How far, and to what extent, should the EU involve itself in criminal law developments?

The answer to this will depend on your attitude to the EU itself. We have heard the arguments raging in the media over the last week or two. For those who answer ‘less, less!’, I attended an interesting meeting this week which gives ammunition to the ‘More, more!’ side - on the grounds of ensuring basic safeguards for UK nationals in criminal cases elsewhere in the EU.

The meeting was a Justice Forum, bringing together all stakeholders in the justice sector at EU level: judges, prosecutors, lawyers, notaries, bailiffs, translators and interpreters, victims’ representatives, human rights NGOs, academics, MEPs, plus government representatives. (I will pause here to ask anyone who has the ear of the Ministry of Justice to scream into that ear: why cannot we have a Justice Forum in the various jurisdictions of the UK, bringing together similar stakeholders, to discuss justice topics? It is a wonderful idea, and should be instituted as part of better law-making in the UK.)

The topic was the minimum procedural safeguards for suspects and defendants in criminal cases. The potted history runs as follows. The European Commission proposed a package of such safeguards several years ago, the European Parliament supported it, but some member states – including the big, bad UK – opposed it. Now the current Swedish presidency has revived the package, but instead of going ahead with all the safeguards at once, they are going to be salami-sliced, taking each of the safeguards one by one. So, we have started with the right to interpretation and translation, which is considered to be the most uncontroversial, and on which the Council of Ministers came to an agreement last month. Next will come the right to a letter of rights, and then the right to legal advice and legal aid. (You probably don’t want to hear that the Lisbon Treaty will complicate matters by introducing a new decision-making method as from the beginning of next month, which could well send the whole process back to square one.)

A sophisticated supporter of ‘less, less!’ will say at this stage that there is no need for the EU to meddle in such a package, since these rights are guaranteed under the European Convention of Human Rights and enforced by the European Court of Human Rights in Strasbourg. To which a sophisticated supporter of ‘more, more!’ will point out that the Strasbourg court is not so much a court of final appeal in individual cases, but more by way of a judgement of systemic failure. In any case, it is so overwhelmed with cases that it hardly gives satisfaction in individual criminal matters; an EU directive would therefore be far more effective in ensuring that rights are complied with in the member states, and in giving individuals rights which can be enforced in a timely fashion in national courts.

The presentations at the Justice Forum gave an alarming picture of the uneven nature of basic rights in EU member states. For instance, only 10 member states have a letter of rights, and in only one of those states does the letter inform suspects of their right to contact a lawyer after arrest. The letters of rights themselves vary from dense recitals from the Code of Criminal Procedure (described by the presenter as no better than wallpaper) to the most acclaimed of the letters – that of the UK, which is translated into 43 languages and available not only in writing but in audio. In 20 member states, the right to remain silent is not communicated in writing at all, but only orally, and in two member states there is no statutory right to silence. On and on the varieties go …

None of this comes alive until you hear about a particular case – and a case involving a UK national in another member state was mentioned by two participants. This is the case of Andrew Symeou, which highlights concerns about basic procedural safeguards, and is being pursued by Fair Trials International. It is worth reading about it further, to see what is at stake in the debate.

I do not suppose that the UK will have to do much in relation to its own criminal procedures to bring them up to the basic standards. And the introduction of minimum safeguards will work to protect UK nationals in other parts of the EU. So, which side are you on: less or more?

Jonathan Goldsmith is the secretary general of the Council of Bars and Law Societies of Europe, which represents more than 700,000 European lawyers through its member bars and law societies