Procedural rights in Europe – getting left behind

Professor Ed Cape is doubtful about the coalition government's commitment to important European Union protections intended to promote fair trials and the rights of suspects.

By: 
Ed Cape
Date: 
Monday, 09 December, 2013

On Wednesday 27 November 2013 Vivian Reding, the European Union Justice Commissioner introduced a new package of procedural safeguards for suspects and accused people in criminal proceedings.

The plan is to introduce EU legislation (which would be binding on member states) to strengthen the presumption of innocence, to guarantee minimum safeguards for children suspected or accused of crime, and to introduce a right to legal aid for those who are deprived of their liberty.

In addition, the plan is to make non-binding recommendations regarding procedural guarantees for vulnerable suspects and accused persons, and on the availability of legal aid and the quality of legal aid providers.

This programme of action is part of what is known as the procedural rights ‘roadmap’, which was adopted by the EU in 2009. The rationale for the ‘roadmap’ was set out as follows:

‘a lot of progress has been made in the area of judicial and police cooperation on measures that facilitate prosecution. It is now time to take action to improve the balance between these measures and the protection of procedural rights of the individual. Efforts should be deployed to strengthen procedural guarantees and the respect of the rule of law in criminal proceedings, no matter where citizens decide to travel, study, work or live in the European Union’

In other words, having introduced a range of measures to improve co-ordination of policing, crime investigation and prosecution, and to support mutual recognition of judicial decisions and judgements across the EU, it was necessary to ensure that these were matched by procedural safeguards for those who may be caught up in the criminal process. For example, if a European Arrest Warrant is to be enforced against a person residing in another EU country, there must be confidence that the person will be treated fairly when they are transferred to the requesting state.

So what has been the attitude of the coalition government? After all, one of the coalition’s priorities was to ‘Protect people’s freedoms and civil liberties’. The previous government had negotiated an opt-out arrangement in the Lisbon Treaty under which the UK government is not automatically bound by EU legislation in the area of crime and justice. The government did opt-in to the Directive on the right to interpretation and translation, but perhaps as an indication of its lack of enthusiasm, it did not introduce regulations in order to comply with it until the very last possible day. It also opted-in to the Directive on the right to information, but not in to the Directive on the right of access to a lawyer.

The government’s reaction to the new package is yet to be made known, but given that the decision not to opt-in to the Directive on access to a lawyer was largely a political one, I’m not holding my breath.

Ironically, the current framework in England and Wales for protecting the procedural rights of suspects was introduced by a Conservative government led by Margaret Thatcher in 1984. Since then, no government has expressed any interest in fair trial rights. You will look in vain for any mention of procedural safeguards, or fair trial, in the current Business Plans of the Home Office or Ministry of Justice. Government policy is directed at closing courts and decimating legal aid, and when the term ‘justice’ is deployed, it is always preceded by the word ‘efficient’, thus depriving it of any meaning.

The British Government could have played a positive role in improving criminal justice standards across Europe. Despite everything that recent governments have done to weaken our justice system, there is still a great deal of respect for our approach to testing evidence, standards of advocacy, and to ensuring the availability of lawyers to advise suspects in police detention.

The negative attitude to fair trial rights in the EU context, and the attacks on legal aid and lawyers, is undermining that respect.

How long will it be before a judge in another EU country refuses to transfer a person to the UK under a European Arrest Warrant (I forgot to say, the government wants to keep that one!) because our standards of justice do not meet those of the rest of Europe?