PROCEDURAL RIGHTS DURING CRIMINAL PROCEEDINGS
(10880/05)
Letter from Rt Hon Lord Goldsmith QC,
Attorney General, Office for Criminal Justice Reform, Home Office
Thank you for your letter of 16 December 2005[170]
to Fiona Mactaggart which raised further questions on this draft
Framework Decision. In this reply I refer to an Explanatory Memorandum
which we are depositing in both Houses, together with the most
recent text of the Framework Decision, Droipen 61. Copies of both
are enclosed for convenience. I am replying for the reasons given
in paragraph 7 of the Explanatory Memorandum, in brief that the
Office for Criminal Justice Reform and not the Home Office are
now leading on criminal procedural law. Of course, Fiona, supported
by her Home Office officials, will continue to deal directly with
your committee in relation to the substantive criminal law.
The comments below in response to some specific
points you raise should be read in conjunction with comments on
the relevant articles contained in the enclosed Explanatory Memorandum.
LEGAL BASE
AND SUBSIDIARITY
The specific issue of the legal base was not
discussed at the JHA Council of 1-2 December 2005. The Council
took note of the state of play on negotiations.
The future of this draft instrument is now uncertain.
As a number of difficulties and fundamental differences of view
between Member States have become evident, the Austrian Presidency
held a discussion on the future of this proposal at the Informal
meeting of Justice and Home Affairs Ministers in Vienna, 12—14
January. At this meeting, discussion was centred on the question
of whether work on common standards in the area of procedural
rights, in support of the facilitation of judicial cooperation,
should be re-directed to focus on measures for the general safeguarding
of procedural law principles that serve to protect the fundamental
rights of the individual (proper hearing, fair trial, legal remedies).
There was some support for this position but no decision was reached
and the issue will be considered again at the Justice and Home
Affairs Council in February.
The Austrian Presidency has proposed a new approach,
and we have some sympathy with this. We took the draft instrument
as far as we could under our Presidency, but it was clear that
some Member States have real problems with the principle of any
legislation in this area. Serious difficulties had emerged over
what precisely should or should not be included within the scope
of the Framework Decision, and in particular over the issue whether
there should be limitations on certain rights in relation to terrorism
and serious organised crime.
DEFINITIONS (ARTICLE
1)
You ask whether the UK would need to revise
its position in relation to Article 35 TEU in the light of the
Pupino Judgment. We see no need to revise our position. Our assessment
is that the Pupino Judgment is unlikely to make much practical
difference, since we already carefully scrutinise Framework Decisions
to ensure that any legislative implications are fully explored.
But it does underline that framework decisions need to be taken
very seriously.
LEGAL ADVICE
(ARTICLES 2-5)
Please see comments in the Explanatory Memorandum
(paragraphs 17—21).
The latest draft of the text, in particular
the definition of "criminal proceedings" in Article
1, makes clear that the right to legal advice extends to investigations.
TRANSLATION (ARTICLES
6-8)
You mentioned in your letter the need for an
accreditation mechanism and sought assurance that appropriate
measures would be put in place in the UK to that effect. There
is already a national agreement in place in England and Wales,
whereby agencies in the Criminal Justice System are advised to
use interpreters registered with the National Register of Public
Services Interpreters (NRPSI), and this is reflected in PACE Code
C. NRPSI Registration can only be obtained by those who achieve
a recognised standard of attainment in the languages they offer,
and involves an obligation to abide by a code of conduct which
is backed up by disciplinary procedures.
You queried the reference in Article 7(1) to
the effect that a translated summary of documents may suffice
"where appropriate". Please see the comment in the Explanatory
Memorandum (paragraph 23). The current wording[171]
stresses what is actually necessary for the purposes of the fairness
of the proceedings. The Working Group was of the view—which
we share—that this provision should derive from the relevant
ECtHR case law. It was held in Kamasinski vs Austria (1989)
that the assistance of an interpreter required by Article 6(3)(e)
extends beyond provision of an interpreter at the hearing to include
translation of "all statement which it is necessary for him
to understand in order to have a fair trial"; this may not
require a written translation of every official document. It was
held in that case that "the interpretation assistance provided
should be such as to enable the defendant to have knowledge of
the case against him and to defend himself [...]", which
is the wording reflected in the current draft.
RECORDING (ARTICLE
9)
As you know, this article has been deleted at
the wish of an overwhelming majority of member states. While we
agree that the recording provisions were an important and useful
aspect of this proposal, given that the majority of Member States
were strongly opposed to the inclusion of Article 9, the UK alone
was not able to persuade the other Member States of the usefulness
of this provision.
SPECIFIC ATTENTION/RIGHT
TO [SPECIAL
MEASURES] (ARTICLE
10)
In your letter you ask whether the exceptions
which now appear bracketed in Article 10(3) of Droipen 61 are
acceptable in the case of minors. As you will be aware (see comments
on Article 2 above) the whole question of such exceptions is a
recurring and dividing one which EU Ministers will need to consider.
Fiona Mactaggart said in her letter of 24 November that in our
view some provision to allow Member States to apply exceptions
or conditions is needed in order to maintain an effective response
to serious organised cross-border crime and in particular the
threat posed by international terrorism. The wording of Article
10(3) reflects that of Article 2(2) and 12(2) for reasons of consistency.
LETTER OF
RIGHTS (ARTICLE
14) AND MONITORING
AND EVALUATION
(ARTICLES 15-16)
I refer you to the Explanatory Memorandum (paragraphs
33-35).
I shall write to you again after the Justice
and Home Affairs Council Meeting in February, to let you know
what has been decided about the future of this measure.
7 February 2006
Letter from the Chairman to Rt Hon Lord
Goldsmith QC
Thank you for your letter of 7 February 2006
which was considered by Sub-Committee E (Law and Institutions)
at its meeting of 22 March 2006.
We note that the future of the proposed Framework
Decision is now uncertain and we understand that a number of Member
States do not favour the adoption of the proposal. What is the
Government's position?
We understand that the Austrian presidency has
asked Member States to reflect on three questions regarding the
proposal. We would be grateful if you would provide a copy of
these questions.
You indicated that the matter would be discussed
at the February JHA Council and undertook to write to us following
that meeting to inform us of developments. We understand that
the issue was not, in the event, discussed at that meeting. We
would be grateful if you would advise us of the current position
and whether the proposed Framework Decision will be on the agenda
for the April JHA Council.
We have decided to hold the proposal under scrutiny
pending future developments.
23 March 2006
Letter from Rt Hon Lord Goldsmith QC to
the Chairman
I am writing to update you on developments over
this measure since I last wrote on 7 February.
I understand that this measure was not referred
to the Justice and Home Affairs Council in February as had been
indicated by the Austrian Presidency. Instead, after discussion
at a meeting of the Article 36 Committee of senior officials early
that month, the Austrian Presidency decided to refer the matter
once again to the relevant Working Group, so as to clarify what,
if any, operation need lay behind it.
At the Working Group's meeting on 6 March, Member
States agreed that there was no evidence that the Framework Decision
was in fact required to facilitate cooperation—having regard
to actual cases. However some Member States continued to hold
out for a legally binding instrument to be agreed in this area,
despite the deep divisions described in my Explanatory Memorandum
of 7 February. In the absence of consensus on the way forward,
it was decided that the measure would require further political
guidance.
In view of the apparent impasse, we think that
there may now be a need to consider non-legislative alternatives
to a Framework Decision. These could include a political declaration
and some EU-funded schemes to improve provision of, for example,
legal advice and interpreters. We are discussing such possibilities
with other Member States.
I shall write to you again when there are substantive
developments to report.
23 March 2006
Letter from the Chairman to Rt Hon Lord
Goldsmith QC
Thank you for your letter of 23 March 2006 which
was considered by Sub-Committee E (Law and Institutions).
We note what you say regarding the future of
the proposal. As we emphasised in our Report, Procedural Rights
in Criminal Proceedings, 1st Report of Session 2004-05, HL
Paper 28 (paragraphs 25 and 72), there is a need for minimum standards
in criminal proceedings, and it is important that the outcome
of the current negotiations is truly "something worthwhile".
We would need to be convinced that a "political declaration"
would satisfy this objective.
Your letter appears to have crossed with our
letter of the same date and we would be grateful for a response
to that letter.
The Committee has retained the proposal under
scrutiny.
24 April 2006
Letter from Rt Hon Lord Goldsmith QC to
the Chairman
Thank you for your letter of 23 March on this
subject, which crossed with mine of the same date.
You asked what the Government's position is
concerning adoption of this proposal. I am not sure that it is
realistic to speak of adoption at this stage. Unanimity is required
before this instrument can be accepted and there is as yet no
text which commands consensus. This reflects in part serious disagreement
by several Member States regarding the legal base for the proposal,
and deep divisions between Member States over the question of
exceptions regarding safeguards in cases of the terrorism and
serious crime. Recent discussion in the Council Article 36 Committee
of senior officials has suggested that a fresh approach may be
required to try to resolve the differences. One option would be
to consider non-legislative measures which could take forward
some of the work done by Member States in this area, and act as
a guide for future work.
You asked for a copy of three questions which
the Austrian Presidency had posed to Member States regarding this
proposal. The Austrians have in fact posed a number of questions
on this measure on several occasions. The three most recent questions
have been:
— "Could restricting the content
of the proposal to particular rights help to overcome doubts on
the legal basis and to speed up discussions?
— "Should the Framework Decision
accordingly focus on the right to defence, the right to information
on essential procedural rights and the right to free interpretation
and to free translation of relevent documents?
— "Should the abovementioned rights
and eventual exceptions to them be precisely formulated or could
it be helpful, for the sake of rapid agreement, to refer to the
principles developed in the case law of the ECtHR and/or to national
law in order to further clarify some aspects (in this case, discussion
of individual exceptions to certain rights might be unnecessary
and general standards would be developed instead)?"
These were considered by Senior Officials on
11 and 12 April when a dozen Member States (including the United
Kingdom) indicated support for practical proposals such as a political
declaration, as a way of making progress. At the time of writing,
this Framework Decision is an item on the agenda for the Justice
and Home Affairs Council meeting to be held on 27 and 28 April.
25 April 2006
Letter from the Chairman to Rt Hon Lord
Goldsmith QC
Thank you for your letter of 25 April 2006 which
was considered by Sub-Committee E (Law and Institutions).
We note that the United Kingdom has indicated
its support for a political declaration as a way of making progress.
Does this mean that the Government no longer support the legislative
proposal as currently drafted? If so, would the Government in
principle support a new legislative proposal on procedural rights
in due course?
We would be grateful if you would update the
Committee on any developments following the April JHA meeting.
As you will be aware the Commission has recently
published a Communication (A Citizens' Agenda Delivering Results
for Europe) setting out its ideas for taking matters forward under
existing Treaty powers during the period of reflection on the
Constitutional Treaty. Under the heading "Freedom, Security
and Justice" the Commission says: "The EU must act further.
For example, it needs ... to focus on respect and promotion of
fundamental rights for all people and to develop the concept of
EU citizenship". In the Commission's view the passerelle
in Article 42 TEU could bring about changes which would "improve
decision taking in the Council and allow democratic scrutiny by
the European Parliament". Do you think that the proposed
framework decision on procedural rights would have fared better
as a Community measure subject to co-decision and qualified majority
voting in the Council? Would the Government support the use of
the passerelle to take matters such as this one into the
Community pillar?
Finally, for the sake of clarity, we take this
opportunity to clear previous draft document 10880/05 from scrutiny.
The Committee has decided to hold the most recent draft of the
proposal submitted to Parliament (document 15432/05) under scrutiny.
18 May 2006
Letter from Rt Hon Lord Goldsmith QC to
the Chairman
I am sorry for the delay in responding to your
letter of 18 May, but I am writing now to update you on developments
over this measure.
It is clear that the Commission's original draft
framework decision on procedural rights has been shelved, for
reasons summarised in my last letter of 25 April 2005 on this
subject. The Austrian Presidency circulated in April an alternative,
more general, text which was discussed at informal working group
meetings in April and May and at the JHA Council on 1 June at
which I represented the UK. I enclose a copy. You may be interested
to know more about the views expressed at the JHA Council.
Despite the weaker content of the Presidency
text, a number of Member States continued to object on principle
that there is no basis in the treaties for such intrusion into
wholly domestic situations. Several Member States, including the
UK, also expressed concern about the justification for and dangers
from creating parallel and overlapping European jurisdictions
on human rights (as between the ECHR and the proposed FD). The
Austrian Presidency had only recently circulated a paper dated
5 December 2005 from the Council of Europe, which expressed serious
concerns in this regard.
Other Member States, though not opposed in principle
to any binding EU law in this area, expressed doubts that it would
be possible to overcome the long-standing problems of agreeing
basic definitions of scope and content so as to achieve the necessary
unanimity.
My view is that we need to be realistic and
to consider alternatives which can deliver practical concrete
benefits for the citizen. I therefore advised the Council of Her
Majesty's Government's clear preference for a political resolution
with a package of practical measures and funding streams to enhance
compliance with the ECHR. I was pleased to secure agreement that
such a Resolution should be discussed and developed in the Working
Group alongside the draft binding text we now have, and I enclose
a copy of a proposed text which has also been circulated to all
Member States.
A meeting of the relevant Working Group took
place on 7 July. It is now clear that certain Member States attach
great importance to securing a binding instrument in this area,
however general the wording. But as other Member States remain
strongly opposed in principle, it remains unclear that there can
be such an outcome.
The UK has made clear all along that its support
for this project is conditional on the tests of necessity, proportionality
and subsidiarity being met. In my view the most important political
test is the value added for the citizen over and above the ECHR.
You ask whether the proposed framework decision
on procedural rights would have fared better as a Community measure
subject to co-decision and qualified majority voting in the Council.
This does beg the question of what would constitute "faring
better", on which our views may not entirely coincide, However
QMV might not necessarily have speeded up what was always likely
to be a controversial measure, since the European Parliament would
have had much more influence.
So far as the passerelle in Article 42
TEU is concerned, the Government is giving careful consideration
to the proposals contained in the Commission Communication on
"Implementing The Hague Programme: the way forward".
We can see both benefits and risks in using the Article 42 TEU
passerelle to transfer elements of the Justice and. Home
Affairs agenda from the Third to the First Pillar.
14 July 2006
Annex A
RESOLUTION BY MEMBER STATES MEETING WITHIN
THE COUNCIL OF THE
EUROPEAN UNION
OF [ ] 2006
On ensuring fairness in criminal proceedings
with particular reference to access to free legal aid and
to an interpreter
Whereas:
1. It is a key objective of the Union to
provide citizens with a high level of safety within an area of
freedom, security and justice.
2. The Union's commitment to freedom, security
and justice is based on the values of human rights, democratic
institutions and the rule of law,
3. The Member States share a determination
to counter the threat to freedom and fundamental rights posed
by serious crime.
4. Co-operation between the Member States
and mutual recognition of judicial decisions in criminal matters
is needed to combat criminal organisations effectively throughout
the Union.
5. Steps should be taken to ensure that
such decisions are respected and enforced throughout the Union,
while safeguarding the fundamental rights of people in promoting
the fairness of the proceedings,
And Whereas:
6. A high standard of fundamental rights
in criminal proceedings should be maintained throughout the Union.
7. The Union's respect for fundamental rights
in criminal proceedings is rooted in the ECHR.
8. In the context of cross-border co-operation,
it is highly desirable to ensure full compliance with the requirements
of Article 6 of the ECHR especially regarding access to free legal
aid and to an interpreter for all those who need such services.
9. At this stage of the Union's development
it is expedient to take practical steps to enhance observance
of certain minimum standards.
HEREBY ENCOURAGES THE MEMBER STATES TO TAKE ACTIVE
STEPS TO
— Promote the fullest compliance with
Articles 5 and 6 of the ECHR as developed in the case law of the
ECtHR.
— Use where appropriate the [attached[172]
Annex] on standards for the provision of free legal aid and assistance
of interpreters/translations to suspects in criminal proceedings
throughout the EU.
— Develop, in cooperation with the
European Commission, targeted EU funding for improving the supply
and quality of interpreters and translators in criminal proceedings
in EU countries with identified priority needs.
— Consider extending available [peer]
evaluation mechanisms to safeguard key procedural rights in criminal
proceedings.
PRESIDENCY
PROPOSAL FOR
THE TEXT
OF AN
INSTRUMENT ON
PROCEDURAL RIGHTS
IN CRIMINAL
PROCEEDINGS
ARTICLE 1
SUBJECT MATTER
AND SCOPE
1. With a view to facilitating mutual recognition
between the Member States of the European Union and to safeguarding
the fairness of proceedings this instrument aims at establishing
minimum standards to be respected by Member States throughout
the European Union concerning certain rights of persons subject
to criminal proceedings.
2. The rights referred to in this instrument
shall be interpreted with respect for the different legal systems
and traditions of the Member States.
3. The minimum standards referred to in
this instrument shall be interpreted in full compliance with the
European Convention for the protection of human rights and fundamental
freedoms, in particular Articles 5 and 6 thereof, as developed
in the case law of the European Court of Human Rights.
4. For the purpose of this instrument, "criminal
proceedings" and "charged with a criminal offence"
shall be interpreted in accordance with national law while respecting
Article 6 of the European Convention on Human Rights as interpreted
by the European Court of Human Rights.
ARTICLE 2
RIGHT TO
INFORMATION
1. Member States shall ensure that any person
subject to criminal proceedings is provided with effective information,
in a language which he or she understands, on the nature of the
suspicion and of the fundamental procedural rights that he or
she has.
2. This information shall be delivered as
soon as these rights become relevant.
3. The information referred to in paragraph
1 shall include in particular information on the right to legal
assistance, the right to such assistance free of charge and the
right to free interpretation and translation.
ARTICLE 3[173]
RIGHT TO
LEGAL ASSISTANCE
1. Member States shall take the necessary
measures to ensure that every person charged with a criminal offence
has the right to legal assistance of his own choosing.
2. The right to legal assistance means at
least the possibility for the person concerned to have adequate
opportunities, time and facilities to communicate and consult
with a legal adviser.
3. Member States shall take the necessary
measures to ensure that any person subject to deprivation of liberty
prior to trial has the right to legal assistance in order to safeguard
the fairness of proceedings, taking into account the peculiarities
of each national system, the legal relevance attached to such
proceedings within the overall procedure, and in particular for
serious offences, the need to protect investigations.
4. Notwithstanding paragraph 1, the right
to legal assistance shall be available where the person concerned
is subject to a European Arrest Warrant or extradition request
or other surrender procedure.
ARTICLE 4
RIGHT TO
LEGAL ASSISTANCE
FREE OF
CHARGE
1. If the person subject to criminal proceedings
is partly or totally unable to meet the costs of legal assistance
as a result of his economic situation. these costs shall be borne
in whole or in part by the State according to national law when
the interests of justice so require.
2. The interests of justice referred to
in paragraph 1, shall in particular cover cases where the person
concerned:
—is subject to deprivation of liberty prior
to trial, or
—is subject to criminal proceedings which involve
a complex factual or legal situation or which may result in severe
punishment, or
—is unable to understand properly or to follow
the content or the meaning of the proceedings because of his age
or mental or physical condition, in particular in the case of
minors.
3. The economic situation of that person
shall be assessed by the competent authority of the Member State
in which the court is located.
ARTICLE 5[174]
RIGHT TO
INTERPRETATION
1. Member States shall take the necessary
measures to ensure that any person subject to criminal proceedings
or subject to a European Arrest Warrant or extradition request
or other surrender procedure is provided with the free assistance
of an interpreter when a procedural act requiring the person's
participation is taking place if he or she does not understand
or speak the language in which the act is being held.
2. The interpretation referred to in paragraph
1 shall be organised in a way that guarantees the effectiveness
of the rights of the defence.
ARTICLE 6
RIGHT TO
TRANSLATION OF
DOCUMENTS OF
THE PROCEDURE
Member States shall take the necessary measures
to ensure that a person subject to criminal proceedings or subject
to a European Arrest Warrant or extradition request or other surrender
procedure is entitled to get free translation of the documents,
which are relevant for the participation of the person concerned
in any procedural act, but in a language that he or she does not
understand, to the extent necessary to ensure the effectiveness
of the rights of defence.
170 Correspondence with Ministers, 45th Report of
Session 2005-06, HL Paper 243, pp 461-463. Back
171
[...] "necessary to enable the person subject to criminal
proceedings to have knowledge of the case against him and defend
himself". Back
172
Not attached, but to be based on principles in the draft Framework
Decision. Back
173
A recital addressing quality standards of the persons involved
in criminal proceedings, in particular lawyers, and a mechanism
for the provision of a replacement lawyer, is introduced. Back
174
A recital along the following lines is introduced: "Member
States shall guarantee the right to interpretation and to translation
of relevant documents, as laid down in Articles 5 and 6, in a
way that safeguards the fairness of proceedings, in particular
by enabling the defendant [suspect] to have knowlege of the case
against him or her and to defend himself or herself. Back
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