EU Afghanistan Cooperation Agreement on Partnership and Development - European Scrutiny Contents

20 The presumption of innocence and EU law

Committee's assessment Legally and politically important
Committee's decisionCleared from scrutiny; drawn to the attention of the Justice Committee
Document detailsProposal for a Directive on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings
Legal baseArticle 82(2)(b) TFEU; QMV; ordinary legislative procedure
DepartmentMinistry of Justice
Document Numbers(35642), 17621/13 + ADDs 1-3; COM(13) 821

Summary and Committee's conclusions

20.1 The proposed Directive aims to set common minimum standards throughout the European Union in respect of the right of those suspected or accused of crimes to be presumed innocent until proven guilty and their right to be present at the trial.

20.2 The previous Committee issued a reasoned opinion against this proposal and the previous Government did not opt into the proposal at the negotiation stage.

20.3 The Minister (Dominic Raab) now writes to report agreement between the European Parliament and the Council, paving the way to agreement by the Council on 4 December subject to linguistic revisions. He also informs the Committee that the text still contains elements of concern which led the previous Government to decide not to opt in at the initial negotiation stage. This Government will not, therefore be considering opting into the Directive once it has been adopted.

20.4 We are grateful for the clear and full update from the Minister. We set out below the key issues arising in the trilogue discussions and the issues of concern to the Government.

20.5 We now clear this matter and bring it to the attention of the Justice Committee.

Full details of the documents: Proposal for a Directive on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings: (35642), 17621/13 + ADDs 1-3; COM(13) 821.

The Minister's letter of 29 January 2016

20.6 The Minister apologises for the delay in updating the Committee. He details the key changes to the text during trilogue negotiations and the main issues of concern for the UK:

·  "Article 2 (Scope) — the European Parliament sought to widen the scope of the Directive beyond criminal proceedings to other 'similar proceedings' and for it to apply to legal persons. Member States strongly opposed this, and the final text is limited to criminal proceedings and only applies to natural persons.

·  Article 4 (Public references to guilt) — following trilogue negotiations the final text, on the insistence of the European Parliament, contains an additional article on the presentation of suspects and accused persons, which aims to ensure that suspects or accused are not presented as being guilty through the use of physical restraints, though the Council ensured that this was caveated by the need for security and to prevent absconding.

The UK has no difficulty in the general principle set out in Article 4 that public authorities ought to refrain from referring to suspects or accused persons as if they were convicted. There is law that prevents such statements. In England and Wales, and in Scotland, it would be contempt to include such statements in a publication when the criminal proceedings are active, where such statements create a substantial risk that the course of justice will be seriously impeded or prejudiced. The previous Government was concerned that the original proposal would have over-ridden the ability of Parliamentarians to make statements they considered were necessary for the public good. As with the General Approach, the final text exempts public authorities from the obligation when making statements in the public interest. The definition of public authority in Recital 17 includes ministers and public officials and also makes it clear the provision is intended to be without prejudice to national law regarding immunity.

·  Article 6 (Burden of proof) — the main change during trilogue negotiations was the removal, on the insistence of the European Parliament, of the clause in Article 6 that enabled Member States to reverse the burden of proof, so it now lies always with the prosecutor. The UK's concerns with this article therefore remain. While the burden of proof in the UK usually lies on the prosecution to prove the case beyond reasonable doubt in criminal cases, sometimes an accused person bears the burden of proving a defence on the balance of probabilities (for example, the defence of insanity). As the Directive prohibits such reversals of the burden of proof, this would have a significant impact on the administration of justice in the UK.

·  Article 7 (Right to remain silent and right not to incriminate oneself) — the final text still states that the exercise of the right to remain silent and of the right not to incriminate oneself may not be used against a suspect or accused person. This was a very strong demand of the European Parliament, and the Commission likewise has in a declaration said that it interprets that no derogation is allowed from this principle. While recital 28 says that the rule should be without prejudice to national rules concerning the assessment of evidence by courts or judges, the operative text and position of the institutions is clear and the Government's concern with this article, therefore, remains. In England and Wales, in certain circumstances it is possible for the court to draw adverse inferences from an accused's silence in pre-trial questioning or at the trial (ss. 34-38 of the Criminal Justice and Public Order Act 1994). Those circumstances include a failure by the accused to mention certain facts when questioned which are later relied on in his or her defence. There are tight controls on when such inferences can be drawn. In particular, a defendant may not be convicted on the basis of inference alone. Article 7(5) of the Directive would prohibit any such inferences.

·  Article 8 (Right to be present at the trial) — there were no significant changes to this article, despite the European Parliament seeking to limit trials in absentia. The article aims to set out the conditions under which trials would be allowed in the absence of the suspect or accused person, and clarifies the circumstances in which the accused would have the right to a new trial. The Government's concern that the adverse effect this article could have on the efficiency of our courts still stands. In England and Wales, and in Scotland, the accused has the right to be present at trial. However, magistrates' courts and summary courts in Scotland may proceed in the absence of the accused if the accused fails to attend. Only if the accused makes a statutory declaration to the effect that he or she did not know about proceedings is there then a right to a re-trial before the magistrates' court. Whilst the Directive seems to permit some derogation from the right to be present at one's trial, the rules are different from those applicable in the UK, and Article 9 on right to a new trial establishes a right to re-trial or another legal remedy if the Directive's terms are not met; for example, when the accused has absconded.

·  Article 10 (Remedies) — an additional provision has been added that when assessing statements made by suspects or accused persons, or of evidence obtained in breach of their right to remain silent or their right not to incriminate themselves, court and judges should respect the rights of the defence and the fairness of the proceedings. This reflects a compromise with the European Parliament, which demanded that such evidence should be inadmissible in court.

·  Article 11 (Data collection) — the Government remains concerned that the requirement set out in this article represents a disproportionate burden on Member States without an obvious benefit."

20.7 The Minister concludes by indicating that:

    "Other changes to the remaining articles that were made during trilogue negotiations include the shortening of the time Member States are allowed for transposition from 36 months to 24 months, and a requirement for the Commission to submit a report on the implementation of the Directive three years after the deadline for transposition."

Previous Committee Reports

Thirty-ninth Report HC 219-xxxvii (2014-15), chapter 15, (24 March 2015); Thirty-first Report HC 83-xxvii (2013-14), chapter 1, (22 January 2014).

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Prepared 2 March 2016