CHAPTER 8: Summary of Conclusions
The development of criminal procedure
law
117. 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
(paragraph 25).
118. The Lisbon Treaty changes have facilitated
and given impetus to the adoption of EU criminal procedure legislation
(paragraph 30).
The UK opt-in
119. In practice the case by case approach to
the UK opt-in set out in the Coalition Agreement has resulted
in the Government opting in to proposals for criminal procedure
legislation. We agree that the UK should opt in to proposals for
criminal procedure legislation at an early stage unless there
is clear justification for not doing so (paragraph 40).
120. It is notable that the emergency brake has
not yet been used by any Member State in relation to criminal
procedure legislation (paragraph 42).
The scope of EU criminal procedure
legislation
121. The Treaty requirement that the EU should
only legislate on criminal procedure to the extent necessary to
facilitate mutual recognition is an important limitation on competence.
However, it does not go so far as to require a criminal procedure
measure to demonstrate that it facilitates a specific mutual recognition
measure. It is enough that the criminal procedure measure provides
support for the operation, generally, of mutual recognition (paragraph
49).
122. We accept the evidence given to us that
it is not practical or strictly necessary for EU criminal procedure
legislation to be limited to cross-border offences (paragraph
53).
123. Although, strictly, a legal test, compliance
with subsidiarity involves an assessment by the legislator on
a case by case basis of the added value of legislating at an EU
level. In relation to the criminal procedure proposals brought
forward for scrutiny to date we have not yet found it necessary
to raise a subsidiarity objection, but we shall continue to scrutinise
this aspect of any future proposals (paragraph 55).
The value of EU criminal procedure
legislation
124. There are legitimate concerns that the EU
citizens who find themselves involved in the criminal justice
system of another Member State, either as defendants or as victims
of crime, are disadvantaged and, in the case of British citizens,
may find themselves with fewer rights than they would expect in
their own country. Having minimum rules operable throughout the
EU can materially improve their position (paragraph 62).
125. Current EU legislation, subject as it is
to the Charter of Fundamental Rights, does permit the court of
a Member State to refuse mutual recognition on human rights grounds
in justified cases. However there is reluctance by judicial authorities
to do so. If such refusal became widespread there is a risk of
undermining mutual trust because it calls into question the human
rights protection provided by the Member State requesting mutual
recognition. EU legislation setting down minimum rights can help
avoid this risk (paragraph 69).
126. EU legislation brings a considerable added
value over the ECHR in that it can be effectively enforced by
individuals directly in all national courts and by the Commission
through infringement proceedings. It also can cover matters not
adequately covered by the ECHR and is more flexible (paragraph
78).
127. Whilst non-legislative actions, such as
improved judicial training and improvements to Eurojust and the
European Judicial Network, are helpful in building mutual trust
between judicial authorities, they can only complement, not replace,
EU legislation setting minimum rights for defendants and victims
(paragraph 84).
EU legislation and national law
128. 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 (paragraph 98).
129. 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
(paragraph 99).
Future developments
130. 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 (paragraph 107).
131. Overall, existing EU criminal procedure
legislation and current proposals provide benefits to British
citizens travelling abroad, and to law enforcement authorities
(paragraph 108).
132. 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 (paragraph 109).
133. 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 (paragraph
115).
134. 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
an inquiry by this Committee in 2013, so that the Government have
our views well in advance of the deadline of May 2014 (paragraph
116).
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