21 Procedural safeguards for children
||Legally and politically important|
|Committee's decision||Cleared from scrutiny; further information awaited; drawn to the attention of the Justice Committee
|Document details||Proposal for a Directive on procedural safeguards for children suspected or accused in criminal proceedings
|Legal base||Article 82(2)(b)TFEU; ordinary legislative procedure; QMV
|Department||Ministry of Justice
|Document Numbers||(35646), 17633/13 + ADDs 1-3, COM(13) 822
Summary and Committee's conclusions
21.1 The purpose of this proposal is to establish common minimum
standards on the treatment of child suspects and defendants, defined
as under 18, 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
the draft Directive on provisional legal aid for suspects and
accused deprived of liberty and in EAW proceedings.
Chapter 20 of this Report includes the Government update on the
"presumption of innocence" proposal.
21.2 The UK's JHA opt-in applies to all three proposed
Directives in the package but the previous Government decided
in March 2014 not to opt into this proposal nor the other two
prior to their adoption. In particular, the Government identified
that the proposed extension 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.
21.3 Despite its decision not to opt in, the previous
Government told our predecessors that it would be participating
in the negotiations of this proposal, in part, to share knowledge
and experience of the UK juvenile criminal justice system. However,
it considered it unlikely that the proposal would change enough
for the UK to consider a post-adoption opt-in, though it remained
a possibility. The Government now writes that following the conclusion
of trilogues and agreement of the text "at officials' level"
in December, there will be no post-adoption opt-in as unacceptable
elements remain in the text.
21.4 We thank the Minister for his letter. We
share his regret that an earlier update had not been provided
to us, despite our repeated requests. We understand that the UK's
non-participation in the proposal means that it is not subject
to our scrutiny reserve as the UK will not have a vote on the
adoption of the measure. But that does not diminish the interest
of the Committee nor, more widely, the House in this proposal,
particularly when the possibility of a post adoption-opt in was
still in play. It is not helpful that the Committee has learnt
of developments on this significant proposal some weeks after
they have been reported in the press and some months after the
last Government update in March 2015.
21.5 Given that the Government will not now be
considering a post adoption opt-in on this proposal, we now clear
it from scrutiny but draw it and this chapter to the attention
of the Justice Committee. However, we look forward to receiving
the Minister's final letter informing us when the proposed Directive
has been adopted.
Full details of
the documents: Proposal
for a Directive on procedural safeguards for children suspected
or accused in criminal proceedings: (35646), 17633/13 + ADDs 1-3,
Background and previous scrutiny
21.6 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, 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 notified us in October 2015 that it would not be exercising
a post-adoption opt in relation to the Directive on access to
a lawyer in criminal and European Arrest Warrant (EAW) proceedings.
The Minister's letter of 29 January 2016
21.7 The Parliamentary Under-Secretary of State for
Justice (Dominic Raab) apologises for not being able to write
to us earlier. He then summarises developments which occurred
before the New Year:
was a priority of the Luxembourg Presidency to complete negotiations
on this Directive before the end of their term and they devoted
a considerable number of expert level meetings to reaching an
· In December,
trilogue negotiations with the European Parliament (EP) concluded
and the text was agreed at official level;
· The text may
now be subject to some technical linguistic revisions before being
formally agreed at a future Council meeting;
· The UK engaged
constructively with the negotiations to see if it could secure
changes that might allow it to review its position;
· The UK's concerns
were not resolved by the final text, which includes a number of
requirements which would cause operational difficulties for the
· The Government
will not, therefore, be considering a post adoption opt-in to
21.8 He then sets out the key changes to the text,
during trilogues, highlighting outstanding areas of concern for
the UK. In summary, he says:
2 (scope): The EP sought
to widen the proposal's scope to include young adults up to the
age of 21, where they were under 18 at the time of the offence.
The UK and other Member States opposed this. The final text reflects
the compromise achieved: it requires Member States to apply the
proposed Directive to those who reach the age of 18 whilst the
criminal proceedings are ongoing, but giving Member States discretion
as to whether it should apply once the individual reaches 21.
The Minister comments that this compromise remains unattractive
to the UK because domestic arrangements already cater for young
people who turn 18 during criminal court proceedings in a different
3 (definitions): The proposed Directive
defines a child as under the age of 18. The Police and Criminal
Act (PACE) currently treats 17-year-olds the same way as adults
for some purposes; however, the Government has committed to amending
the law so that all 17-year-olds are treated as children for all
purposes under PACE. However, the Minister says that the definition
in the proposed Directive "would still cause difficulty for
UK practice, as there are different arrangements in Scotland,
which include protections for all under 18s while enabling a greater
level of self-determination for 16- and 17-year-olds".
4 (Right to Information): The proposed
Directive extends the rights afforded to suspects and accused
persons in Directive 2012/13/EU on the right to information in
criminal proceedings, to which the UK opted in and has recently
implemented. The Minister says that meeting the additional requirements
of this article would amount to a "disproportionate cost
burden for the UK".
6 (Assistance by a lawyer): This article
requires Member States to apply Directive 2013/48/EU on access
to a lawyer, and makes a number of further and detailed provisions
based on that Directive, supported by the EP. It is problematic
for the UK for the following reasons:
the UK has not opted into the Access to a Lawyer Directive, cross-references
to it and how that measure will be interpreted in practice could
The final text goes beyond the Access
to a Lawyer Directive by requiring Member States to "ensure"
the presence of a lawyer, which is understood to mean that the
State must provide a lawyer or facilitate access. Exceptions to
this rule were therefore added on the grounds of the seriousness
of the offence and complexity of the case, but the proposal also
provides that no custodial sentence may be imposed on a child,
unless assisted by a lawyer. The Minister concludes: "Since
there is no clause allowing a child to decline having a lawyer,
the article provides de facto for compulsory representation".
In the UK, measures are already in place to ensure the under
18s can be represented by a lawyer in criminal proceedings: for
example, where an appropriate adult believes it would be in the
best interests of the young person for a solicitor to attend them
at a police station, even if they do not want legal advice. Where
legal aid is requested, under 18 year olds are extremely unlikely
not to receive legal aid to fund legal representation.
7 (Right to an individual assessment):
The final text attempts to balance the concern of the Council
that the early stage of proceedings should not be delayed by carrying
out assessments designed to determine any precautionary and ongoing
measures beneficial for the "child" and the EP's focus
on limiting any derogations. It requires individual assessment
to take place before an indictment, unless it is in the best interests
of the child to proceed with the indictment and the assessment
is available at the beginning of pre-trial hearings before the
court. The Minister, referring to the preparation of assessments
for pre-sentencing reports in England and Wales, considers that:
"In England and Wales, assessments are prepared for a pre-sentencing
report, and the Government does not believe that a compelling
case has been made for requiring these ordinarily to be completed
earlier in the process in every case, which would place a considerable
resource burden on Youth Offending Teams and local authorities".
8 (Right to a Medical Examination): The
possibility of declining to conduct medical assessments in some
limited circumstances, including where the request has been made
in order to delay the criminal proceedings has not been included
in the final text. Although in England and Wales medical assessments
are conducted when a youth is detained in custody by the criminal
courts, the Government does not want these requirements imposed
at EU level. They may also create a disproportionate cost burden
for the UK and unnecessarily delay criminal process.
9 (audio visual recording of questioning):
This article retains the possibility to derogate from the obligation
to record all interviews audio-visually, but the Government is
opposed because it would still require audio-visual equipment
to be available in all police stations to record any questioning
of child suspects or defendants.
10 (limitation of deprivation of liberty):
The final text states that detention of a child can only be a
matter of "last resort". The Minister describes relevant
UK laws as "nuanced", allowing detention where it is
necessary (for example, for the purposes of securing or preserving
evidence or the protection of others). He adds there is also uncertainty
as to how the requirement should be interpreted in practice.
12 (specific treatment in the case of deprivation of liberty):
On treatment of children in detention the EP negotiated extra
requirements, including that Member States should be able to accommodate
those who have reached the age of 18 separately from other detained
adults in some circumstances.
14 (protection of privacy): Flexibility
which the Council wanted in opposing a prohibition on public hearings
was partially maintained in the final text. This requires Member
States at a minimum to make private hearings
possible. The Government remains concerned that "ensuring"
the privacy of children "may fetter judicial discretion".
In England and Wales youth reporting restrictions may be varied
or lifted by the court if the "interests of justice"
and "public interest" tests are met. This reflects
the need to balance the welfare of the young defendant with public
interest in an open justice system.
15 (right of the child to be accompanied by the holder of parental
responsibility during the proceedings).
The final text extends this to a right for children to be accompanied
during stages of the proceedings other than court hearings, subject
to some limited conditions.
16 (right of children to appear in person at, and participate
in, their trial). The final text includes
a cross-reference to the recently-adopted Presumption of Innocence
Directive which the UK opposes as it did not opt into that Directive.
20 (data collection). This Government
considers that this imposes a disproportionate burden on Member
States without an obvious benefit.
Previous Committee Reports
Thirty-ninth Report HC 219-xxxvii (2014-15), chapter
15 (24 March 2015); Ninth Report HC 219-ix (2014-15), chapter
20 (3 September 2014);Thirty-eighth Report HC 83-xxxv (2013-14),
chapter 2 (5 March 2014); Thirty-second Report HC 83-xxviii (2013-14),
chapter 2 (22 January 2014).
109 (35642), 17621/13, COM(13) 821. The House of Commons
issued a Reasoned Opinion on the proposed Directive on presumption
of innocence on 10 February 2014, accessible here. Back
(35652), 17635/13, COM(13) 824. Back
Directive 2012/13/EU. Back
(32865), 11497/11 + ADDs 1-2. Back
In the absence of the public. Back