The Lord Chancellor and Secretary of State for Justice (Chris Grayling)
My noble friend the Minister for civil justice and legal policy, Lord Faulks QC, made the following written ministerial statement on 30 July 2014:
The Government on 18 March 2014 decided not to opt in to any of the three EU criminal procedural rights proposals—proposal for a directive on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings, proposal for a directive on procedural safeguards for children suspected or accused in criminal proceedings, proposal for a directive on provisional legal aid for suspects or accused persons deprived of liberty and legal aid in European arrest warrant proceedings, which were all published by the European Commission (“the Commission”) at the same time. These decisions were debated in the other place on 18 March 2014. Explanatory memoranda for each proposal have previously been deposited in Parliament.
The Commission produced a legislative proposal on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings which aims to establish common rules in matters it has identified as relevant to “the presumption of innocence”. It is proposed under article 82(2)(b) of the treaty on the functioning of the European Union. Accordingly, the UK’s title V opt-in applies.
The Commission’s accompanying explanatory memorandum (EM) explains that it considers that the issue of the presumption of innocence may have a bearing on the mutual trust between member states and therefore on the effective application of mutual recognition measures. However, the Government do not believe that the case has been at all made to demonstrate the need for EU action in this area. Indeed the Commission’s own EM suggests that there is limited evidence to suggest there is a demonstrable problem with the current arrangements. This House, on the recommendation of the European Scrutiny Committee, had expressed similar misgiving about the need for the proposed legislative instrument and issued a reasoned opinion to the Commission indicating that it had failed to satisfy the subsidiarity principle.
The proposal would require some significant changes to UK laws and practice if it were accepted in its current form. For example the very limited circumstances in which adverse inferences can be drawn from a defendant’s silence or refusal to co-operate would likely have to be changed. Of course the presumption of innocence is a long-standing principle of the common law and UK laws that place exceptions upon this principle have been found to be compliant with the European convention on human rights.
The Government therefore consider the proposal to be unnecessary and unwelcome and have concluded that the UK should not opt in to the proposal. UK will therefore not be bound by the outcome.
The Commission’s also proposed a directive on procedural safeguards for children suspected or accused in criminal proceedings. This aims to establish common rules regarding the treatment of children suspected or accused of a criminal offence or the subject of a European arrest warrant (EAW). It is proposed under article 82(2)(b) of the treaty on the functioning of the European Union. Accordingly, the UK’s title V opt-in applies.
The Commission’s EM accompanying this proposal explains that in the Commission’s view a lack of common rules at a European level leads to a lack of mutual trust and recognition across the Union. As children are regarded as vulnerable, it argues, they require elevated and specific safeguards.
Of course the Government support the principle that children that become engaged with the law enforcement agencies and the criminal justice systems are vulnerable and need special protection. UK laws and practice reflect this and there are a raft of protective measures in place to help and support these children. For example, the Police and Criminal Evidence Act 1984 (“PACE”) and associated PACE codes set out the rules for the treatment of children accused or suspected of a criminal offence. This framework provides actions to protect children being held by the police and other judicial authorities. However, the proposed directive would establish different rules. The Government are not convinced those rules would represent an improvement in the support and protection of young people in the UK from those that already exist here. Some aspects of the proposed rules would require some significant changes to UK arrangements to no obvious benefit. For example, UK laws are nuanced and recognise that children of different ages may require different levels of protection. By establishing the definition of a child at one level the proposal would change that. The laws of the UK also recognise that in certain limited circumstances it is necessary to detain children for a period of time, for example if it is necessary to secure or preserve evidence relating to an offence or to obtain evidence via questioning. The proposal would seem to seek to alter those arrangements. Further, the proposal suggests some new arrangements which the Government consider to be disproportionate if applied to all cases, for example the requirement to audio-visually record almost all interviews. This is not common practice in the UK; all interviews are audio recorded but there is very little routine use of audio-visual recordings.
The Government have therefore decided that the UK will not be opting in to this directive and the UK will not be bound by the outcome. That position can of course be reconsidered at the conclusion of the instrument if there have been changes which address the above concerns.
The Commission also published a proposal for a directive on provisional legal aid for suspects or accused persons deprived of liberty and legal aid in European arrest warrant (EAW) proceedings. This aims to establish common rules about access to provisional legal aid for suspected or accused persons in certain circumstances and in relation to or persons subject to an EAW. The directive is proposed under article 82(2)(b) of the treaty on the functioning of the European Union. Accordingly, the UK’s title V opt-in applies.
The Commission’s accompanying EM suggests that a lack of common rules at a European level leads at present leads to a deficit of mutual trust and recognition across the Union. It suggests that common minimum standards on provision of criminal legal aid are necessary to improve mutual trust between judicial authorities.
The Government consider the proposal to be unnecessary and unwelcome. It considers that the UK’s current system for the provision of criminal legal aid is one of which we can be proud. Access to criminal legal aid in the UK is already of a high standard. The right to criminal legal aid is already guaranteed by article 6 of the European convention on human rights, and of course UK laws and practice are compliant with that. The UK criminal legal aid regime delivers legal aid to those that need it when they need it. The Government consider that the rules on legal aid are most appropriately determined by member states themselves rather than at the EU level. The Government have therefore concluded that the UK will not opt in to this proposal and the UK will therefore not be bound by the final directive.