Select Committee on European Union Fortieth Report


Letter from the Chairman to Rt Hon Lord Goldsmith QC, Attorney General, Office for Criminal Justice Reform, Home Office

  Sub-Committee E (Law and Institutions) considered this Green Paper at its meeting of 21 June 2006.

  We note that the Government show little enthusiasm for EU legislation on the presumption of innocence. In your EM you say that you do not consider that a Commission initiative in this area is necessary or desirable. You refer to major differences in the common law and civil law systems. What are your particular concerns here? It would be helpful if you could provide an example of one such major difference and the complications which might ensue in any harmonisation attempt in the EU.

  The Committee also queries whether certain reactions to the Green Paper may be symptomatic of a more general problem. We are aware that issues have arised over legal base. It seems probable some Member States would oppose any future Framework Decision on grounds of lack of competence. In our view, careful thought should be given to the wisdom of pursuing action in an area where opposition from at least one Member State is almost certain (we understand that Austria and Slovakia have voiced concerns in respect of current and future legislation aimed at harmonisation of national criminal law procedures). A number of other dossiers are, or are likely to be, similarly affected by challenges to competence, including the Procedural Rights Framework Decision, the Eurobail proposal and any future proposals on the Admissibility of Evidence and Conflicts of Jurisdiction and ne bis in idem.

  The Committee recalls the commitments made by Member States in the Hague Programme, but on important matters such as Procedural Rights little or no progress is being made. Rather than pursuing negotiations on individual dossiers with little prospect of success, Member States and EU institutions may wish to reconsider more generally the extent of judicial cooperation in criminal matters they now wish to have. Unless use if made of Article 42 TEU passerelle to move to QMV, it is becoming apparent that little progress will be made in this area without some new agreement at the highest level. We understand that the Commission has proposed a review of progress made in implementing the Hague Programme and a thorough evaluation of results. Are Member States still committed to the Hague Programme? Do you agree that a comprehensive evaluation should now take place and that a revised programme should, if necessary, be agreed?

  We note that the deadline for responses to the Green Paper was 9 June 2006. We would be grateful for your explanation of why your EM was not received by this House until 13 June 2006. We also look forward to receiving a copy of your response to the Commission.

  We have decided to hold this Green Paper under scrutiny.

22 June 2006

Letter from Rt Hon Lord Goldsmith QC to the Chairman

  Thank you for your letter of 22 June. I note you have held the Green Paper under scrutiny.

  You asked about our particular concerns over this Green Paper in relation to the differences between the common law and civil law systems. I had in mind the fact that UK criminal justice systems are essentially adversarial, while most other European criminal justice systems are basically inquisitorial. Though the differences can be overstated, I think it fair to say that in common law systems, the functions of investigating, prosecuting, testing and challenging the evidence, reaching conclusions and adjudicating are performed by a number of different bodies. In inquisitorial systems, on the other hand, the state usually has the primary role both as fact-finding prosecutor, and as impartial and independent judge actively involved in determining the truth. Also, our proceedings at trial are primarily oral, whereas in inquisitorial systems the "dossier" of written evidence plays a central role, and oral evidence is supplementary.

  In ECHR terms what is important is that the trial process as a whole should be fair, whatever our system. One problem with attempts to harmonise some elements of the trial process on a pan-EU basis is that such measures will play into different systems in different ways, with perverse and possibly unforeseen consequences.

  I note your comments regarding the wisdom of pursuing action on a number of Commission dossiers which are likely to be opposed by some Member States on grounds of lack of competence. We are considering the general position on such measures in the light of proposals now being made by the Commission, and we will be writing to you about this separately.

  As to the timing of my response, the Green Paper did not set a firm deadline for responses but requested them "preferably by 9 June". This allowed very little time for the amount of consultation and consideration needed in formulating our response, and in the event we are only now finalising it. We will send you a copy once it has been lodged with the Commission.

  I share your surprise that there was a delay between my signing of the Explanatory Memorandum on 7 June and its arrival with you on 13 June. I am afraid that this appears to have been the result of an oversight while staff who normally handle these documents were absent from the office.

8 July 2006

Lettter from Rt Hon Lord Goldsmith QC to the Chairman

  Further to my letter of 8 July on this subject, l am writing now to enclose the UK's response to the Green Paper on Presumption of Innocence.

  We look forward to receiving any further comments the Committee may have.

12 July 2006

Annex A


  Factual responses setting out the position in the jurisdictions of the United Kingdom concerning the Green Paper on the Presumption of Innocence are given below.

  The United Kingdom questions if it is appropriate to bring forward this initiative at the present time. Paragraph 2 of section 1.1 of the Green Paper indicates that the original intention was to pursue evidence-based safeguards, of which this is a part, following the work on procedural safeguards. In fact the draft Framework Decision on procedural safeguards has run into very considerable difficulties. The text proposed initially by the Commission has effectively been abandoned and a much more general text is currently being considered by Member States. Even so, several Member States contend that there is no basis in the Treaty for any such legislation at Union level. Against that background, the prospects for negotiating to a successful conclusion a Framework Decision on the even more challenging issue of evidence-based safeguards appear extremely poor, the more so as it has not been demonstrated that there is an objective need for this exercise.

  In the circumstances, we suggest that substantive work on this topic would not be a good use of scarce resources.

  It should be noted that there are three jurisdictions in the United Kingdom: England and Wales, Northern Ireland, and Scotland. On most—but not all—issues the law in Northern Ireland is the same as in England and Wales. The response below to each question first sets out the position in England and Wales, and then the position in Scotland. Northern Ireland will only be mentioned where the position differs from England and Wales.

  The law in England and Wales alone is very complicated in this area. We consider that our domestic arrangements in all three jurisdictions guarantee the rights of individuals in accordance with the ECHR. However, a legislative approach designed to harmonise systems across EU Member States would be likely to require significant changes to our primary legislation.


  1.  Do you agree with the list of what constitutes the presumption of innocence given here? Are there any other aspects not covered?

  This seems a broadly accurate account of the position in all UK jurisdictions. However the presumption of innocence is displaced by proof beyond reasonable doubt, so we would include the qualification "reasonable" when indicating that any doubt should benefit the accused.

  In England and Wales the presumption of innocence has been adjusted in certain situations, for example to allow inferences to be drawn (in certain tightly defined circumstances) from a defendant's silence, and removal of the right not to produce evidence in matters of suspected serious or complex fraud—see below.

It should also be noted that there is a variety of non-court disposals in UK jurisdictions, such as fines, mediation and social work diversion, which may be used when there is sufficient evidence to prosecute the person concerned; but it is always open to him or her to refuse to accept any of these alternatives and proceed to be tried for the offence.

2.  Are there any special measures in your Member State during the pre-trial stage in order to safeguard the presumption of innocence?

  Any special safeguards of this kind need to be considered and understood in the context of the criminal justice system in question as a whole. Publicity may impact on the fairness of a trial, especially where a person is to be tried by a lay jury. Care must therefore be taken to ensure that the reporting of allegations is not such as to colour the approach of potential jurors. The media in England and Wales are therefore constrained in their reporting of early stages of criminal proceedings and may in certain circumstances be specifically ordered by the court not to report proceedings.

  In Scotland, similar restrictions on media reporting apply and there is also the important safeguard of corroboration, which is required in two respects. Firstly, there must be evidence from at least two sources that the alleged offence was committed, and if so, evidence from at least two sources that it was the accused who committed the offence in question.

3.  (a)  In what circumstances is it acceptable for the burden of proof to be reserved or altered in some way?

  In England and Wales, the principles governing reverse burdens of proof in the context of Article 6 ECHR were summarised by Lord Bingham of Cornhill in Sheldrake v Director of Public Prosecutions [2005] 1 A.C. 264 at para. 21:

  "21.  From this body of authority certain principles may be derived. The overriding concern is that a trial should be fair, and the presumption of innocence is a fundamental right directed to that end. The Convention does not outlaw presumptions of fact or law but requires that these should be kept within reasonable limits and should not be arbitrary. It is open to states to define the constituent elements of a criminal offence, excluding the requirement of mens rea. But the substance and effect of any presumption adverse to a defendant must be examined and must be reasonable. Relevant to any judgment on reasonableness or proportionality will be the opportunity given to the defendant to rebut the presumption, maintenance of the rights of the defence, flexibility in the application of the presumption, retention by the court of a power to assess the evidence, the importance of what is at stake and the difficulty which a prosecutor may face in the absence of a presumption. Security concerns do not absolve member states from their duty to observe basic standards of fairness. The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb but on examination of all the facts and circumstances of the particular provision as applied in the particular case".

  There are a few strictly defined exceptions to the general rule where the "reverse" onus is upon the accused to prove some matter the effect of which is that he is not guilty of the offence charged. There is one reverse onus at common law, and that is the general defence of insanity, and in all other cases reverse onuses are statutory, imposed by express words or necessary implication.

  In some cases legislation may provide that an accused is obliged to prove an element of his defence (or disprove at least one element of the offence). This is commonly referred to as a "legal burden". In other cases, an accused may be subject to a lesser burden to present some evidence of the defence and it is then the duty of the prosecution to disprove the existence of that defence. This is most commonly referred to as the defendant's, "evidential burden". If the imposition of a legal burden on the accused involves a breach of Article 6 ECHR, in accordance with the principles set out above in Sheldrake, a Court may use Section 3 of the Human Rights Act 1998 to "read down" the provision so that if an evidential burden is satisfied, then the legal burden is also satisfied.

  Scotland: The three areas listed in paragraph 2.3 of the Green Paper represent areas where the burden of proof may be modified. As far as strict liability offences and the reversal of the burden of proof are concerned, these apply to offences at the lower end of the scale in Scotland. In relation to the recovery of assets, the standard of proof is often on the balance of probabilities.

3.  (b)  Have you experienced cross border co-operation situations in which the burden of proof created a problem?

  We are not aware of any situation in any UK jurisdiction where issues in relation to the burden of proof have created problems in cross border situations.

4.  (a)  How is the right to silence protected in your Member State?

  In England and Wales, broadly along the lines described in the Green Paper. Under the Police and Criminal Evidence Act 1984 the police, when questioning a suspect, are obliged to inform him of his right to remain silent.

  However under the Criminal Justice and Public Order Act 1994, if an accused fails to mention, when being questioned by the police, a fact which is later relied on in his defence in criminal proceedings, the jury may draw an adverse inference. Under Section 35 of the same Act a jury may also draw an adverse inference in certain circumstances where an accused fails to testify or answer questions at trial.

  As a further elaboration of the right to silence, Section 2 of the Criminal Justice Act 1987 effectively limits the right to silence and the right not to produce evidence in matters of suspected serious or complex fraud. These compulsory powers are an integral tool in the successful investigation and prosecution of serious and complex fraud. Naturally there are procedural safeguards in place to ensure these powers are compliant with the ECHR. Firstly, a person may refuse to answer questions if they have a reasonable excuse. Secondly these powers cannot normally be used in evidence against the maker at trial, and thirdly no person can be compelled to provide information or documents which he would be entitled to refuse to disclose or produce on the grounds of legal professional privilege.

  In Scotland currently the only information a suspect has to provide is name and address. (Legislation currently in the Scottish Parliament, the Police, Public Order and Criminal Justice Bill, due to come into force in August 2006, proposes a minor addition to include date of birth and information relating to nationality.)

4.  (b)  Is there any difference in cross border situations?

  In England and Wales, there is no difference in cross-border situations if cross-border cooperation is the issue. If we were seeking to gather evidence outside the UK the suspect would have the same rights as in the UK. In cases of serious or complex fraud, if another country uses compulsory powers similar to our own to obtain evidence, this does not of itself pose a problem for its admissibility provided equivalent safeguards are in place. Similarly the powers available under Section 2 of the CJA 1987 outlined above will be used to interview or obtain documents for other EU Member States that have requested mutual legal assistance.

  There are no differences in Scotland with regard to cross border situations.

4.  (c)  To what extent are legal persons protected by the right?

  In all three jurisdictions there is no differentiation between natural and legal persons, ie both are subject to the same procedural safeguards.

5.  (a)  How is the right against self-incrimination protected in your Member State?

  In England and Wales, the privilege against self-incrimination is well established and applies in respect of all criminality, from those offences which are summary offences triable only before magistrates (eg parking fines) up to those which are triable only on indictment (eg murder). It is recognised and given effect to by legislation. Parliament has however identified a number of areas where it is considered that the public interest in the proper administration of justice, and in particular in ensuring that all relevant material is before the court, outweighs the rationale for the privilege, and has legislated to provide for this. The content of the privilege against self-incrimination was subject to detailed scrutiny in Brown v Stott [2003] 1 AC 681 and Attorney General's Reference no. 7 of 2000 [2001] 1 WLR 1879, and in accordance with the decision in Saunders v United Kingdom it has been held that the privilege against self-incrimination in criminal proceedings does not apply to pre-existing documents.

  There are however some limitations on the privilege. For example, the criminal courts have powers to ensure that the investigating authorities can secure documents from third parties. The fact that compliance with an order to produce documents by the person ordered may involve him in incriminating himself is not per se a reason for not making the order. See also the answer to Question 4 (a) above on Section 2 of the Criminal Justice Act 1987.

  In Scotland, in addition to the position explained in 4(a) above, individuals are generally not required to speak to police or produce any other evidence eg documents. But this is without prejudice to the options available to the police to apply through a prosecutor to a judge for a search warrant. However, the prosecutor will only present the application and the judge will only approve it if they think it is merited in the specific case.

  It should also be noted that in both jurisdictions, there are legal consequences for a suspect if they refuse to supply intimate body samples. Suspects may also be required to take part in an identity parade.

  Furthermore, both jurisdictions have made it a statutory offence for a driver to fail to respond to a question from the police as to who was driving his vehicle at a particular time. In the case of Brown v Stott 2003 IAC 681 the ECtHR found that this is not a breach of the accused's right not to incriminate himself.

5.  (b)  Is there any difference in cross border situations?

  In all three UK jurisdictions there is no difference with regard to cross-border situations.

5.  (c)  To what extent are legal persons protected by the right?

  In all three jurisdictions legal persons can generally be said to enjoy the same protections as natural persons.

6.  (a)  Are in absentia proceedings possible in your jurisdiction?

  In England and Wales, Magistrates' Courts are empowered in certain circumstances to proceed to trial and sentence in the absence of the accused, but the powers are used sparingly. Where a trial in absence takes place, the defendant can seek to overturn the verdict within 21 days, seek a rehearing, or appeal to the Crown Court. It is also possible for the Crown Court to proceed with trial in the absence of the accused, provided the accused has been present to enter a plea. If the accused then voluntarily absents himself from the trial, it is in the court's discretion whether to proceed in his absence. This discretion must be exercised with great care and only in exceptional cases, and in practice trials in the absence of the accused in the Crown Court are very rare.

  The discretion to proceed with a trial in absence must be exercised so as to be compatible with Article 6 ECHR. It is also necessary to have regard to the judgment in R v Jones [2002] UKHL 5. The Government is considering legislating to allow the imposition of a custodial sentence in the accused's absence in certain circumstances.

  In Scotland in absentia proceedings are also available in limited circumstances. There is provision to allow for certain summary proceedings to go ahead in the accused's absence where he/she is charged with a statutory offence for which a sentence of imprisonment cannot be imposed in the first instance, or where there is specific statutory provision allowing proceedings in absence. In both cases the court must be satisfied that the accused has had adequate notice of the hearing at which he/she has failed to appear. Counsel or a solicitor may represent an absent accused if the court is satisfied that they have appropriate authority.

  There are also provisions in Scottish law for trial in absence in certain circumstances in solemn (serious) cases so that a trial can continue in the accused's absence where he/she fails to appear during the course of the trial, and evidence has been led which substantially implicates guilt. The court may allow the trial to continue if it believes that it is in the interest of justice. A solicitor will be appointed to represent the accused in this situation if no other solicitor has authority to act. There are also provisions, which are seldom used, but which allow for a person who misconducts him/herself in court to be removed and for the trial to continue in his/her absence.

  The Scottish Parliament is currently considering legislation to extend substantially the provisions relating to trial in absence in summary cases.

6.  (b)  Do these proceedings raise specific problems with regard to the presumption of innocence, in particular in cross border situations?

  In all three jurisdictions, such proceedings raise no issues with regard to the presumption of innocence in cross border cases. Standards and methods of proof are the same as in situations where the accused is present. Cross-border cases involving in absentia proceedings are very rare, and the only cross-border situation in which they might be raised would be extradition from another state to the UK after conviction in absence. Our limited experience is that this has not presented any difficulty.

7.  Does legislation in your Member State lay down special rules for terrorist offences? If so, please describe the provisions inasmuch as they relate to the presumption of innocence. Does this regime apply to other offences?

  In England, Wales and Scotland. as a general rule, terrorist offences are dealt with using the ordinary criminal law and within the confines of the ordinary criminal justice system. A person who is accused of a terrorist offence enjoys the protection of the presumption of innocence. However, there are some legislative provisions in relation to terrorist offences that are relevant to the presumption of innocence.

  The Terrorism Act 2000 contains a number of specific offences and investigative powers for the purposes of terrorist investigations. These include provisions for the disclosure of information and drawing of adverse inferences in certain circumstances provided for within the legislation. There are appropriate safeguards within the legislation which ensure that the presumption of innocence is protected.

  In Northern Ireland, special provision exists for the trial of certain offences by a judge sitting alone rather than with a jury. In such trials the presumption of innocence is unaffected.

8.  At what point does the presumption of innocence cease in your Member State?

  In all three jurisdictions, the presumption of innocence ceases either when the accused pleads guilty or is found guilty. If appeal proceedings are upheld and the conviction is quashed the person's "not guilty" status is reinstated.

9.  (a)  Are you aware of problems in a cross border context linked to the presumption of innocence other than those referred to above?

(b)  To what extent are these problems related to differences in approach in other jurisdictions?

(c)  Could EU proposals add value in this area? If so, in what way?

  We are not aware of any problems in any UK jurisdiction linked to the presumption of innocence. Nor are we aware of difficulties with cross-border cooperation arising from this issue. We do not accept that any of the areas discussed in response to the preceding questions present any problems.

  In consequence, we do not think that there would be anything to be gained from EU intervention in this aspect of criminal procedure.

Letter from the Chairman to Rt Hon Lord Goldsmith QC

  Thank you for your letter of 12 July which has been considered by Sub-Committee E (Law and Institutions) and for the copy of the Government's Response to the Commission's Green Paper.

  We are grateful to you for the additional information and in particular for outlining your concerns in more detail. We agree that difficulties may arise as a result of the differences between the two main systems in Europe (civil law and common law) and we would expect there to be careful consideration of these issues. We recall that Member States are already under a legal obligation to guarantee the presumption of innocence under the European Convention on Human Rights, and that the case-law of the Strasbourg Court has developed the content of this right. In these circumstances, we are hesitant to agree immediately that it would be dangerous to seek some level of harmonisation in the EU.

  This said however, we do consider that the proposal raises subsidiarity concerns. As with other dossiers (eg the Green Paper on conflicts of jurisdiction and ne bis in idem) the Commission has yet to produce evidence that problems exist and make a case for EU action. Should any proposal be adopted by the Commission following this consultation, this is a matter to which we will pay particular attention.

  We note that you will write separately to us on the matter of Member States' commitment to the Hague Programme. We look forward to receiving your response to the questions we raised in due course.

  We have decided to clear the Green Paper from scrutiny.

25 July 2006

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