CHAPTER 7: Future Developments |
Further development of EU criminal
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.
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".
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.
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,
confirmed by Baroness Ludford.
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, 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.
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
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
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.
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,
Professor Peers pointed out that the Commission had produced
a Green Paper in 2006 on the presumption of innocence,
but that it did not thereafter make out a sufficient case for
EU legislation on this issue.
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.
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.
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
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.
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.
112. The Government have provided a list of the
instruments which are presently affected by the opt-out.
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.
Further repeals and replacements of existing third pillar legislation
in the areas of mutual recognition or criminal procedure are not
113. The Bar Council described the opt-out decision
as "a very delicate and important tactical decision"
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.
Professor Spencer alerted us to the "unthinkable mess"
that would ensue in relation to extradition if we were to opt
out of the EAW.
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. 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.
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
Section 2.4. Back
Section 2.3.4. Back
QQ 46 and 49. Back
Baroness Ludford, paras 2 and 5. Back
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
COM(2011) 573 "Towards an EU Criminal Policy: Ensuring the
effective implementation of EU policies through criminal law". Back
COM(2011) 777. Back
Q 16 (Professor Peers). Back
Q 34. Back
COM(2006) 174. Back
Q 16. Back
Q 2. Back
Q 2 (Professor Peers); CCBE, para 19. Back
Articles 9 and 10. Back
Declaration 50. Back
Letter of 21 December 2011 from the Home Secretary, available
at http://www.openeurope.org.uk/Content/Documents/Pdfs/JHA2014choice.pdf Back
The 2004 Directive on relating to compensation for victims of
crime was not a third pillar measure. Back
Q 26 (Professor Peers). Back
Bar Council, para 3.3.3. Back
Q 24. Back
Q 24. Back
Q 71. Back
Q 70. Back