CHAPTER 2: Background: Pre-Lisbon Developments |
9. The original European Economic Community had
no express criminal law function. It was not until the coming
into force of the Maastricht Treaty in 1994 that an express competence
for action in this field was conferred upon the EU, by introducing
a special framework for action in relation to 'Justice and Home
Affairs', the so-called 'third pillar' of the EU, which brought
previous informal co-operation between Member States under the
auspices of the EU. However, to reflect the sensitivity of EU
action in this area, this competence remained essentially intergovernmental
in character, largely limited to promoting co-operation between
police and judicial authorities, exercisable only by the Member
States in the Council acting unanimously, and with only a limited
role for the other EU institutions.
10. The Treaty of Amsterdam, which came into
force in May 1999, incorporated some parts of the third pillar
into the framework of the main European Community Treaty. However
criminal justice remained within a third pillar, renamed 'Provisions
on police and judicial co-operation in criminal matters'.
11. Under the pre-Lisbon Treaties, the European
Council agreed a series of five year programmes, covering justice
and home affairs, including criminal law. In the first of these,
the Tampere Programme of 1999, the European Council expressed
a determination to develop the Union as "an area of freedom,
security and justice" by making full use of the possibilities
offered by the Treaty of Amsterdam and endorsed "the principle
of mutual recognition which ... should become the cornerstone
of judicial co-operation in ... criminal matters within the Union".
We were reminded by the Vice-President of the Commission, responsible
for Justice, Fundamental Rights and Citizenship, Viviane Reding,
that the system of mutual recognition was based on the model of
the system that subsists between the UK's different jurisdictions
and strongly advocated by the UK.
The subsequent Hague Programme of 1994 and the current Stockholm
Programme of 2009 continued this focus on mutual recognition as
the foundation for an area of freedom, security and justice.
12. Mutual recognition can be contrasted with
the traditional international system of mutual assistance which
requires a judge of the requesting state to route a request for
assistance through the central authorities of that state to the
executive authorities of the requested state who then arrange
for the request to be actioned by their criminal enforcement authorities.
That system of mutual assistance is more cumbersome and can be
subject to an extra layer of decision making by the executive
13. Professor Steve Peers, of the Human
Rights Centre and the Law School of the University of Essex, recalled
that the original EU programme for mutual recognition in criminal
matters of 2000 had
set out a gradual process for developing mutual recognition, but
that a sense of urgency resulted from the terrorist attacks of
11 September 2001. This hastened the adoption of the EAW which
would otherwise have been a far more limited instrument and which
set the template for the adoption of the other mutual recognition
instruments which followed.
14. The legal instruments in force promoting
mutual recognition in various criminal matters and their dates
are listed in Box 1.
Mutual recognition legislation
- 2002: on the European Arrest Warrant.
- 2003: on the execution of orders freezing property or evidence.
- 2005: on mutual recognition of financial penalties.
- 2006: on mutual recognition of confiscation orders.
- 2008: on the taking into account of previous convictions in other Member States in the course of new criminal proceedings.
- 2008: on mutual recognition of custodial sentences, thus facilitating the transfer of prisoners to serve their sentences in their home states.
- 2008: on mutual recognition of probation decisions and other non-custodial sanctions, thus facilitating such sentences being carried out in the offender's home state.
- 2008: on the European evidence warrant for the purposes of obtaining objects, documents and data for use as evidence in criminal proceedings.
- 2009: on mutual recognition of decisions rendered in the absence of the person concerned at the trial. This amends previous mutual recognition legislation to give a greater scope for refusal in cases where a person has been tried in their absence.
- 2009: on the mutual recognition of pre-trial bail decisions. This facilitates the supervision of such decisions in the defendant's home state.
15. These measures principally facilitate the
work of law enforcement authorities. However, it is clearly also
in the interests of victims of cross-border crime that the perpetrators
are brought to justice expeditiously. Of direct benefit to defendants
are the mutual recognition of custodial sentences, non-custodial
sentences and bail decisions, all of which facilitate the person
concerned returning to his or her home Member State, family or
job, whilst awaiting trial or to serve a sentence.
16. Mutual recognition legislation, although
in many cases only operational for a relatively short period,
has generally been regarded as beneficial. There has been the
longest experience with the EAW. Vice-President Reding identified
this as a very successful mutual recognition tool, although it
has shortcomings, in particular because it has been used to request
the extradition of persons for disproportionately minor offences.
This may be because of a lack of discretion afforded to prosecutors
in some Member States. She was not however envisaging amendment,
but seeking to prevent this abuse through guidelines contained
in the handbook which complements the legislation and enhanced
Sir Scott Baker's Review of the United Kingdom's Extradition
Arrangements reported that the EAW has improved the scheme of
extradition between Member States and that, broadly speaking,
it operates satisfactorily.
The Council of Bars and Law Societies of Europe (CCBE) described
enhanced judicial co-operation and mutual recognition more generally
as "a real benefit" as most clearly evidenced by an
increasing willingness to accede to requests for surrender under
the EAW. Professor Spencer
of the Law Faculty of the University of Cambridge considered that,
although some of the legislation was "ineptly done",
mutual recognition was a practical necessity whether we liked
it or not and that the EAW had brought a significant practical
benefit for policemen and prosecutors.
The Bar Council commented favourably on the effect of the 2005
legislation on mutual recognition of fines and the 2008 legislation
on taking account of convictions, and believed that the effect
of some of the less high profile measures had still to be fully
felt in the English Courts.
17. The Tampere, Hague and Stockholm Programmes
recognised the need for mutual recognition measures to be complemented
by some further legislation on common minimum standards in criminal
procedure. Most of our witnesses accepted that there is now an
imbalance between mutual recognition and fundamental rights
although it is difficult to gauge the extent to which this imbalance
impairs mutual recognition. The Government expressed a belief
that "in principle" minimum defence rights in certain
areas and minimum guarantees for victims of crime in criminal
proceedings can facilitate judicial co-operation and mutual recognition.
The CCBE believed a lack of defence rights in some Member States
would be likely, if not corrected, to undermine the confidence
of judicial systems of other Member States.
18. Vice-President Reding emphasised that for
mutual recognition to operate it is necessary to build bridges
to reinforce mutual trust between judicial systems.
This is reflected in the Stockholm Programme which both identifies
mutual trust between the decision makers in the different Member
States as the basis for efficient co-operation and also identifies
a need for it to be strengthened.
19. Professor Spencer regarded the issue
of mutual trust as being wider: "What is done in trans-border
cases has to be acceptable to public opinion, not just prosecutors
and people who work the system. If there are dysfunctions in the
criminal justice systems of some other Member States like terribly
overcrowded prisons, disastrous waits in custody before trial,
inefficient translation, incompetent legal assistance and so on,
they are not likely to be sorted out just by people getting to
know each other ... Unless these matters are addressed, public
opinion will not accept the too ready functioning of cross-border
criminal justice ..."
20. In 2004 the Commission made an omnibus proposal
for legislation protecting defendants' rights
which was the subject of our Report "Procedural Rights
in Criminal Proceedings".
We supported this initiative, emphasising the need to put in place
minimum standards which are observed in order to ease the strain
on the confidence and trust of Member States in each other's criminal
justice systems. Its lack of progress was the subject of our subsequent
Reports "Breaking the deadlock: what future for EU procedural
and "Procedural rights in EU criminal proceedingsan
in which we deplored the watering down of the Commission's proposal
in subsequent negotiation and concluded that there was a strong
case for setting out in legislation rights which go beyond those
in the European Convention on Human Rights (ECHR). Ultimately
this proposal fell through lack of support from Member States,
including the UK.
21. However in 2009, just before the Lisbon Treaty
was due to come into force, the Council adopted a "Roadmap
for strengthening procedural rights of suspected or accused persons
in criminal proceedings".
This set out six measures to be pursued as separate proposals.
Box 2 outlines the measures adopted, or in train, under this initiative.
The Roadmap of measures concerning criminal
- Measure A: translation and interpretation. This has now been adopted as Directive 2010/64.
- Measure B: information to be provided in the course of criminal proceedings. The Council and the European Parliament have agreed a text for a new directive.
- Measure C: legal advice and legal aid. A Commission proposal for a directive on the right of access to a lawyer and on the right to communicate upon arrest is still under negotiation in the Council. The Commission has yet to bring forward a proposal on legal aid, but it features in its work programme for 2012.
- Measure D: communication with relatives, employers and consular authorities. Some provisions are now incorporated into the proposal on right of access to a lawyer.
- Measure E: special safeguards for suspected or accused persons who are vulnerable. The Commission has yet to bring forward a proposal, but it features in its work programme for 2012.
- Measure F: a Green Paper to examine appropriate measures concerning the period of pre-trial detention. This was issued by the Commission in June 2011. At the same time it has also sought information on the effect of different prison conditions.
22. In contrast to the progress of legislation
concerning defendants' rights, early progress was made in relation
to the position of victims. This is less problematic as it poses
less of a threat to law enforcement and attracts greater sympathy
from the public. Nevertheless protection of victims' rights can
be important in creating the general public acceptance of cross-border
law enforcement raised by Professor Spencer.
23. Legislation was adopted in 2001 and 2004,
first on the standing of victims in criminal proceedings, and
then relating to compensation to crime victims. The former sets
out rights for victims in very general terms, whilst the latter
is limited to facilitating access to state criminal injury compensation
schemes in the case of cross-border crime.
In addition three measures were adopted which included general
requirements for the protection and assistance of victims, concerning
terrorism, human trafficking and the sexual exploitation of children,
although the latter two have been recently replaced by legislation
providing more detailed provisions, which we have supported.
24. All the legislation in this area requires
transposition (or implementation) into national law. Generally
the EU legislation itself specifies that this must be done within
two or three years of the date of adoption. The date for transposition
of all the legislation adopted before the Lisbon Treaty came into
force has now passed, except for the 2009 measure for recognition
of bail decisions. Nevertheless the record of Member States in
transposing EU law into national law has been patchy. The Bar
Council noted that the EAW is the only existing measure to be
implemented by all Member States,
although even in this case the Commission regretted, as recently
as April 2011, that 12 Member States have not amended their legislation
implementing the EAW despite having been recommended to do so
in previous Council and Commission reports; in the case of six
of these Member States as long ago as 2007.
The Commission has continued to draw attention to difficulties
over implementation of other legislation. The UK is not immune
from criticism on this score.
25. The legislation that has been adopted
for mutual recognition in criminal matters has been subject to
some justified criticism, and its implementation by Member States
has been poor. Nevertheless mutual recognition is a practical
necessity in order to combat cross-border crime and has already
demonstrated its potential benefit as an effective tool to fight
cross-border crime. However for that potential to be fully realised
there must be confidence, on the part of the judicial authorities
and also of the general public, that giving effect to judicial
decisions made in other Member States will not result in injustice
4 Q 54. Back
OJ C 12/02, 15.1.2001 p10. Back
Q 18. Back
All these measures are subject to Protocol 36 to the Lisbon Treaty
which enables the UK to cease to apply them. We look at this Protocol
in more detail in Chapter 7. Back
Council Framework Decision 2002/584. Back
Council Framework Decision 2003/577. Back
Council Framework Decision 2005/214. Back
Council Framework Decision 2006/783. Back
Council Framework Decision 2008/675. Back
Council Framework Decision 2008/909. Back
Council Framework Decision 2008/947. Back
Council Framework Decision 2008/978. Back
Council Framework Decision 2009/299. Back
Council Framework Decision 2009/829. Back
QQ 52 and 53. Back
Available at http://www.homeoffice.gov.uk/publications/police/operational-policing/extradition-review?view=Binary.
See para 11.1. Back
CCBE, para 24. Back
QQ 2, 7 and 17. Back
Bar Council, paras 1.3.1 and 1.3.3. Back
Q 2 (Professors Spencer and Peers); Q 31 (CCBE); Q 54 (Vice-President
Reding); Professor Mitsilegas, para 7; Fair Trials International,
para 1; Baroness Ludford, para 3; CCBE, para 18. Back
Ministry of Justice, para 40. Back
CCBE, para 28. Back
Q 46. Back
Paragraphs 1.2.1. and 3.2. Back
Q 8. Back
COM (2004) 328. Back
1st Report of Session 2004-05. Back
2nd Report of Session 2006-07. Back
9th Report of Session 2008-09. Back
Council Resolution of 30 November 2009, OJ C 295, 4.12.2009, p
COM(2010) 392. Back
COM(2011) 326. Back
COM(2011) 777. Back
COM(2011) 327. Back
Council Framework Decision 2001/220 and Directive 2004/80. The
latter has an internal market legal basis. Back
Council Framework Decisions 2002/475 (terrorism), 2002/629 (human
trafficking) and 2004/68 (child abuse); the latter two replaced
by Directives 2011/36 and 2011/92. Back
Bar Council, para 1.5.1. Back
Commission Communication on the implementation since 2007 of the
EAW-COM (2011) 175, Section 3. The Member States concerned are
Belgium, Cyprus, Denmark, Germany, Greece, Spain, Finland, Italy,
Malta, the Netherlands, Sweden and the UK. Back
See for example COM(2004) 54 and COM(2009) 166, relating to the
2001 legislation on the standing of victims, COM(2010) 428 on
the 2006 measure for mutual recognition of confiscation orders
and COM(2011) 175 on the EAW. All note a UK failure to notify
implementation fully within the time limit set by the legislation.
An external study of mutual recognition funded by the Commission
and published in 2008 indicated that the UK had been late in transposing
the Framework Directives on freezing orders and financial penalties:
at page 93. Back