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

CHAPTER 7: Future Developments

Further development of EU criminal law

100.  The further development of mutual recognition and EU criminal procedure law is foreseen in the Stockholm Programme, albeit in tentative terms. This is set out in Box 8.


Stockholm Programme measures for mutual recognition and criminal procedure
The Stockholm Programme envisages that mutual recognition could extend to all types of judgments and judicial decisions, and invites specific action on the following:
  • A proposal for a comprehensive system for gathering evidence, now the EIO.
  • An exploration of other means to facilitate the admissibility of evidence.
  • An exploration of the results of the evaluation of the EAW and, where appropriate, further proposals to increase the efficiency and legal protection of individuals in the process of surrender by a step by step approach to other instruments of mutual recognition.
  • A study on obstacles to cross-border enforcement of penalties and administrative decisions for road traffic offences, with, where necessary, further legislative and non-legislative initiatives to improve road safety.

It also sets out a long term aim of mutual recognition of judgments imposing certain types of disqualification.[154]

In respect of criminal procedure it calls for the recently adopted criminal procedure Roadmap to be implemented swiftly and to "examine further elements of minimum procedural rights for suspected persons, and to assess whether other issues, for instance the presumption of innocence, needs to be addressed, to promote better co-operation in this area".[155]

In respect of victims it calls on the Commission and Member States—

  • to examine how to improve legislation and practical support measures for victims, and to improve the implementation of existing measures;
  • to offer better support to victims in other ways, such as existing European networks; and
  • to examine the opportunity of making one comprehensive legal instrument on the protection of victims.[156]

101.  Vice-President Reding signposted a greater ambition on the part of the Commission. She indicated that she was "fully persuaded that a European system of criminal procedure law is not only desirable but essential. Cross-border crime happens and requires a cross-border mechanism to defeat it. Judicial co-operation between the Member States can function efficiently only if there is legislation and if there are procedures available." She also pointed to the pressure from the European Parliament to legislate,[157] confirmed by Baroness Ludford.[158]

102.  The Vice-President's evidence is consonant with another indication of the Commission's ambitions. Its Communication of September 2011, although directed at another area of EU criminal law,[159] began its very title with the phrase "Towards an EU Criminal Policy" and included the general assertion that EU legislation can add important value to existing national criminal law systems by fostering confidence for EU citizens to exercise their free movement rights through the adoption of a more effective fight against crime and the adoption of minimum standards for procedural rights; and to strengthen mutual trust among the judiciaries and law enforcement authorities of the Member States.[160]

103.  The Commission's 2012 Work Programme envisages that it will bring forward two proposals that are in accordance with the criminal procedure Roadmap:

  • Providing special safeguards in criminal procedures for suspected or accused persons who are vulnerable.
  • Defining minimum rules for legal aid, timetabled for 2013.

However it also signals future legislation going beyond the Roadmaps:

  • Establishing limitation and prescription periods for cross-border road traffic accidents.
  • Revising the 2004 Directive on compensation for victims of crime, whereas the victims Roadmap envisaged merely a prior review.

It also indicates that the Commission will issue a Green Paper in 2013 on the possible extension of minimum procedural rights.[161]

104.  Measure F of the criminal procedure Roadmap was a Green Paper concerning the period of pre-trial detention which the Commission has also used to consult on the conditions of pre-trial detention. From our scrutiny of this Green Paper it appears that the Commission was essentially seeking factual information at this stage and not putting forward specific proposals. This is a particularly sensitive issue as it impacts on the costs of the criminal justice system to a similar extent, if not more, than legal aid, which is a criminal procedure Roadmap measure that is likely to prove controversial. However the need for a measure on pre-trial detention depends to a significant extent on the success of the legislation which has been adopted for the recognition of bail decisions.[162] If, in the light of this legislation, Member States are sufficiently ready to grant bail to citizens of other Member States then the period before trial, provided it remains within the bounds set by the ECHR, becomes less critical.

105.  Our witnesses generally took a cautious approach to future developments beyond the Roadmaps. Whilst JUSTICE identified the presumption of innocence and the right to silence as areas of criminal procedure needing further EU legislation,[163] Professor Peers pointed out that the Commission had produced a Green Paper in 2006 on the presumption of innocence,[164] but that it did not thereafter make out a sufficient case for EU legislation on this issue.[165] He also issued a specific warning against EU legislation to make evidence which is admissible in one Member State automatically admissible in another. This would, in his opinion, require some degree of harmonisation of the law of evidence.[166]

106.  A significant body of witnesses considered that mutual recognition should not be taken beyond the existing proposal for the European Investigation Order until the framework for minimum rights was in place.[167]

107.  We agree that no new proposal for mutual recognition should be brought forward until the current proposals for legislation under the two Roadmaps have been put in place and have had time to make an impact. In particular, very good justification is needed before further legislation on the admissibility of evidence is proposed.

108.  Overall, existing EU criminal procedure legislation and current proposals provide benefits to British citizens travelling abroad, and to law enforcement authorities.

109.  The Government should therefore continue to look favourably, in principle, at opting in to further Roadmap legislation bearing in mind particularly the influence that the UK can bring in raising standards across the EU to the benefit of travelling UK citizens, and the risk, if we do not opt in, that the trust placed in the UK criminal justice systems by judges of other Member States will be diminished.

The UK opt-out of existing EU criminal law

110.  Protocol 36 to the Lisbon Treaty ensures that pre-Lisbon third pillar legislation continues in force, but measures "in the field of police and judicial co-operation in criminal matters" (which include criminal procedure legislation) are only subject, until December 2014, to the limited, pre-Lisbon, jurisdiction of the Court of Justice; and the Commission is not able to take infringement proceedings. However until May 2014 the UK is able to opt out from all the pre-Lisbon legislation. This is an all or nothing decision which, if taken, triggers another possible decision by the other Member States to determine whether there are unavoidable financial consequences which the UK must bear. The opt-out decision is tempered by the possibility of the UK subsequently opting back in to individual measures. If it does, the application is treated as if it were an application for the UK to participate under Protocol 21 in a measure already adopted by the other Member States, subject to the additional proviso that "the Union institutions and the United Kingdom shall seek to re-establish the widest possible measure of participation of the United Kingdom in the acquis of the Union in the area of freedom, security and justice without seriously affecting the practical operability of the various parts thereof, while respecting their coherence".

111.  If a pre-Lisbon third pillar measure is amended by post-Lisbon legislation then the whole of the legislation, as amended, becomes subject to the full post-Lisbon regime insofar as concerns those Member States participating in the amending instrument and no question of a UK opt-out arises.[168] In a Declaration to the Lisbon Treaty the EU institutions were invited to adopt, in appropriate cases and as far as possible before the expiry of the transitional period, new legislation amending and replacing the pre-Lisbon measures.[169]

112.  The Government have provided a list of the instruments which are presently affected by the opt-out.[170] These include the pre-Lisbon mutual recognition legislation listed in Box 1, and the 2001 Framework Directive on the standing of victims in criminal proceedings for which a post-Lisbon replacement is under negotiation and likely to be adopted before the opt-out decision is taken, and the 2002 Framework Decision on countering terrorism which includes a minor provision for the benefit of victims of terrorism.[171] Further repeals and replacements of existing third pillar legislation in the areas of mutual recognition or criminal procedure are not in prospect.[172]

113.  The Bar Council described the opt-out decision as "a very delicate and important tactical decision"[173] whilst Professor Peers drew attention to the possibility that the UK could exercise the opt-out and then quickly opt back in to those measures which it wanted to retain, but cautioned that this could not only cause political problems but would also leave a gap that could cause a number of legal problems.[174] Professor Spencer alerted us to the "unthinkable mess" that would ensue in relation to extradition if we were to opt out of the EAW.[175]

114.  The Lord Chancellor has indicated that the Government's consideration of the opt-out decision has only just started with the compilation of the list of measures to which it applied and no collective ministerial decision has yet been taken.[176] He too was sceptical that the UK would be allowed to take a "pick and mix" approach. But in any event he gave an assurance that no decision would be taken without giving both Houses of Parliament an opportunity to vote on it.[177]

115.  Although the decision whether to opt out of pre-Lisbon third pillar legislation is unlikely to involve any significant EU criminal procedure legislation, there is nevertheless likely to be a significant body of subsisting EU mutual recognition legislation which will be involved. Opting out of this legislation would have significant repercussions on UK criminal enforcement. We share the scepticism that it will be possible for the UK to "pick and mix" by opting out of all the subsisting pre-Lisbon legislation and immediately opting back in to some only.

116.  We welcome the Government's assurance that the opt-out decision will be subject to debate and vote in both Houses of Parliament. The questions raised by Protocol 36 are wider than the subject of this Report and we plan to undertake a separate inquiry by this Committee in 2013, so that the Government will have our views well in advance of the deadline of May 2014.

154   Section 3.1.1. Back

155   Section 2.4. Back

156   Section 2.3.4. Back

157   QQ 46 and 49. Back

158   Baroness Ludford, paras 2 and 5. Back

159   The extent to which EU legislation in other policy areas should prescribe the criminal law sanctions that Member States should put in place to ensure enforcement. Back

160   COM(2011) 573 "Towards an EU Criminal Policy: Ensuring the effective implementation of EU policies through criminal law". Back

161   COM(2011) 777. Back

162   Q 16 (Professor Peers). Back

163   Q 34. Back

164   COM(2006) 174. Back

165   Q 16. Back

166   Q 2. Back

167   Q 2 (Professor Peers); CCBE, para 19. Back

168   Articles 9 and 10. Back

169   Declaration 50. Back

170   Letter of 21 December 2011 from the Home Secretary, available at Back

171   The 2004 Directive on relating to compensation for victims of crime was not a third pillar measure. Back

172   Q 26 (Professor Peers). Back

173   Bar Council, para 3.3.3. Back

174   Q 24. Back

175   Q 24. Back

176   Q 71. Back

177   Q 70. Back

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