More rights for the individual… or the EU?
Civitas, 26 October 2010
In a written ministerial statement, the Justice Secretary, Ken Clarke announced yesterday that the Government has decided to ‘opt-in’ to the European Directive on the Right to Information in Criminal Proceedings. Whilst its central, rights-enhancing tenet may be laudable, the directive represents a worrying creep of European control into domestic criminal procedure, and is the first of a catalogue of similar measures the Government is now politically obligated to adopt, writes Carolina Bracken.
When agreed and in force, the directive will ensure that those arrested within the EU are guaranteed minimum standards of information about their rights. Information must be delivered ‘promptly’ (Article 3), in a written ‘Letter of Rights’ (Article 4.1) and ‘in a language he understands’ (Article 4.3).
The Ministry of Justice has presented the decision as a move to bolster civil liberties ‘even beyond our own borders‘, and has consequently won wide support from rights advocates. Director of Liberty, Shami Chakrabarti applauded the directive as an example of the EU ‘enhancing rather than diminishing fundamental rights’, and Jago Russell, Chief Executive of Fair Trials International (FTI), was ‘delighted’ at the news. ‘Every week FTI is contacted by people arrested abroad who have received no information on their basic legal rights or the case against them’, he continued. ‘This new law is an important step towards protecting core defence rights across Europe.’
However, this praise has not been universal. Conservative MP James Clappison , a member of the Commons EU Scrutiny Committee, has recognised the extent to which the directive further undermines the UK’s control of home affairs, and represents ‘another step along the road’ towards creating a common EU justice system.
Indeed, this directive is the second in a series of measures, the first of which guaranteed a right to interpreting and translation. Whilst the substance of these proposals is largely innocuous, further laws are expected under the ‘Stockholm Programme’, the five year legislative plan for EU justice and home affairs, adopted in December 2009. This programme will cover issues as varied as the right to legal advice and legal aid, safeguards for vulnerable suspects, and a review of pre-trial detention practices, restricting and manipulating the scope and content of UK criminal procedure. The UK has already opted in to the European Investigation Order, the sibling of the European Arrest Warrant, which sets out common EU rules relating to the collection and transfer of evidence. Although Mr Clarke only recently signed the second directive, it seems the UK has long been politically committed to these measures.
Whilst the UK can choose whether to participate in Justice and Home Affairs measures on a case by case basis, once it has decided to opt in, there is no right to opt out, whatever the conclusion of the negotiations. The Article 82(3) ‘emergency brake’ would effectively impose a veto until consensus could be reached; however, it applies only to draft directives establishing minimum rules on criminal proceedings. The aim should be to rewrite the document, not to amend a specific provision.
The content of these proposals is relatively uncontroversial. Indeed, foreign nationals arrested in England and Wales already receive a ‘notice of rights’ in one of 43 languages. Germany produces the letter in 48 languages, Austria in 20. However, detainees are informed about their rights only verbally in six EU countries, including France, Denmark and Greece. The closer approximation of Member States’ procedural rules will benefit UK citizens abroad, but only if this convergence tends towards the highest norms. A blind, blanket harmonisation as envisaged by Brussels risks adversely skewing the common standard. Indeed, Member States can draft their own ‘Letter of Rights’. The EU Commission has proposed an indicative model letter, yet there is no obligation to adopt this format or wording. Moreover, the draft directive does not create the rights documented within the Letter; the Member States’ obligations arise from the European Charter of Fundamental Rights and applicable EU legislation. The only right the directive does explicitly establish, the right to information about rights, can be inferred from the European Court of Human Rights case law.
There is specific provision for the European Arrest Warrant within the proposal. Any person subject to such proceedings must receive an appropriate, tailored Letter of Rights informing them of their rights, including the right to know why they have been arrested and the right to legal advice. The European Arrest Warrant stands as a botched and hurried response to the perceived terrorist threat at the beginning of the last decade, removing political discretion in cases of extradition. However, in the wake of some gross injustices that have eventuated under this system, the Letter of Rights provisions seem too little, too late.
Echoing Article 82(2) TFEU, on which the proposal is based, the Commission has stated: ‘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.’
However, the rules are likely to impact upon purely national cases, even national cases involving non-EU citizens. Whilst the exclusion of particular groups of suspects from enhanced rights protections is arguably dangerous and unacceptable, the manner in which the Commission has casually embraced such an expansive interpretation of the Treaty gives cause for concern. Individuals receive a higher level of rights guarantees; however, the EU is also given a higher degree of influence over a higher number of cases. As legal commentator, Carl Gardner, has noted: ‘The principles of subsidiarity and proportionality – whether the EU really needs to regulate every arrest on a Saturday night in Kingston Bagpuize or Kleindorf – have as so often received word-processing service, rather than being taken seriously.’
In a sad irony, the UK had previously resisted these very measures. In 2004, the European Commission proposed a draft framework decision on procedural rights in criminal proceedings. However, a number of Member States, including the UK, rejected the Commission’s chosen legal basis, Article 31(1)(c) EU, certain that the EU had no competence to legislate on purely domestic proceedings with no element of judicial cooperation. The Commission subsequently adopted a proposal for a Council framework decision addressing only the right to interpretation and translation. Although this ‘step by step’ approach rested on the same legal basis, the Government accepted the instrument. Furthermore, last year, the Government backed the ‘roadmap’ for procedural rights , set out by the Justice and Home Affairs Council, supporting further EU encroachment into procedural safeguards.
Masked by a cloud of promising rights discourse, it seems counter-intuitive to object to a measure seeking to enhance protection for vulnerable citizens in an unfamiliar environment. However, the directive is in fact the replacement for a programme that was unacceptable just six years ago. What was indigestible as a whole has simply been broken down into more palatable pieces. The dangers lie not so much in the directive itself, but in what its adoption means for the independence of the UK criminal justice landscape.