Select Committee on European Union Fortieth Report


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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