Criminal Procedure Policy: EUC Report

Lord Bowness Excerpts

Monday 4th February 2013 Grand Committee

Moved By

[Lord Bowness]

That the Grand Committee takes note of the Report of the European Union Committee on The European Union’s Policy on Criminal Procedure (30th Report, Session 2010-12, HL Paper 288).

[Lord Bowness]

My Lords, I thank the members of the European Union Select Committee who participated in the inquiry, in whose name the report is issued, but particularly the members of the Sub-Committee on Justice, Institutions and Consumer Protection, which I chair. I thank all members for their assistance and, indeed, our legal advisers and our clerks. Perhaps other members of the committee will forgive me if I particularly mention one of our number who is no longer a member of the committee—namely, the noble and learned Lord, Lord Boyd of Duncansby, whose knowledge of Scottish procedure proved invaluable in our deliberations. We were sad that he left us but delighted that he did so to become a senator—not in terms of Lords reform but as a senator of the Scottish High Court of Justiciary.

I will refer to one other matter before I deal with the report; it is the elephant lurking in the corner of this room—that is, the Government’s current minded opt-out of the pre-Lisbon provisions, a decision which has to be made before May 2014. I should point out that the Justice, Institutions and Consumer Protection Sub-Committee together with the Home Affairs Sub-Committee of the European Union Committee are jointly conducting an inquiry into that decision. Currently, that inquiry is proceeding; written evidence has been received and is on the website; witnesses are still being seen; and we shall be seeing the Lord Chancellor and the Home Secretary next week. When that report is produced it will, I presume, include observations on the merits or otherwise of a decision to opt out of the pre-Lisbon measures. It may well contain some comment about matters which should be, in the opinion of the committee, retained—if, indeed, that is the opinion of the committee—and an opinion on how the matter should proceed and the likelihood of success.

I want to make it abundantly clear, and put it on the record, that nothing I say today should be construed as expressing an opinion on any of those questions while that inquiry is proceeding. This report may well express opinions about particular measures, but they were opinions expressed at the time about the measures, not in the context of whether or not there should be an opt-out or whether or not there are practical alternatives to staying within those measures. It is very important that Sub-Committee E and Sub-Committee F, the two sub-committees involved, are not seen in any way to have pre-judged this issue before the report is prepared and submitted—at some time, I hope, before the end of the Session—to your Lordships’ House, although that, of course, depends upon the Government’s decisions as to when they bring a Motion to the House and the other place regarding the opt-in. At the moment we do not know what their decision is, what measures, if any, they want to retain, or whether we can meet the timescale. I hope that what I say can be taken in that context.

The report before the Committee this afternoon was undertaken by the Justice, Institutions and Consumer Protection Sub-Committee in the light of the changes made in the Lisbon treaty in respect of criminal law. That certainly gave an impetus to EU legislation in this field and an impression, correct or otherwise, that the Commission was anxious to proceed further in this area.

The inquiry also coincided with our normal scrutiny of a proposal for a directive laying down minimum standards for access to a lawyer by a suspect or accused persons. This was used within the report as a case study. Access to lawyers was just one of a package or road map of proposals aimed at providing minimum rights for defendants across Europe. This road map, and a second aimed at providing minimum rights across Europe for the victims of crime, constituted the Commission’s legislative programme in the field of criminal procedure.

In the course of this inquiry, we took evidence from academics, police prosecutors, NGOs, practitioners and Ministers, as well as directly from members of the public, who gave evidence of their experiences—some distressing—as victims of crime in another member state. We are grateful to all our witnesses who assisted us in this way.

People are moving within the European Union in increasing numbers and, inevitably and regrettably, some get involved in the criminal justice systems of other member states either as perpetrators of crime or as victims. They find themselves having to deal with unfamiliar legal systems, probably in an unfamiliar language. Although I do not think we should always assume that everything we do is better than anything anybody else does, British citizens finding themselves in that situation in other member states may frequently find themselves with fewer rights than they could expect in similar circumstances in the United Kingdom. As I said, in any event, even if their rights are there, the procedures and language will be unfamiliar.

The Union’s counter to cross-border crime is to promote mutual recognition of the judicial decisions made in other member states—that is, the decision of a judge in one member state to be given effect in another with the minimum of formality. It is a form of co-operation based on our practice and it seeks to avoid the disruption of having very different criminal systems across Europe, as would happen if they had gone down the road of harmonisation. Perhaps the most well known example of mutual recognition is the European arrest warrant.

It is accepted, and the report accepts, that mutual recognition has its faults and is incomplete, but the evidence given to us for this inquiry suggested that it is largely successful. Mutual recognition requires trust between judges, and so a judge faced with a request for speedy extradition may be reluctant to agree if he or she thinks that this will result in the defendant spending long periods in poor prison conditions awaiting trial or if the trial is likely to be unfair. Equally, a refusal to extradite on such grounds is likely to be viewed in the member state making the request as an unwelcome criticism of its own criminal justice system. The road maps are intended to provide that trust by ensuring that minimum standards for defendants’ and victims’ rights are adhered to across the Union.

This report concludes that such legislation laying down minimum rights is in principle beneficial, and we supported the proposals. Why, we are sometimes asked, did we not consider the European Convention on Human Rights or other international legal instruments to be sufficient? Quite simply, as the Government acknowledge, the European Union legislation generally brings greater clarity and is usually capable of better enforcement, which is lacking in the case of these international instruments. Members of the Committee will recall, because it was mentioned on many occasions, that the backlog of cases in the European Court of Human Rights at the time of writing was more than 150,000, and it is still more than 100,000. Non-legislative measures such as better judicial training and better co-operation have a contribution to make but, in our view, they do not replace the need for legislation. We believe that the United Kingdom has little to fear or gain from legislation in this area because, as I said earlier, our standards are generally recognised as being among the better ones among the countries of Europe.

We have obviously had the opportunity to shape much of this legislation, which has enabled British citizens travelling abroad to benefit from improved standards in other states. We recognise, however, that this remains a sensitive area for European Union activity because of the very different legal traditions in the different member states. The case study on the proposal for access to a lawyer demonstrates how the proposal—or, I should say, a proposal—can be too ambitious. That led to a situation in which we were not able to support the idea that the United Kingdom should opt in; indeed, we supported the Government in their opt-out. I understand that we were not alone in our concerns. The matter has currently been taken to the European Parliament, which has submitted some 80 amendments to the general approach that was agreed in the Council. I understand that those 80 amendments take us back to square one, if not back further than that, so the negotiations are still continuing. Although we accept the motive behind this particular proposal, we hope that further negotiations will ultimately allow the UK to come to a decision, if this is still relevant at the time, to opt into that legislation.

Overall, the report sees the area of criminal procedure as one that has made slow but careful and steady progress. We would like the present measures in the road maps adopted and experience gained as to how they work before we go further. We are wary of road-map measures that might affect the admissibility of evidence. In practice, we support the Government’s positive approach to the road-map proposals, even in cases where they have not opted in but stayed involved with the negotiations. We welcome the fact that the Government have opted into the road-map measures, with the exception of this access to lawyers.

The opt-out from pre-Lisbon criminal measures is the subject of a further report. It does not apply to the road maps, and I re-emphasise that this report does not pre-empt the opt-out decision and the separate debate that the House will have in the light of the subsequent inquiry. Clearly the opt-in/opt-out uncertainty creates certain problems. There is a framework decision which we have already opted into and which was intended to allow the supervision order that is intended to allow those who are awaiting trial to spend time on remand in their own country. We participated in its adoption but we have not implemented it. Many people have commented in evidence published on the website that this will go some way to ameliorating the acknowledged problems that exist with the European arrest warrant.

However, these are matters that no doubt will be resolved by Her Majesty’s Government when they bring forward proposals and it is not appropriate for me to comment further. I beg to move.

--- Later in debate ---

[Lord Bowness]

My Lords, I thank all noble Lords who have taken part in this debate upon the report. I have to say that if the noble Lord, Lord Beecham, was thought to rant against the Government, I did not feel that he ranted against the committee, and for that I am grateful. However, although the European arrest warrant may not have attracted a great deal of attention within the report, we were trying to take stock of the road map proposals and look at their potential benefit, both in respect of victims of crime and in dealing with its perpetrators, and at how the principles of mutual recognition and trust are working—and are capable of working. We took the issue of access to lawyers in more detail only because we used it as a case study.

As I say, I am grateful to all noble Lords for their contributions and to the Minister for his reply. I apologise for failing to do what I am always instructed to do, although it is on the register and in the report—namely, to declare what may be deemed an interest as a solicitor and a notary.

Motion agreed.