Case for the defence

One of the EU’s top priorities is the fight against organised crime and cross-border criminal activity. However, this is an issue that goes to the heart of a state’s sovereign powers, and while EU countries have committed to working together in this field they wish to retain a certain amount of control over how they administer their criminal justice system.

As a result a complicated compromise has developed in this field, which is often referred to as the “third pillar” of the EU, as provided for under the treaties. Rather than dealing in regulations or directives, criminal law instruments are known as framework decisions. These must be adopted unanimously by all member states in Council before entering into force. Moreover the democratically-elected European Parliament has no final say on the legislation and can only issue a non-binding opinion.

Like directives, EU criminal law measures must be implemented into national law before they take effect. This is technically the UK’s responsibility as the member state, but when measures fall within devolved competence Scottish ministers will usually assume this role. If the Lisbon Treaty takes effect early in 2010, as is increasingly likely following the strong “yes” vote in Ireland, the use of framework decisions would be abolished, with regulations and directives becoming the main EU legislative measures across the EU. The significance of this development would, however, be tempered by an extension of the UK’s existing opt-out from asylum, immigration and civil law legislation, to include all future criminal legislation. The UK will then be able to opt in to such legislation on a case-by-case basis.

Procedural rights

Since 1997 a number of instruments have been adopted regarding criminal measures, the most visible being the European arrest warrant. However, these have been primarily concerned with facilitating co-operation in the prosecution of crime, and therefore calls for the introduction of procedural safeguards have increasingly been made as a counterweight to this apparent bias.

The Commission originally made a proposal in 2004 for a measure containing a number of minimum standards on procedural rights for defendants in criminal proceedings. However, it was abandoned in 2007 after three years of wrangling, with the UK being one of the main opponents of such a measure, citing fairly vague concerns about the lack of adequate legal base in the treaties as the reason. The Lisbon Treaty responds to this concern by amending the treaties to give the EU an express mandate to effect the “approximation of the rights of individuals in criminal procedure”.

It was clear, therefore, that the proposal would be revisited and on their first day in the Presidency of the EU, the Swedes published a “roadmap” on 1 July 2009 which sets out the six measures which originally formed part of the 2004 proposal, which are intended to be adopted on a step-by-step basis. They are rights to: translation and interpretation; a “letter of rights”; legal aid and legal advice; communication with relatives, employers and consular authorities; safeguards for vulnerable persons; and to review the grounds of detention. The UK is reportedly now more relaxed with this compromise approach so is likely to support each measure as it is developed in Council.

The protection of the procedural rights of the accused is mainly derived from the European Convention on Human Rights (ECHR), to which all 27 EU member states are signatories. Why then is there any need for additional measures? The Commission cites the variance in adherence to ECHR norms among member states as one reason, and therefore the reproduction of these rights, in an enhanced manner, is considered necessary within EU law. Another key factor is to address the perceived lack of mutual trust between member states regarding the level of protection that each state awards to an accused in criminal proceedings.

On a more practical basis, the number of crimes with a cross-border dimension has increased significantly as a result of greater EU integration and free movement of peoples, and therefore the problem with suspects and accused not understanding their level of rights, as well as potentially not being able to understand the proceedings to which they are subject, needs to be addressed.

Right to interpretation and translation

Considered to be the least controversial measure, on 8 July 2009 the Commission published the first proposal from the roadmap, for a framework decision to set common minimum standards as regards the right to interpretation and translation in criminal proceedings. It aims to ensure that suspects are entitled to interpretation at all stages of the procedure, from when they are informed that they are a suspect until the proceedings are over, including any appeal. They would also be entitled to have any essential documents in the proceedings translated in order that they can fully understand the case against them.

Article 6(3) ECHR already entitles anyone arrested or accused of a criminal offence to “be informed promptly, in a language which he understands” about the nature of their detention or charge. Subsequent European Court of Human Rights case law has also confirmed that such interpretation should be provided free of charge. Scottish practice currently involves an interpreter being identified, if required, at the police station, who will then be present at all subsequent court appearances.

In order to ensure the quality of the interpretation and translation, the measure also obliges member states to train judges, lawyers and court staff to ensure that the suspect will be able to understand the proceedings. In a Scottish context, the recently published Code of Practice for Working with Interpreters by the Working Group on Interpreting and Translation contains various provisions for such training.

Therefore, on first sight, this measure is unlikely to have any significant effect on Scots law. However, the entitlement of the accused to receive translations of all “essential documents”, such as the charge sheet and documentary evidence including key witness statements, in order that they can fully understand the case against them, could present practical difficulties. Despite the imminent creation of statutory disclosure, the introduction of a requirement to translate all “material information” could lead to further procedural delays when the Criminal Justice and Licensing (Scotland) Bill is arguably seeking to eradicate delay.

The Council is hopeful that it can adopt this measure quickly. However, even if it is adopted in early 2010, the two year implementation period usually allowed to transpose such measures would mean any required changes would not be made to Scots law until 2012 at the earliest.

The “letter of rights”

It is proposed that those detained or arrested should receive information about their basic rights in a language that they understand, ideally through a “letter of rights”, as well as information about the nature of the accusation against them and all other necessary information for the preparation of their defence. The original 2004 proposal required that these rights should be provided in writing and that copies in all official EU languages should be held at the police station to ensure effective service.

A letter is currently appended to every summary complaint, solemn petition and indictment in Scotland, which sets out the charge and also explains the right to a lawyer, the right to legal aid and the right to an interpreter if required. Therefore, any measure that is adopted may require this letter to be made available in multiple languages as well as the provision of similar written materials to the suspect prior to the charge. The right to receive information necessary for the preparation of the defence is tied into the above disclosure point, which is also likely to satisfy compliance in this regard.

Right to legal aid and advice

Article 6(3) already entitles the accused to defend themselves through legal assistance of their own choosing and when they do not have sufficient means, to receive that assistance free in the interests of justice. By virtue of s 22 of the Legal Aid (Scotland) Act 1986, criminal legal aid is made available to every accused person before and during the early stages of a solemn or summary prosecution. Thereafter, in practice, most applications for further legal aid will be granted.

Section 17 of the Criminal Procedure (Scotland) Act 1995 entitles an accused immediately on arrest to contact a solicitor or consult a duty solicitor or public defender, and to have a private meeting with them before appearing in court. However, an individual detained at a police station only has the right to inform their solicitor of their circumstances, rather than have them present during police interviews. The ECHR also makes this distinction in terms of entitlement and the right to legal assistance, and the 2004 proposal did not seek to change this.

The Court of Criminal Appeal recently ruled on a challenge to this position taken as a result of Salduz v Turkey [2008] ECHR 36391/02, which held that there had been a violation of the applicant’s right to a fair trial as he was denied legal assistance while in police custody, where he made a confession which he later claimed was made under duress. The court rejected the challenge, but a decision as to whether leave to appeal to the Supreme Court will be granted awaits the publication of the reasons for the ruling. As a result of all this, the introduction of any measure containing such rights is unlikely to necessitate changes to Scots law as it currently stands.

Right to communication

Section 15 of the 1995 Act entitles those detained and arrested to inform their solicitor and one other person, which could of course include relatives, employers and consular officials. The same provision also entitles individuals under the age of 16 to have their parents informed and for them to be involved in proceedings from then on. In practice, the accused will usually contact their solicitor, who would in turn contact the necessary other people.

Article 36 of the 1963 Vienna Convention on Consular Relations provides the accused with the right to contact consular authorities. However, while the UK is a party to the Convention, the Consular Relations Act 1968 only incorporated certain provisions of the Convention into UK law and this does not include article 36. Therefore it is likely that such a measure would require amendments to be made to the 1995 Act, as well as to the 1968 Act for the UK as a whole.

Safeguards for vulnerable persons

It is not necessary to consider Scots law compliance with this point beyond noting that the recent measures introduced under the Vulnerable Witnesses (Scotland) Act 2004, which applies to both children and adults (including suspects), should ensure a high degree of compliance, through the provisions for television links, screens and the use of supporters, among other measures.

Review of grounds of detention

The last proposal under the roadmap does not foresee another legislative proposal in the short term, but instead suggests that the possibility of establishing a right to periodical review of one’s detention may be examined through the publication of a green paper. This means that the adoption of a proposal in this area will be some years in the future, but in any event the right is already protected under article 5(4) ECHR and is also provided for under Scots law through s 65 of the 1995 Act.

Other EU criminal developments

A number of other instruments, some already adopted and others in the pipeline, also fall within the devolved sphere of competence and will need to be implemented over the next few years. The European evidence warrant (EEW) must be introduced by 19 January 2011. It seeks to allow a judicial request to be made for evidence from another member state for use in criminal proceedings: essentially a fast-track evidence transfer system.

In England & Wales the Home Office has indicated that the defence, as well as the prosecutor, will be able to apply to the court for an EEW. Therefore, it is hoped that any changes to Scots law will also make the EEW available to the defence in order to ensure equality of arms between defence and prosecution. 

Looking further ahead, the Stockholm Programme is due to be agreed by the European Council later this year. This will set out intended justice and home affairs policies from 2010 to 2015. It is likely to contain a number of measures which may have significant impacts on EU citizens’ fundamental rights, including the increased sharing of personal data between member states’ and EU law enforcement agencies, in order to combat serious crime and terrorism. Alongside the procedural proposals discussed above, these instruments will ensure that the corpus of EU criminal law will expand considerably over the next few years, even if their ultimate domestic effect is not immediately obvious in member states.

Michael Torrance qualified as a solicitor while on secondment to the Law Societies’ Joint Brussels Office and recently started working for the House of Lords EU Select Committee.

Any views expressed in this article are the author’s own and do not in any way reflect the views of the Law Society.