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

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.[4] 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 authorities.

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[5] 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.[6]

14.  The legal instruments in force promoting mutual recognition in various criminal matters and their dates are listed in Box 1.[7]


Mutual recognition legislation
  • 2002: on the European Arrest Warrant.[8]
  • 2003: on the execution of orders freezing property or evidence.[9]
  • 2005: on mutual recognition of financial penalties.[10]
  • 2006: on mutual recognition of confiscation orders.[11]
  • 2008: on the taking into account of previous convictions in other Member States in the course of new criminal proceedings.[12]
  • 2008: on mutual recognition of custodial sentences,[13] 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.[14]
  • 2008: on the European evidence warrant for the purposes of obtaining objects, documents and data for use as evidence in criminal proceedings.[15]
  • 2009: on mutual recognition of decisions rendered in the absence of the person concerned at the trial.[16] 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.[17]

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 judicial training.[18] 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.[19] 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.[20] 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.[21] 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.[22]

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[23] 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.[24] 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.[25]

18.  Vice-President Reding emphasised that for mutual recognition to operate it is necessary to build bridges to reinforce mutual trust between judicial systems.[26] 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.[27]

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 ..."[28]

20.  In 2004 the Commission made an omnibus proposal for legislation protecting defendants' rights[29] which was the subject of our Report "Procedural Rights in Criminal Proceedings".[30] 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 rights?"[31] and "Procedural rights in EU criminal proceedings—an update"[32] 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".[33] 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 procedural rights

  • 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.[34]
  • 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.[35] The Commission has yet to bring forward a proposal on legal aid, but it features in its work programme for 2012.[36]
  • 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.[37]

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.[38] 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.[39]

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,[40] 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.[41] The Commission has continued to draw attention to difficulties over implementation of other legislation. The UK is not immune from criticism on this score.[42]

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 or unfairness.

4   Q 54. Back

5   OJ C 12/02, 15.1.2001 p10. Back

6   Q 18. Back

7   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

8   Council Framework Decision 2002/584. Back

9   Council Framework Decision 2003/577. Back

10   Council Framework Decision 2005/214. Back

11   Council Framework Decision 2006/783. Back

12   Council Framework Decision 2008/675. Back

13   Council Framework Decision 2008/909. Back

14   Council Framework Decision 2008/947. Back

15   Council Framework Decision 2008/978. Back

16   Council Framework Decision 2009/299. Back

17   Council Framework Decision 2009/829. Back

18   QQ 52 and 53. Back

19   Available at See para 11.1. Back

20   CCBE, para 24. Back

21   QQ 2, 7 and 17. Back

22   Bar Council, paras 1.3.1 and 1.3.3. Back

23   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

24   Ministry of Justice, para 40. Back

25   CCBE, para 28. Back

26   Q 46.  Back

27   Paragraphs 1.2.1. and 3.2. Back

28   Q 8. Back

29   COM (2004) 328. Back

30   1st Report of Session 2004-05. Back

31   2nd Report of Session 2006-07. Back

32   9th Report of Session 2008-09. Back

33   Council Resolution of 30 November 2009, OJ C 295, 4.12.2009, p 1. Back

34   COM(2010) 392. Back

35   COM(2011) 326. Back

36   COM(2011) 777. Back

37   COM(2011) 327. Back

38   Council Framework Decision 2001/220 and Directive 2004/80. The latter has an internal market legal basis. Back

39   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

40   Bar Council, para 1.5.1. Back

41   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

42   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

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