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

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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