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

21 Procedural safeguards for children

Committee's assessment Legally and politically important
Committee's decisionCleared from scrutiny; further information awaited; drawn to the attention of the Justice Committee
Document detailsProposal for a Directive on procedural safeguards for children suspected or accused in criminal proceedings
Legal baseArticle 82(2)(b)TFEU; ordinary legislative procedure; QMV
DepartmentMinistry 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 proceedings[109] and the draft Directive on provisional legal aid for suspects and accused deprived of liberty and in EAW proceedings.[110] 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, COM(13) 822.

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.[111] 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.[112]

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:

·  It 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 agreement;

·  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 UK; and

·  The Government will not, therefore, be considering a post adoption opt-in to this Directive.

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:

·  Article 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 way.

·  Article 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".

·  Article 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".

·  Article 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:

—  As 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 cause difficulties;

—  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.

·  Article 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".

·  Article 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.

·  Article 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.

·  Article 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.

·  Article 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.

·  Article 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[113] 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.

·  Article 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.

·  Article 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.

·  Article 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 hereBack

110   (35652), 17635/13, COM(13) 824. Back

111   Directive 2012/13/EU. Back

112   (32865), 11497/11 + ADDs 1-2. Back

113   In the absence of the public. Back

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