APPENDIX 6: CRIMINAL PROCEDURE MEASURES
Introduction
European Union criminal procedure measures are rules
intended to protect defendants and victims. Since 1999, in its
three successive five year plans for Justice and Home Affairs
(JHA) legislation,[490]
the European Council has repeatedly called for criminal procedural
rights legislation
The adoption of the Lisbon Treaty gave fresh impetus
to EU legislation under Title V of the Treaty which states, "The
Union shall constitute an area of freedom, security and justice
with respect for fundamental rights and the different legal systems
and traditions of the Member States".[491]
In 2009, the European Council adopted the Resolution
on a Roadmap strengthening procedural rights of suspected and
accused persons in criminal proceedings ("the Roadmap").[492]
As result of the Roadmap, a number of proposals have been made
by the Commission and adopted by the Council.
In accordance with Protocol 21 of the Lisbon Treaty,
freedom, security and justice matters do not, in principle, apply
to the UK. However, the Government may decide to opt in to proposals
and legislation.
The House of Lords EU Select Committee ("the
EU Committee") scrutinises the EU's criminal justice legislation.[493]
It has published a number of reports on various proposals.
Roadmap measures
The annex to Roadmap resolution listed five measures
to "give an indication of the proposed action". Each
measure was accompanied by a brief description (see Table 1). Table
1: The Roadmap measures
| Roadmap measure
| Brief description
|
| Measure A: Translation and Interpretation
| The suspected or accused person must be able to understand what is happening and to make him/herself understood. A suspected or accused person who does not speak or understand the language that is used in the proceedings will need an interpreter and translation of essential procedural documents. Particular attention should also be paid to the needs of suspected or accused persons with hearing impediments.
|
| Measure B: Information on Rights and Information about the Charges
| A person that is suspected or accused of a crime should get information on his/her basic rights orally or, where appropriate, in writing, e.g. by way of a Letter of Rights. Furthermore, that person should also receive information promptly about the nature and cause of the accusation against him or her. A person who has been charged should be entitled, at the appropriate time, to the information necessary for the preparation of his or her defence, it being understood that this should not prejudice the due course of the criminal proceedings.
|
| Measure C: Legal Advice and Legal Aid
| The right to legal advice (through a legal counsel) for the suspected or accused person in criminal proceedings at the earliest appropriate stage of such proceedings is fundamental in order to safeguard the fairness of the proceedings; the right to legal aid should ensure effective access to the aforementioned right to legal advice.
|
| Measure D: Communication with Relatives, Employers and Consular Authorities
| A suspected or accused person who is deprived of his or her liberty shall be promptly informed of the right to have at least one person, such as a relative or employer, informed of the deprivation of liberty, it being understood that this should not prejudice the due course of the criminal proceedings. In addition, a suspected or accused person who is deprived of his or her liberty in a State other than his or her own shall be informed of the right to have the competent consular authorities informed of the deprivation of liberty.
|
| Measure E: Special Safeguards for Suspected or Accused Persons who are Vulnerable
| In order to safeguard the fairness of the proceedings, it is important that special attention is shown to suspected or accused persons who cannot understand or follow the content or the meaning of the proceedings, owing, for example, to their age, mental or physical condition.
|
| Measure F: A Green Paper on Pre-Trial Detention
| The time that a person can spend in detention before being tried in court and during the court proceedings varies considerably between the Member States. Excessively long periods of pre-trial detention are detrimental for the individual, can prejudice the judicial cooperation between the Member States and do not represent the values for which the European Union stands. Appropriate measures in this context should be examined in a Green Paper.
|
Source: Resolution on a Roadmap strengthening
procedural rights of suspected and accused persons in criminal
proceedings, Annex, 2009/C 295/01
Subsequent legislation
Since the publication of the Roadmap, the Commission
has proposed a number of Directives to fulfil the intentions of
the Roadmap measures. In some cases the UK has opted in to, in
others it has not (see Table 2). The EU Committee's default position
on the Roadmap proposals was 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."[494] Table
2: Subsequent legislation
| Directive
| UK's position and the EU Committee's view
|
| Directive providing for a suspect's right to translation and interpretation[495]
| EU Committee advised the Government to opt in.
The UK has opted in.
|
| Directive on the right to information in criminal proceedings[496]
| EU Committee advised the Government to opt in.
The UK has opted in.
|
| Directive on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty[497]
| EU Committee advised against opting in as it was concerned about a number of aspects, for example, the implications of requiring face-to-face access to a lawyer in more remote parts of the country.[498]
The UK did not opt in to this Directive. The Government promised to review the position. Participating Member States adopted the Directive in October 2013. The Government's review remains outstanding.
|
| Proposed a Directive on provisional legal aid for suspects or accused persons deprived of liberty and legal aid in European arrest warrant proceedings[499]
| EU Committee suggested the Government await the outcome of negotiations before deciding whether to opt in. The Committee had concerns that the proposals would require substantive changes to UK law—in particular, to accommodate the dual representation provisions.
In July 2014, the Government confirmed its decision not to opt in and that it has no intention of opting-in at any time.
|
| Proposed Directive on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings[500]
| EU Committee recommended that the Government should not opt in. The proposal remains under discussion in the Council.
The Government have confirmed that they do not plan to opt in.
|
| Proposed Directive on procedural safeguards for children suspected or accused in criminal proceedings[501]
| EU Committee concluded that the Government should opt in to the proposed Directive, subject to certain changes being made in negotiations.
In July 2014, the Government confirmed its decision not to opt in to this proposal. The proposal remains under discussion in the Council, though a general approach was agreed in May 2014.
|
490 The Tampere Programme covering the period 2000-04,
the Hague Programme covering the period 2005-09 and the Stockholm
Programme covering the period 2010-14. Back
491
Article 67 Back
492
Resolution of the Council on a Roadmap for strengthening procedural
rights of suspected or accused persons in criminal proceedings
2009/C 295/01 Back
493
Details of the Sub-Committee's work can be found on the Parliamentary
website: http://www.parliament.uk/hleue [accessed 3 March 2015] Back
494
European Union Committee, The European Union's Policy on Criminal Procedure
(30th Report, Session 2010-12, HL Paper 288) Back
495
Directive of the European Parliament and of the Council on the
right to interpretation and translation in criminal proceedings,
2010/64/EU Back
496
Directive of the European Parliament and of the Council on the
right to information in criminal proceedings, 2012/13/EU Back
497
Directive of the European Parliament and of the Council on the
right of access to a lawyer in criminal proceedings and in European
arrest warrant proceedings, and on the right to have a third party
informed upon deprivation of liberty and to communicate with third
persons and with consular authorities while deprived of liberty,
2013/48/EU Back
498
European Union Committee, The European Union's Policy on Criminal Procedure
(30th Report, Session 2010-12, HL Paper 288) Back
499
Proposal for a directive of the European Parliament and of the
Council on provisional legal aid for suspects or accused persons
deprived of liberty and legal aid in European arrest warrant proceedings,
COM(2013) 824 Back
500
Proposal for a directive of the European Parliament and of the
Council on the strengthening of certain aspects of the presumption
of innocence and of the right to be present at trial in criminal
proceedings, COM(2013) 821 Back
501
Proposal for a directive of the European Parliament and of the
Council on procedural safeguards for children suspected or accused
in criminal proceedings, COM(2013) 408 Back
|
