1st REPORT: PROCEDURAL RIGHTS IN CRIMINAL
PROCEEDINGS
Letter from Fiona Mactaggart MP, Parliamentary
Under-Secretary of State, Home Office to the Chairman
I am writing in response to the European Union
Committee's 1st Report of Session 2004-05 on Procedural Rights
in Criminal Proceedings, as published on 7 February 2005. Please
accept my sincere apologies for the delay in responding.
I note that the Committee still has concerns
regarding this proposal, both in general and on particular articles.
It is important to stress that negotiations on this measure are
continuing. An Explanatory Memorandum on the most recent text
is being prepared and will be deposited for scrutiny in accordance
with scrutiny timetables. I can assure the Committee that their
concerns will be looked at during further consideration of this
proposal. In addition we have undertaken a consultation process
on the Framework Decision which should help shape our strategy.
A summary of the responses to the consultation paper is being
prepared and will be published upon completion.
I trust that the enclosed response satisfactorily
provides an outline of the Government's views on the important
issues raised by the Committee.
20 July 2005
The Home Office's Response
GENERAL
1. The Government notes the Committee's
request to ensure a worthwhile outcome from the negotiations for
this Framework Decision. As the Committee's report records, the
Framework Decision is subject to unanimity. The outcome will therefore
be a matter for negotiation and will need to take account of the
views of all the Member States: no one Member State can dictate
the contents. However, Her Majesty's Government is committed to
using its period of Presidency to focus on the substantive issues
and to make genuine progress wherever possible.
LEGAL BASE
2. The Government accepts that arguments
can be made for and against the legal base proposed for this instrument.
The Government has made clear its view that the Framework Decision
is justifiable only insofar as its various provisions can be shown
to be needed to improve judicial co-operation and believes that
this requirement provides a significant limitation on the scope
of Union power in this area. The Government ask the Committee
to take account of this limitation and the principle of subsidiarity
in the context of possible wider ambitions for the Framework Decision,
as referred to in paragraphs 200-202 of its report.
THE HAGUE
PROGRAMME
3. As stated in the Government's response
to the Committee's report on the Hague Programme, we agree that
the right balance needs to be found between protecting people
in the exercise of their fundamental rights and ensuring that
they live in a secure and just Europe. Improving security is vital
and without it freedom and justice could not flourish, but this
should not be at the expense of fundamental rights and the rule
of law. The Government welcomed the Commission's Green Paper on
Bail and believes that a legislative initiative would be worthwhile.
SIGNIFICANT MATTERS
NOT INCLUDED
IN THE
PROPOSAL
4. The Government agrees that any proposals
on the right to silence and other procedural law issues will be
difficult and looks to the Commission to begin discussion on these
issues.
DETAILED POINTS
5. The Government is grateful to the Committee
for its detailed consideration of the text of the draft decision,
which it will take into careful account as the negotiation proceeds.
The Committee may wish to be aware that the United Kingdom has,
in its new capacity as Chair of the Working Group, issued a consolidated
version of the text, incorporating the various amendments which
appear to be required so as to clarify the situation and help
identify the issues. A copy of this text has been deposited with
the Scrutiny Committees and an Explanatory Memorandum is being
prepared in the usual way. We enclose a further copy of that text
(not printed) and comment upon it below in the context of paragraphs
208-240 of the Committee's report. The text should not be considered
as more than exploratory at this stage but it appears to offer
a convenient reference point for consideration of progress within
the Group.
[208] The new text now draws directly upon
key elements of the Strasbourg jurisprudence regarding the meaning
of "criminal proceedings" but goes on to offer a non-exhaustive
illustrative list of certain proceedings which should be regarded
as within the scope of the definition for the purposes of the
Framework Decision. As the Committee's report observes, the underlying
issues are not straightforward and it remains to be seen how far
if at all this text will command consensus within the Group. Account
will also need to be taken of the implications of the recent ruling
by the ECJ in Case C-105/05: Pupino regarding national
interpretation of Framework Decisions.
[209] It will be seen that the original
text has been amended so it now applies to people subject to any
other proceedings mentioned in Article 2. Again, it is fair to
say that the debate on this issue is by no means settled and the
Government will bear the Committee's views in mind as matters
develop.
[210] Article 1 now makes it clear that
the scope is intended to include the European Arrest Warrant,
extradition proceedings or other surrender procedures. The Government
will keep under careful consideration the Committee's observation
about possible implications for the legal base of this instrument
arising from such inclusions.
[211-212] The Government agrees that further
clarification would be desirable. The current text would allow
Member States to disapply the Framework Decision as regards minor
offences. This proposition has aroused considerable concern within
the Working Group and will be the subject of further discussion
and clarification. The Government will have the Committee's views
in mind during the negotiations.
[213] The Working Group will need to consider
whether the text should be better aligned with fundamental rights
as set out in the ECHR and will consider proposed amendments to
the text.
[214-217] The Government agrees that further
clarification would be desirable. As regards qualifications, the
original text stated that only lawyers qualified in accordance
with Directive 98/5/EC may give legal advice. The new text provides
an alternative category, namely those duly qualified under applicable
national provisions and we are considering if this is satisfactory
having regard to national policy and practice. Turning to arrangements
for "ineffective" legal advice, the new text again provides
an alternative option, that people have the right to request an
alternative lawyer if the legal advice "does not meet the
necessary professional standard". The Government does not
claim that this wording wholly resolves the difficulties identified
by the Committee but believes that the issues for debate are now
clearer.
[218] The Government notes the Committee's
suggestion and considers that the Framework Decision should be
interpreted compatibly with the ECJ's jurisprudence on fundamental
rights, see for example Case C-155/79: Australian Mining and
Smelting Europe Ltd v EC Commission [1982]. The Government
will consider if further clarification is needed in discussions
within the Working Group.
[219-220] There appears at present to be
no consensus within the Working Group which would support enlarging
the Framework Decision in the ways suggested by the Committee
but the Government will keep the proposals in mind as the negotiation
proceeds.
[221] The Government will provide more precise
estimates of costs once it is clearer what new burdens the Framework
Decision will entail. For example, costs would be likely to be
significantly affected by the inclusion of prescriptive recording
and monitoring arrangements, or if requirements regarding translation
went beyond what the UK currently provides. The Government wishes
to reassure the Committee that it has the question of bureaucratic
burdens and costs very much in mind and is of the firm view that
the value of the Framework Decision provisions must be weighed
very carefully against them.
[222] The Government thanks the Committee
for this suggestion, which it will seek to take up with the Commission.
[223] The Government agrees with the Committee
and there is a strong likelihood of lively debate regarding this
proposed rule.
[224-227] The Government notes the Committee's
support for recording police interviews and confirms that it has
supported the proposal during negotiations. The debate continues,
despite various deletions to the text, but it is fair to record
that a number of member states have expressed very strong reservations
about adopting such rules at the present time.
[228-229] Article 11(2) is deleted in the
new text: the provision has been moved to a separate Article,
Article 12bis which applies to all detained people. As regards
Article 11(3), the original text provided a discretionary right
to have a third person present during questioning. In the new
text this has been expanded and now provides for a right for minors
and mentally ill people to be questioned in the presence of a
parent/guardian and to have that person informed of the prosecution
and time of questioning. The rights may be limited where the interests
of justice or of the person require it.
[230-231] As regards Article 12, the original
text provided an unrestricted right to communicate with a third
party. In the new text there has been an amendment so that if
the person detained is a minor the parents or guardians must be
immediately informed of the detention. The Government welcomes
the proposal to subject the rules proposed in Articles 12 and
13 to certain exceptions to safeguard the investigation of serious
offending, consistent with the approach under the Police and Criminal
Evidence Act 1984, in accordance with the ECHR.
[232-237] It will be seen that a number
of changes have been made to Article 14. The original text provided
for a standard translation of the written notification of rights
translated into all community languages, drawn up centrally and
issued to the authorities. The new text provides a far greater
Commission involvement and is more prescriptive. It provides that
the form shall be sent by the Member State to the Commission and
then translated by the Commission into the official languages
before being sent back to the Member States. The original text
provides that both the suspect and the law enforcement officer
sign the letter of rights. The new text provides that the suspect
signs a receipt for the letter of rights. The Committee will see
from the footnotes to Article 14 that a number of Member States
are likely to press for further changes to the text. The Government
will bear the Committee's views in mind as the negotiation proceeds.
The Government asks the Committee to note that
the Working Group has not yet discussed the contents of the proposed
letter. The Government will bear in mind the ECBA's suggestion.
[238-240] The Working Group decided to postpone
discussion of these Articles. A majority of the Group is unhappy
with the proposals and believes that they raise questions regarding
subsidiarity and legal base as well as practicability and expense.
20 July 2005
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