consider a post-adoption opt-in, he did not rule out that possibility.

20.4 Document (b), the Recommendation, addresses vulnerable suspects who are not able to understand and to effectively participate in criminal proceedings (or EAW proceedings) due to age, their mental or physical condition or disabilities. The Commission has not yet legislated on categories of vulnerable defendant other than children because there is less common ground as to what those categories should be. Document (c) is an overarching Commission Communication which addresses the overall rationale for the three draft Directives forming the Procedural Rights Package.

20.5 We thank the Minister for his helpful update on the draft Directive, document (a) and look forward to hearing from him once there is progress to report from trilogue negotiations.

20.6 As the Government seems to be slightly more favourably inclined to document (a) following the changes made at the general approach compared with the views the Minister expressed during the debate in the house, we ask the Minister to give us good notice of any change in the Government position as regards a possible post adoption opt-in. We reiterate again our principal concern caused by the proposed definition of "child" as anyone below 18 years of age which remains in the General Approach text.

20.7 We now clear documents (b) and (c) as neither document contains legally-binding proposals with immediate legal, policy nor financial implications for the UK and the House had opportunity to consider them as part of the opt-in debate on 18 March.

20.8 In the meantime, document (a) remains under scrutiny.

Full details of the documents: (a) Draft Directive on procedural safeguards for children suspected or accused in criminal proceedings: (35646), 17633/13 + ADDs 1-3, COM(13) 822; (b) Commission Recommendation of 27.11.2013 on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings: (35656), 17642/13, C(13) 8178; (c) 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: (35653), 17645/13, COM(13) 820.

Background and previous scrutiny

20.9 The background to these documents, a detailed account of their provisions and the Government view on them is provided in our Thirty-second, Thirty-third and Thirty-eighth reports. To recap, document (a) comprises one of three Directives in the 2013 procedural rights package which aims to implement commitments to strengthening the "fair trial" rights of EU citizens (set out in the Procedural Rights Roadmap and the Stockholm Programme for 2010-14). The Government has opted into two previous Directives which also implement these commitments— on the right to interpretation and translation and on the right to information in criminal proceedings. However, it did not opt into the Directive on access to a lawyer in criminal and European Arrest Warrant (EAW) proceedings, although a post-adoption opt-in is still possible.

20.10 We have reported on documents (a) and (b) on two previous occasions (our Thirty-second and Thirty-eighth Reports) and document (c) in our Thirty-third Report. All documents were also considered by the House as part of the opt-in debate held on the Procedural Rights package on 18 March 2014 during which the Government confirmed its decision not to opt into document (a).

20.11 In our latest Report on document (a), we said:

    "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."

The opt-in debate on 18 March 2014

20.12 The Minister said on the question of the Government's approach to document (a):

    "We have agreed across the coalition that we will take a look at the second item in the discussions that take place. We will participate in the negotiations, but I say to the House this afternoon that I do not expect, at the end of that process, any change to the decision that we are proposing, which I hope the House will endorse this afternoon."[98]

20.13 He added later on in the debate:

    "The proposals on child defendants also present significant difficulties and I do not underestimate them. I think it is pretty unlikely that we would be able to secure changes that would make them acceptable or better. That is why we are recommending this afternoon that we should also indicate that we will not opt in. I have instructed officials that they should participate in the negotiation to see whether changes made at a later date would be advantageous to this country. I am not convinced that that will happen, but I have left it open as a possibility. That was what was agreed across the Government"[99]

20.14 He explained in the debate that part of the reason for the UK to participate in the negotiations in document (a) is to share their knowledge and experience of their own juvenile criminal justice system to the benefit of those negotiations:

    "We have told our European partners—and will do so again if the House approves the motion tonight—that we will not take part in negotiations on the first and third directives, on the presumption of innocence and on legal aid. We will say up front that we do not intend to opt in, either now or in the future. That is a decision that has been agreed across Government, and one that we do not intend to reverse. We will provide observers for the negotiations, but they will not participate in detailed negotiations. As I said, on the second directive involving children we do not intend to opt in; we will indicate that up front. We will participate in the negotiations in case, although it is unlikely, something emerges that this House may want to consider again, but it remains the Government's position that we do not expect, nor want, to have to opt into the directive, but we will sit around the table while it is negotiated."[100]

The Minister's letter of 21 July 2014

20.15 The Minister reminds us that the UK has not opted into document (a) due to significant concerns which he made clear during correspondence and the opt-in debate. However, he adds

    "we continue to engage constructively with the negotiations on this dossier to see if we can secure changes that might allow us to review our position."

20.16 He then updates us on the significant progress achieved on document (a) which was prioritised by the Greek Presidency (whereas the other two draft Directives in have not yet been discussed) — a General Approach was agreed in the JHA Council of 5-6 June. He comments:

    "The general approach text has improved noticeably compared with the original version as published by the Commission. In particular, those areas where we had concerns about proportionality (and costs and delay) have become more practical and flexible. For example, the requirement in the original proposal to audio-visually record virtually all interviews conducted with children has been amended so that it now allows some discretion to be applied and this should be done where necessary.

    "However, a number of the most problematical issues we previously identified remain in the general approach text. These include the age definition of a child (it remains defined as all under 18 years of age which we considered would have significant operational impacts on the police, there remain cross-references to Directive 2013/48/EU (on the right of access to a lawyer) so our concern that this may import that Directive (which the UK is not currently bound by) remain and the provision on detention which it limits to 'last resort' whereas UK laws are nuanced and allow detention where it is necessary (for the protection of others for example). As such, the Government does not support the general approach text."

20.17 He then provides a bullet point summary of the general approach text:

    "Article 2 (Scope) - this is now improved with a scope that does not continue once a child comes of age.

    "Article 3 (definition) - this remains a problematic provision for the Government because a child is defined as all persons below 18 years of age.

    "Article 6 (right of access to a lawyer) - the UK still considers this a problem because there remains an explicit reference to Directive 2013/48/EU in the body of the text. As this Directive does not currently bind the UK, we consider its inclusion unacceptable.

    "Articles 7 and 8 (individual assessment and medical examination) - these Articles are somewhat improved by being less burdensome and more flexible.

    "Article 9 (questioning) - this provision is improved with more ability to derogate from the obligation to record all interviews audio-visually. It remains problematic, however, in that it still may require audio-visual equipment in all Police stations.

    "Article 10 (detention) - a significant problem remains in this provision because it still states that detention of a child can only be a matter of last resort. This language remains uncertain and its practical interpretation unknown.

    "Article 14 (privacy) - there is now more flexibility in this provision. In particular, there is no longer a prohibition on holding the trial in public and the provision simply requires the protection of the child's privacy.

    "Article 18 (legal aid) - this now defers to national law in relation to legal aid provision and so shows improved flexibility.

    "Article 20 (data collection) - there have been no major changes to this Article, which still represents an unnecessary bureaucratic burden."

20.18 Referring to future trilogue discussion on the general approach text, the Minister says he will provide a further update when there is progress to report. He reiterates that the Government will:

    "seek to secure changes we need to make it acceptable but will not seek to opt in until and unless those are secured."

Previous Committee Reports

(a) and (b) Thirty-second Report HC 83-xxviii (2013-14), chapter 2 (22 January 2014); Thirty-eighth Report HC 83-xxxv (2013-14), chapter 2 (5 March 2014); (c) Thirty-third Report HC 83-xxx (2013-14), chapter 12 (29 January 2014).

96   (34642), 17621/13, COM(13) 821. Back

97   (35652), 17635/13, COM(13) 824. Back

98   HC Deb, 18 March 2014, col 725. Back

99   HC Deb, 18 March 2014, col 731. Back

100   HC Deb, 18 March 2014, col 744. Back

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Prepared 19 September 2014