Letter from the Rt Hon The Lord Goldsmith
QC to Lord Grenfell, Chairman of the European Union Committee
I am as promised following up my appearance
before your Committee on 25 October. As you know, for some reason
the Committee had not received the latest text of the draft FD
which had been sent and emailed on 20 October. This made it difficult
for me to refer in detail to provisions which risked legal confusion
and uncertainty, so I promised to send the Committee three examples.
I begin with Article 1, which fails satisfactorily
to define the scope of the Framework Decision. It offers a double
definition, national law and the ECHR. Neither we nor the Council
of Europe are clear what either or both would mean at EU level.
The fact of the matter is that the draft is a fudge, intended
to overcome past difficulties over agreeing a single definition
of criminal proceedings. This reflects the diversity of criminal
justice systems across Europe. For example, the definition under
German law appears to exclude administrative proceedings; the
French definition includes some administrative proceedings; our
law says that proceedings for failure to pay for a TV licence
are criminal. Yet all three are compatible with the ECHR.
Secondly, the provisions on the right to legal
assistance (Articles 3 and 4) are formulated in a way which implies
a different approach to the ECHR. Recital 12 of the Preamble insists
that the provisions on legal assistance do not impose obligations
going further than the ECHR. In fact the scope of application
does precisely that, while at the same time omitting an important
safeguard. As the Council of Europe pointed out in a presentation
to the EU Working Group negotiating the text, legal assistance
free of charge is not a distinct free-standing right under the
Convention. Article 6(3)(c) ECHR states that legal assistance
must be provided free of charge if the accused lacks sufficient
means to pay for it and when the interests of justice require.
But the Framework Decision treats this as a self-standing right.
In addition, the combined effect of paragraphs 3 and 4 of Article
3 seems to imply that a person who is subject either "to
deprivation of liberty prior to trial" or "to a European
Arrest Warrant or Extradition request or other surrender procedure",
shall be entitled to legal assistance as from the moment of his/her
deprivation of liberty. Yet according to Strasbourg case-law,
Article 6 of the ECHR applies only to proceedings which determine
a criminal charge within the autonomous meaning of this provision.
Last but not least, Article 2 of the Framework
Decision of the current proposal, as drafted, would seem to confer
Article 6 ECHR rights in relation to European Arrest Warrant proceedings.
Yet Article 6 is not applicable to such proceedings. Article 5
proceedings are instituted for the purpose of challenging the
lawfulness of the detention as such (habeas corpus), including
in an extradition context, but are different from those governed
by Article 6 of the ECHR, which deal with the merits of an accusation.
They pursue a different purpose and are therefore subject to different
standards under the Convention. The European Arrest Warrant proceedings
are designed to be speedy and simple—without bureaucratic
requirements such as the full translation of evidential documents.
We should not confuse the trial itself with the proceedings before
the trial.
15 November 2006
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