CHAPTER 6: EU Criminal Procedure Legislation
and National Law |
85. Any EU criminal procedure legislation carries
the risk of interference with the different criminal justice systems
of the Member States which are based on very different legal traditions.
This is recognised in the Treaty, which requires EU legislation
to take account of the differences between the legal traditions
of the Member States.
86. In this Chapter we examine the extent to
which the differences between the legal traditions of Member States
hinders the setting of minimum standards, and how far EU legislation
and proposed legislation could adversely interfere in national
law, taking the proposal for access to a lawyer, which has attracted
widespread significant concern, as a case study.
The impact of EU legislation
on diverse national laws
87. The differences in the legal traditions of
Member States are starkly illustrated by comparing the inquisitional
system found, for example, in France and Germany and the adversarial
system common to the UK jurisdictions and Ireland. In the former
an investigation by police is commonly overseen by an examining
magistrate, who is drawn from the judicial profession and such
oversight is seen as providing protection for a defendant. Hence
the French system of police detention known as "garde
à vue", which, until July 2010 when it was overturned
by the French constitutional court in response to the ECtHR case
provided the framework for the detention and interrogation of
suspects by police. It gave only limited protection of the sort
found in the UK in the police station and the court process.
88. These differences led the Faculty of Advocates
to the view that it would not be realistic to seek to establish
a harmonised system of criminal justice across the whole EU.
The Ministry of Justice agreed that it is neither necessary nor
desirable to have harmonised EU-wide criminal procedure law as
there are insufficient common denominators, but accepted that
minimum standards can be developed at EU level where necessary.
The CCBE supported this approach, noting that the ECHR imposes
certain rights upon diverse legal systems in any event.
The Law Society of Scotland, whilst generally welcoming EU criminal
procedure legislation advised that care should be taken in framing
the measures to ensure that they have at their core the protection
of fundamental rights in accordance with the ECHR.
The Bar Council considered that neither the diversity of legal
systems, nor the substantial residual competence reserved to Member
States, need close the door to general, possibly EU-led, efforts
for each of them to learn from each other's best practice.
Indeed many witnesses felt able to recommend the UK standards
as a benchmark for other Member States.
89. Vice-President Reding emphasised that EU
legislation was intended to complement the national criminal law
systems, and that the Commission only made a proposal after in-depth
consideration and consultation, for example with national experts,
with European organisations of lawyers and the European Parliament.
She accepted that it was not possible to adopt, as EU minimum
standards, "the best solutions in the best Member States"
as that would be too intrusive. Instead the Commission put forward
"basic rights" in its proposals which, as a result of
the EU legislative procedure, end up as a balance between the
more ambitious European Parliament and the more cautious Council
90. Professor Peers was of the view that
EU legislation, on the whole, genuinely reflected the proviso
in the Treaty that the diversity of legal traditions should be
taken into account. Professor Spencer expressed the view
that Roadmap measures on criminal procedure "did not involve
anything that should scare the UK".
These views were supported by the Bar Council, which considered
that EU efforts to raise the standards in many other Member States
should entail relatively little change to domestic law.
It is significant that the Government have opted in to all the
criminal procedure proposals so far brought forward by the Commission
with the exception of that on access to a lawyer. This is an indication
that in their view the proposals were capable, through negotiation
if necessary, of being turned into legislation that would be acceptable
to the UK.
91. The position of victims is different in that
the international law standards are not so well developed as those
It is therefore less easy to base EU minimum standards on those
found in international law. On the other hand such legislation
is likely to have greater popular appeal. Vice-President Reding
stressed to us that it was the story of Mrs Hughes, outlined
in Box 5, that brought her to the victims Roadmap.
None of our witnesses pointed to any provision in the victims
legislation or in the current proposals which is unnecessary and
indeed the Government have so far opted in to all proposals.
Case Study: the proposal for
access to a lawyer
92. The risk posed by ambitious EU legislation
is illustrated by the Commission's proposal for access to a lawyer,
on which detailed evidence was taken in the course of our scrutiny.
This is the only proposal to which the UK has, so far, not opted
in. The problem is not confined to the UK. The French, Belgian,
Dutch and Irish Governments have joined the UK in writing to the
Commission to comment adversely on this proposal;
and the European Affairs Committee of the French National Assembly
has complained that this proposal appears better suited to proceedings
of the adversarial type.
We retain this proposal under scrutiny. The text is evolving through
negotiation, but for the purposes of this Report, references to
this proposal are references to the proposal as presented by the
93. Professor Peers identified this proposal
as being "ambitious" and having the biggest impact on
national law, but thought that the Council had rejected the provisions
which could be regarded as changing the core of national criminal
were suggestions that in the formulation of this proposal the
liberal instincts of the Commission had achieved the upper hand
or that the lobbying of the Commission by lawyers and non-governmental
organisations concerned with criminal defence had proved particularly
94. However they might have arisen, there were
some serious concerns with the proposal. Frank Mulholland QC,
the Lord Advocate, explained that, following the Supreme Court
decision in the case of Cadder
and consequent recent changes to ensure compliance with the ECHR,
Scottish law complied with the broad principle that there should
be a right of access to a lawyer, but would not comply with the
Commission's proposal at the detailed level. The thrust of his
concerns, which he described as "fundamental", was that
the proposal was framed in absolute terms without recognising
the proper interest of the law enforcement authorities, compounded
by a rule that evidence taken in contravention of the terms of
the Directive must be regarded as inadmissible.
He was supported from the perspective of the law of England and
Wales by ACPO. These concerns are summarised in Box 7.
Concerns raised with the Commission's
proposal for a Directive on access to a lawyer
- The proposal requires suspects and accused persons
to have access to a lawyer "as soon as possible" which
in an extreme case could prevent a person who initially confesses
to a crime from continuing to provide further details until access
to a lawyer had been granted. These further details could include
information needed for corroboration, to apprehend others or prevent
further crime. It could also prevent a suspect providing information
when being initially taken to a police station
and, according to ACPO, inhibit beneficial and informal "community
resolution" of minor crimes.
- The proposal requires access to a lawyer "upon
carrying out any procedural or evidence gathering act at which
the [suspected or accused] person's presence is required or permitted
as a right in accordance with national law, unless this would
prejudice the acquisition of evidence". This could require
a lawyer to be present before a house could be searched for drugs
or firearms, for example.
- The rule that evidence gathered in contravention
of the Directive would be inadmissible "unless such evidence
would not prejudice the rights of the defence" could result
in the exclusion from evidence of a witness statement given by
a person who subsequently becomes a suspect, or evidence which
is "fruit of the poison tree" i.e. collected in the
course of a line of investigation initiated by information provided
by a suspect who did not have access to a lawyer.
- The right of access to a lawyer is the right
to face to face contact which may not be a reasonable use of resources
and would present practical difficulties in remote areas.
- There are no exceptions to the rule of confidentiality
of communication with the lawyer, even for cases when the lawyer
is involved in criminal activity.
95. The Lord Advocate's view was that these provisions
go beyond the requirements of the ECHR and what is necessary to
provide minimum safeguards.
Liberty strongly disagreed with this assessment of the proposal,
and considered, in particular, that the words conditioning the
absolute exclusion of evidence obtained in contravention of the
proposal ("unless such evidence would not prejudice the rights
of the defence") was consistent with the rule, in England
and Wales, allowing a judge to exclude evidence if it would adversely
affect the fairness of the trial.
The Law Society accepted that the proposal went further than national
law, but was content that it should, particularly in relation
to face to face access to a lawyer and absolute lawyer-client
The Lord Chancellor accepted that the Commission may not have
intended the apparent perverse effects of its proposal, but argued
that, even so, the drafting ought to be clearer to ensure it was
not capable of being misunderstood.
96. In relation to the exercise of the UK opt-in,
the views of witnesses depended on their approach to the substance
of the proposal. Fair Trials International believed that the UK
should have taken the lead in protecting the rights of accused
persons across Europe by opting in to this proposal.
The Law Society, which welcomed both the raised standards of access
and absolute lawyer-client confidentiality, was of the view that
the proposal would not cause insurmountable difficulties even
though it goes beyond UK law.
97. The Lord Chancellor indicated that, although
the UK did not opt in at the early stage, this was one of those
cases where the UK has been able to negotiate with a view to opting
in to the legislation once adopted because other Member States
were positive about UK participation and shared its concerns.
He would be surprised if, at the end of the negotiations, the
UK would not be able to opt in to the adopted legislation.
This view was echoed by the Bar Council.
98. As the example of the proposal for access
to a lawyer demonstrates, EU minimum rules for criminal procedure
can present a significant risk to the functioning of national
criminal law systems. That risk can be greatly reduced by firmly
grounding such legislation in the principles of the ECHR and other
international law norms.
99. We agree with the Government that the
proposal for access to a lawyer, in the form put forward by the
Commission, would be too disruptive for the UK criminal justice
systems and therefore support the Government's decision not to
opt in. However, even in this exceptional case, we remain hopeful
that the outcome of negotiations may be legislation to which the
UK could opt in.
121 Salduz v Turkey, Case number 36391/02, judgment
of 27 November 2008. Back
Q 31 and 33 (Law Society).** Back
Faculty of Advocates, para 1(a). Back
Ministry of Justice, para 4. Back
CCBE, para 9. Back
Law Society of Scotland. Back
Bar Council, para 1.1.1. Back
QQ 50 and 51. Back
QQ 9 and 12. Back
Bar Council, para 3.1.3. Back
There is a United Nations Declaration of Basic Principles of Justice
for Victims of Crime and Abuse of Power of 1985 which does not
have binding legal effect and, within the framework of the Council
of Europe, a European Convention on the Compensation of Victims
of Violent Crimes (which has been signed by 19 Member States and
ratified by 16) and two Recommendations of the Committee of Ministers,
No. R (85) 11 on the Position of the Victim in the Framework of
Criminal Law and Procedure, and R (2006) 8 on assistance to crime
Q 46. Back
COM (2011) 326. Back
Q 13. Back
Q 14 (Professor Peers) and Q 85 (Lord Chancellor). Back
Cadder v Her Majesty's Advocate  UKSC 43. Back
QQ 2, 3 and 10.** Back
QQ 3 and 19.** Back
Q 45.** Back
Q 3.** Back
Q 3 and Q 8;** in HM Advocate v P (Scotland)  UKSC
44 the Supreme Court decided that there was no absolute rule that
evidence which was the fruit of the poison tree would violate
a defendant's ECHR rights. Back
QQ 13 and 14.** Back
QQ 16 and 17.** Back
QQ 9 and 11.** Back
Q 40. Back
Q 39; QQ 36 and 46. Back
Q 84. Back
Fair Trials International, para 11. Back
Q 39. Back
Q 84. Back
Bar Council 3.1.7. Back