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

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 of Salduz,[121] 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.[122]

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.[123] 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.[124] The CCBE supported this approach, noting that the ECHR imposes certain rights upon diverse legal systems in any event.[125] 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.[126] 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.[127] 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 of Ministers.[128]

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".[129] 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.[130] 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 for defendants.[131] 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.[132] 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;[133] and the European Affairs Committee of the French National Assembly has complained that this proposal appears better suited to proceedings of the adversarial type.[134] 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 Commission.[135]

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 procedure.[136] There 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 effective.[137]

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[138] 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.[139] 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[140] and, according to ACPO, inhibit beneficial and informal "community resolution" of minor crimes.[141]

  • 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.[142]

  • 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.[143]

  • 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.[144]

  • 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.[145]

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.[146] 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.[147] 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 confidentiality.[148] 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.[149]

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.[150] 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.[151]

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.[152] This view was echoed by the Bar Council.[153]

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

122   Q 31 and 33 (Law Society).** Back

123   Faculty of Advocates, para 1(a). Back

124   Ministry of Justice, para 4. Back

125   CCBE, para 9. Back

126   Law Society of Scotland. Back

127   Bar Council, para 1.1.1. Back

128   QQ 50 and 51. Back

129   QQ 9 and 12. Back

130   Bar Council, para 3.1.3. Back

131   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 victims. Back

132   Q 46. Back

133 Back

134 Back

135   COM (2011) 326. Back

136   Q 13. Back

137   Q 14 (Professor Peers) and Q 85 (Lord Chancellor). Back

138   Cadder v Her Majesty's Advocate [2010] UKSC 43. Back

139   QQ 2, 3 and 10.** Back

140   QQ 3 and 19.** Back

141   Q 45.** Back

142   Q 3.** Back

143   Q 3 and Q 8;** in HM Advocate v P (Scotland) [2011] 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

144   QQ 13 and 14.** Back

145   QQ 16 and 17.** Back

146   QQ 9 and 11.** Back

147   Q 40. Back

148   Q 39; QQ 36 and 46. Back

149   Q 84. Back

150   Fair Trials International, para 11. Back

151   Q 39. Back

152   Q 84. Back

153   Bar Council 3.1.7. Back

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