In July 2010 the European Commission proposed a draft directive setting common minimum standards as regards the right to information in criminal proceedings throughout the European Union. This proposal is a second step in several measures foreseen in the Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings, unanimously agreed by the Council in October 2009.
Following several secret trilogues meetings, the European Parliament representatives and the Presidency of the Council of Ministers reached a compromise text on the draft proposal, which was then endorsed by the European Parliament last December and approved by the Council on 26 April.
The UK has the right to choose whether to take part in judicial and police cooperation in criminal matters, but the Government has decided to opt in to the Directive on the right to information in criminal proceedings. Hence, the UK is subjected to the Commission enforcement powers and to the ECJ jurisdiction. The Government has initially raised concerns over the proposal. But, the Secretary of State for Justice, Kenneth Clarke, has explained to the European Scrutiny Committee that the text of the draft directive “has improved and is now largely acceptable to the UK.”
In order to enhance mutual trust, the draft proposal lays down common minimum standards to be applied in the field of information about rights and about the charge to be given to persons suspected or accused of having committed a criminal offence. According to the Commission “Having common minimum standards in relation to these rights should facilitate the application of the principle of mutual recognition, thereby improving the functioning of judicial cooperation between Member States of the EU.” However, to foster mutual trust and to improve the rights of suspects, Brussels just have one solution – harmonisation.
The Draft Directive will enhance the rights of suspected and accused persons abroad as it will ensure that they have access to information on their rights as well as information about the charges. However, on the other hand, as Timothy Kirkhope MEP said, “(…) it must not be seen as a move towards an EU common criminal system.”But, that is what Brussels has in mind. The measures mentioned in the roadmap are the first step towards the harmonisation of criminal procedural law, entailing the codification of the rights of defendants across the EU.
The draft directive goes beyond what is currently provided by the European Convention of Human Rights. The draft directive establishes rules concerning the rights of suspected and accused persons to information about their rights and information about charges in criminal proceedings against them. It would apply from the time that a person is made aware by a Member State’s competent authorities, that he/she is suspected or accused of having committed a criminal offence until the conclusion of the proceedings.
Under the draft directive, Member States must ensure that that all suspected and accused persons are promptly informed, in their own language, orally and in writing, about their procedural rights in cases where they are deprived of their liberty by their competent authorities in the course of the criminal proceedings on suspicion of having committed a criminal offence. Member States would be therefore required to inform these persons of their relevant rights in writing, through the so called Letter of Rights. There are 12 Member States, including the UK, which already inform suspects of their rights through a letter system. All arrested persons detained at a police station in England, Wales and Northern Ireland are provided with a 'Notice of Rights and Entitlements', however in Scotland the suspects’ rights are provided orally, consequently the proposal will have a bigger impact in Scotland, which would have to amend its legislation to implement the directive.
The Letter of Rights will be translated into all the EU's official languages and must be drafted in simple and accessible language so it can be easily understood. Under the compromise text, those arrested or detained in the course of criminal proceedings have the right to be informed to the right of access to a lawyer, of any entitlement to legal advice free of charge and the conditions to obtaining it, the right to remain silent, the right to be informed of the charge, where appropriate, the right to access to the materials of the case, the right to interpretation and translation, the right to have consular authorities and one person informed, the right of access to urgent medical assistance, the right to be brought promptly before a court if the suspected or accused person is arrested, the right to know how long they can be deprived of liberty in the country concerned before being brought before a judicial authority after arrest. The Letter of Rights does not create these rights, but the Member States' obligations arise from the Charter, the ECHR, and applicable EU legislation.
The EU Member States are free to draft their own Letters of Rights providing they include accurate information about the above-mentioned fair trial rights. However, in order to ensure consistency in the written information throughout the EU, the European Commission has also proposed an indicative model of the Letter (Annex I to the proposal). Member States are not obliged to use the model provided by the Commission, they may decide on exact wording of the letter, nevertheless those that adopted it will be presumed to have implemented the relevant Directive provisions.
Police officers in all EU Member States police stations will have to provide suspected and accuse persons, whether they ask for it or not, with the Letter of Rights in their language at the time of arrest. Police officers would have to keep letters in all commonly spoken languages in their locality, in electronic form so it can be printed where necessary. If there is no Letter of Rights available in the language of suspected or accused persons, they should be, orally, informed of their rights, in a language they can understand, and then the Letter should be given to them without delay.
Moreover, Brussels is trying to regulate how criminal evidence is disclose as the right to access to the case-file is also foreseen in the proposal. Such provision providing for access to the case file would have had a considerable impact in the UK. The Government has raised concerns over this provision, as the UK would have to change its law to implement it. In fact, Brussels should not be regulating over this issue. Member States have different legal systems and legal traditions and the present directive would have an impact on the structure of criminal proceedings as defined by each member state’s national laws, particularly in the UK. According to Kenneth Clarke, the Government was able to secure amendments to allow for both common law and civil law jurisdictions, accommodating the UK systems of disclosure.
Under the draft proposal, Member States would have to ensure that their police officers, prosecutors and judges receive the necessary training to perform adequately their obligations arising from the Directive provisions. In fact, the Commission wanted to impose a training obligation on Member States. But, the Government was able to change this provision so that member states should request rather than require training from those responsible for the training of judges, prosecutors, police and judicial staff. The Government was able to secure amendments to the draft text in order to ensure limited impact of the proposal on Member States administrative burden.
