The European Union's Policy on Criminal Procedure - European Union Committee Contents

The European Union's Policy on Criminal Procedure


1.  EU citizens have the right to move and reside freely within the EU. An increasingly mobile citizenry leads inevitably to more crimes having a cross-border dimension—because they have been committed in another Member State, the perpetrator has fled to another Member State, or the victim is from another Member State. EU citizens are increasingly finding themselves engaged with the criminal justice system of another Member State with which they are unfamiliar. This can be particularly traumatic for British citizens because our criminal justice systems provide a high degree of protection.

2.  To date the EU legislative effort has prioritised law enforcement. The challenge has been to achieve this in a framework of national criminal law systems which differ fundamentally. To meet this challenge the focus of the EU effort has been to facilitate mutual recognition, whereby decisions made by the judicial authorities of one Member State are given effect by the judicial authorities of another with minimum formality and only very limited grounds for refusal.

3.  Even establishing mutual recognition has been a slow process. However, the events of 11 September 2001 gave impetus to the adoption of the first, and still the most high profile and controversial, EU mutual recognition measure, the European Arrest Warrant (EAW). This was designed to ensure quick extradition between Member States for serious offences.

4.  The process begun by the EAW has since developed into a body of legislation requiring mutual recognition of a wide range of judicial decisions. However, the implementation of this legislation, and the EAW in particular, has highlighted a deficit in the protection of the rights of those accused or suspected of offences (termed "defendants" in this Report for ease of reference). Judges faced with a request for extradition may be increasingly reluctant to return a defendant if they believe his or her human rights would be violated, for example, by excessively long pre-trial detention, poor detention conditions, or if the consequent trial would be unfair because of inadequate translation or inadequate legal representation.

5.  The agreement of EU criminal procedure measures, in the form of minimum rules intended to protect defendants and victims, applicable across the EU, has proved very difficult as such measures have an even greater potential for disrupting national criminal law systems than measures for mutual recognition. However, the changes to EU competence following the Lisbon Treaty have given impetus to EU legislation in this area and there is now in train the implementation of two packages of EU measures set out in "Roadmaps" dealing respectively with the rights of defendants and victims. These Roadmaps, and the individual proposals so far brought forward by the Commission, have been the subject of scrutiny by the Justice and Institutions Sub-Committee. In principle we have welcomed the establishment of minimum criminal procedure rules, but we have highlighted problems in incorporating such rules into the UK's criminal law systems. This problem is particularly acute with a proposal on the right of access to a lawyer.[2] With the implementation of the Roadmaps now well underway the EU institutions have their eyes on further development of EU criminal procedure legislation.

6.  In the light of these developments the Justice and Institutions Sub-Committee, whose members are listed at Appendix 1, initiated an inquiry to take stock of the development of EU activity in this area and to take an overview of the EU's policy in the area of criminal procedure. A call for evidence was published on 3 November 2011. This is at Appendix 3. Written evidence was received from 12 persons and organisations. Oral evidence was taken from seven witnesses specifically for this inquiry and we were also able to draw on the evidence of four witnesses who provided oral evidence for the purposes of our ongoing scrutiny of the access to a lawyer proposal.[3] The persons and bodies who provided evidence are listed at Appendix 2. We are most grateful to all those who gave us written and oral evidence.

7.  This Report starts by providing a summary of how EU law on mutual recognition and criminal procedure has developed; and examines in more detail various limitations to EU competence. We consider the potential added value of EU legislation in this area and weigh it against the disadvantage of its potential adverse impact on national criminal law systems. Finally we look at future developments in this area.

8.  We recommend this Report for debate.

2   COM (2011) 326. Back

3   In the footnotes that follow their evidence is marked with **. Back

previous page contents next page

© Parliamentary copyright 2012