Assise de la Justice Brussels, 21 & 22 November Presentation by Maura McGowan QC Chairman of the Bar Council of England and Wales

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1 Assise de la Justice Brussels, 21 & 22 November 2013 Presentation by Maura McGowan QC Chairman of the Bar Council of England and Wales Day 2 Towards a More Integrated European Area of Justice Based on Mutual Trust Criminal Law Thank you. It is a great honour to be invited, as a member and representative of the legal profession, to take part in such a high-level debate. Discussions on cross-border crime must always include victims and witnesses and those who are suspected or accused of having committed crime, whose rights and interests must also be protected. Police and prosecuting authorities have systems in place, both at national, and at EU level, through bodies like EUROJUST and EUROPOL, and measures such as the European Arrest Warrant, the Evidence Warrant and the future Investigation Order, to find witnesses and gather evidence. Victims have the protection of the State in bringing a case against an accused person for the crime committed, though there is still a long way to go amongst the Member States to ensure that all victims are properly protected, are able to give their best evidence in court, and are compensated for the loss and harm they have suffered. Suspects and defendants, by and large, have no such support, but must rely instead on the rights that are in place to protect them, and hopefully, the legal advice that they are given. The Bar of E&W gives its full support to judicial cooperation in criminal matters at EU level, based on the principle of mutual recognition. We are of course aware of the specific extensions of competence under the Lisbon Treaty, including for certain categories of serious cross-border crime; and in the pursuit of certain other EU policy objectives, but would not welcome any developments beyond those defined, that might have as their object or effect the undermining of the criminal justice traditions of the Member States. I will look at defence measures under three headings: 1. Specific EU measures for safeguarding the procedural and other rights of the defence; 2. Safeguarding defence rights in other EU instruments e.g. freezing and confiscation of assets; market abuse, and 3. Facilitating the defence case in cross-border matters e.g. gathering evidence, witnesses in cross-border cases. 1

2 1. Safeguarding the procedural and other rights of the defence A long-standing criticism of the criminal justice EU acquis is that prosecutorial measures, most notably the European Arrest Warrant, have been given precedence at EU level, but defence measures necessary to counter-balance them are still incomplete. The Bar of England and Wales has been among the many stakeholders actively supporting the Commission s efforts to redress that balance over the past decade. Most of the defence measures called for deal with rights that are already enshrined in the European Convention on Human Rights, but these have not necessarily found their way into Member State law and practice. Taking cases to court based on breach of defence rights is one possibility. But the better solution may be for those rights to be enshrined in the law and practice from the first contact with police, through the local courts and generally in any contact between ordinary citizens and the criminal justice system. Negotiations on the original Commission legislative proposal of 2004, which encompassed all of the key defence rights in one single Framework Decision, eventually failed in Council. The European Council s Stockholm Programme of 2009 called instead for the Commission to adopt a series of separate proposals for measures, the Roadmap of Defence Rights. It was thought that separating the rights into different instruments would provide a better chance of success. Though it has been slow, that approach has achieved 3 of the Roadmap measures: Measure A - the right to translation and interpretation in criminal proceedings Measure B - the right to a letter of rights. Measure C - the right of access to a lawyer and consular contact, recently adopted but not due for implementation until November This is the most crucial defence safeguard adopted so far. It deals amongst other things with the following: The right of (early) access to a lawyer for suspects and accused persons in particular: when deprived of liberty; before and during questioning; upon evidence-gathering; and prior to appearing in court. The principle of confidentiality of communications between the lawyer and the suspect or accused person; The right for a suspect or accused person to have a third person informed of his deprivation of liberty; The right for a suspect or accused person who is deprived of liberty to communicate with third persons and with his country's consular authorities; The possibility of making temporary derogations to certain rights in exceptional circumstances and under strict conditions only; The right for requested persons subject to a European Arrest Warrant to have 2

3 access to a lawyer in the executing state and to appoint a lawyer in the issuing state so called dual representation. We now await Measure D the right to legal aid. Having the right of access to a lawyer is all well and good, and indeed essential, but who is going to pay for it? This is likely to be the biggest challenge of all. In our jurisdiction, we have long recognised that Article 6 of the European Convention on Human Rights; the right to a fair trial, requires the state to provide legal representation in criminal cases. This is a complex matter. The Commission s preparatory work has revealed significant variation in the approach taken by the Member States: to have a means test or not; a merits test; emergency defence system and mechanisms to ensure quality and so on. Speaking as the Chairman of the Bar, a fair legal aid system is crucial to the effective administration of criminal justice. This is not just about money, but mechanisms for ensuring the provision of properly qualified, independent and skilled lawyers, who are able to fulfill their professional obligations with adequate means to support the work necessary to ensure an effective defence. Moreover, effective and efficient defence lawyers can assist by avoiding delay, lead to early guilty pleas, narrow the issues at any trial, and prevent miscarriages of justice, which prove costly to the state in terms of both reputational and financial damage. Other rights that are still awaiting EU action, some foreseen in the Roadmap are: Special Safeguards for Children and Vulnerable Persons; the Presumption of innocence and right to silence; and the application of the Ne bis in idem principle. We understand that some of these rights are to be included in a package of measures to be adopted in the coming weeks, and look forward to working with others here on them. We would also hope to see the Commission take forward the work foreseen in its recent Green Paper on the Right to Review the Grounds and conditions of Detention. Minimum standards in these areas continue to be vital to ensure the cross border criminal justice system adequately protects suspected and accused persons and affords a fair trial. Children and persons with disabilities find the courtroom a daunting and confusing place, compounding the pressure upon them to answer allegations. Suitable support is essential to ensure that they may properly defend themselves. Prison conditions across the EU, time and again are shown to fall short of the humane accommodation in which persons should be detained pending trial, and for periods far in excess of what ought to be deemed reasonable. The Commission s 2011 Green Paper on detention conditions did not deal with postconviction detention, so that is another area, along with alternatives to imprisonment, that could be the focus of future EU work. 3

4 4

5 Other defence rights? There can be no doubt that, particularly where a person is charged with, or has been convicted of, an offence committed in a country other than that of his or her residence, the various EU measures in place or planned, to allow that person to, say, await trial at home if appropriate, or serve out his or her sentence, particularly if non-custodial, there, provide significant advantages, not just to the defendant / offender him or herself, but for the smooth administration of justice as a whole. Here, I am thinking of, for example: The European Supervision Order Council Framework Decision 2009/829/JHA (OJ L 294 of 11/11/09) Transfer of sentenced persons - Council Framework Decision 2008/909/JHA (OJ L 327 of 05/12/08) Probation - Council Framework Decision 2008/947/JHA (OJ L 337 of 16/12/08) Mutual trust, as the title of this panel suggests, is the key to the success of mutual recognition, and the cooperation between national authorities that underpins the success of all of these instruments. To enhance mutual trust, it will also be necessary to provide support for training of all, from police through to judges in EU law, especially in the interplay between directives, the Charter and the jurisdiction of the CJEU. We also call on the Commission to take full advantage of the review procedures foreseen in these measures to attend to the difficulties that have been identified in the time that they have been operational. 2. Safeguarding defence rights in other EU instruments More consideration to defence rights must be given in new proposals for prosecutorial measures, and those that apply criminal sanctions in other EU policy areas. A couple of examples: The late 2011 Proposal for a regulation on insider dealing and market manipulation (market abuse) (COM(2011)0651) - where the principle of double jeopardy was of particular concern; The March 2012 proposal for a Directive on the freezing and confiscation of the proceeds of crime in the EU; The July 2013 proposal for the creation of the European Public Prosecutor s Office (currently the subject of the so-called yellow-card - subsidiarity challenge by 11 Member States). 5

6 3. Facilitating the preparation of the defence case A simple question illustrates the challenges for the defence - Can a defendant in Member State A have legal aid to instruct a lawyer or investigator in Member State B, to assist in evidence gathering? As I said at the outset, systems and networks are in place at both national and EU level to pursue the fight against crime. Suspects and defendants, by contrast, are largely left to their own devices, which in turn means that greater reliance has to be placed on so-called soft-law options informal networks of defence lawyers, such as the European Criminal Bar Association, providing, inter alia training and exchange of best practice; and facilitating greater understanding and therefore trust in each other s systems. We look to the Commission for funding of such activities, and to the Member States to facilitate the opportunities for their stakeholders to benefit from them. Increased development and use of e-justice tools, including, for example, vide-conferencing, provided sufficient safeguards are in place, to facilitate, for example, the examination of witnesses, including for the defence; service of documents; more on-line availability of legal texts and information for accused persons and their lawyers; and information to assist in identifying an appropriate lawyer in another Member State when necessary. 4. Other issues Although it may seem counter-intuitive at first sight, there are EU prosecutorial measures that could also alleviate problems from a defence point of view such as the review of the European Arrest Warrant and the complementary proposal for a European Investigation Order. They are both the subject of much current debate. All I will say today is that discussions around the application of the principle of proportionality in the use by Member States of the EAW; and the availability of the EIO which should avoid the misuse of the EAW to secure witness statements, would both be welcome developments from a defence point of view. The Charter of Fundamental Rights The Charter of Fundamental Rights, despite being adopted in 2000, only achieved equal legal value with the Treaties through the 2009 Lisbon Treaty. In the area of criminal law there are significant procedural protections of the right to a fair hearing, legal defence, legal aid, access to information and reasoning in proceedings against a person, the principle of legality and proportionality in sentencing to name but a few. There are also connected substantive rights - not to suffer ill-treatment, not to be detained without due process, and protection against discrimination in all its forms. The Charter offers a significant protection that the ECHR cannot give the power for national courts of their own motion to dis-apply legislation which is not in conformity with its provisions. The Member States and the EU Institutions must be mindful that the Charter applies in the area of criminal procedure and ensure it is respected in the adoption and implementation of all EU instruments. 6

7 Victims The UK has been in the vanguard of developments in this area over recent years, and the Bar has welcomed similar progress at EU level. Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims. Compensation is to be available in national as well as in cross-border situations, regardless of the country of residence of the victim or in which Member State the crime was committed. The directive creates a system of cooperation between national authorities for the transmission of applications for compensation in cross-border situations. Minimum rights, support and protection of Victims of Crime, gives parity of rights and protections to victims of crime throughout the EU, about 75 million annually. Member States have until late 2015 to implement into national law. The Directive will ensure that, in all 28 EU countries: victims are treated with respect and police, prosecutors and judges are trained to deal with them properly; victims get information on their rights and their case in a way they understand; victim support exists in every Member State; victims can participate in proceedings if they want and are helped to attend the trial; vulnerable victims are identified such as children, victims of rape, or those with disabilities and are properly protected; victims are protected while police investigate the crime and during court proceedings; victims have the right to reimbursement of expenses, for their property to be returned and to obtain a decision about compensation from the offender within a reasonable period of time. The 2012 European Protection Order, which complements the EU Regulation on mutual recognition of protection measures in civil matters, both extending the protection of injunctions to the territory of other Member States. In the Bar s response to the Victims Directive we asked for an extension to witnesses, who also need safeguards and protections in the giving of their evidence. It would ensure better evidence at trial for both the victim and defence. Next steps: The completion of the Roadmap of defence rights as well as measures laying down minimum standards for other defence rights already identified, as soon as possible, and in particular the adoption of a binding measure on legal aid; An EU measure to provide for remedies for when procedural safeguards are breached, or mutual recognition instruments are misapplied. The inclusion of appropriate defence rights in other EU instruments whenever there is a possibility of criminal sanctions being applied; 7

8 The review and if necessary amendment of existing criminal justice measures to ensure that the rights of the defence are properly reflected; The swift adoption or full implementation of measures such as the European Supervision Order, by all Member States, the Commission should take necessary steps to ensure that is the case; The Commission actively to police the implementation by the Member States of the measures already in place, and where necessary, to bring infringement proceedings; The reform of the EAW to reduce its misuse, and adoption of flanking measures such as the EIO; Funding for training and exchange of best practice between defence and other practitioners and legal professionals; and e-justice continuing investment and expansion. Institutional Appointment of judges to the Court of Justice of the EU (CJEU) with criminal justice experience and training for all CJEU judges who may preside in such cases, on criminal law; Ensure that Commission officials, so far as possible, who are drafting legislation in this field, not only have criminal justice experience, but are also drawn from the different legal traditions in the Member States. The Commission should make greater use of temporary staff to fill lacunae where necessary in order to achieve the right mix. 8

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