EU criminal law: a full programme

There are many descriptions possible for justice commissioner, Viviane Reding. I have seen her criticised in the press as the Commissioner for Self Promotion. But, on the basis of her criminal law programme, it will have to be the Commissioner for Getting Things Done. Judge for yourself.

She launched earlier this year an initiative to establish a European Public Prosecutor’s Office (EPPO). It aims at harmonised prosecution of fraud involving the EU’s financial interests, through the EPPO’s exclusive competence to prosecute such fraud at national level. The initiative has led to a rare ‘yellow card’ protest by national parliaments: 14 expressed critical concerns, and 11 issued a reasoned opinion against it on the grounds of infringement of subsidiarity.

Of course, the UK is among the critics. Commissioner Reding has denied there is a breach of subsidiarity. She points out that the EPPO is explicitly called for by Article 86 of the TFEU (post-Lisbon Treaty), and she will doubtless proceed anyway on the basis of enhanced cooperation, which allows nine member states to go forward when there is no unanimity. However, opponents have already said that it is a strange state of affairs were she to proceed with a limited group of countries, since the aim is to implement EU-wide standards.

She has fought in the past to ensure that there are minimum EU procedural safeguards for suspects and defendants (there are more than nine million criminal proceedings in the EU every year). She has seen through the right to translation and interpretation, the right to information, and (just recently) the right to access to a lawyer.

A few days ago, a new round of measures was published to complete this opening package. Five documents were launched at the same time: three directives and two recommendations. It is too soon to provide a detailed critique, since they must be examined carefully.

The one which attracted most pre-publication attention is the last in the list, the recommendation on legal aid. Many were hoping for a directive and not just a recommendation, but the member states put up a fight at at time of austerity.

When you read the list, you might wonder what benefits it will bring the UK. The rights available to our criminal suspects and defendants are already high. But UK citizens go abroad, and there are regular tabloid complaints about how our British lads and lasses are abused in foreign legal systems. Now all EU member states will have the same basic criminal standards. So here is the package:

The first directive strengthens the presumption of innocence and the right to be present at trial in criminal proceedings, with guarantees that (1) guilt cannot be inferred by any official decisions or statements before a final conviction; (2) the burden of proof is on the prosecution and any doubt is for the benefit of the accused; (3) the right to remain silent is guaranteed and not to be used against suspects to secure conviction; and (4) the accused has the right to be present at the trial.

The second directive has safeguards for children suspected or accused of a crime, to make sure that they have mandatory access to a lawyer at all stages. Children will not be able to waive their right to a lawyer, as they might not understand the consequence of their actions. They will also have other safeguards, such as being promptly informed of their rights, being able to be assisted by their parents (or other appropriate persons), not being questioned in public hearings, having the right to receive medical examination, and being kept separate from adult inmates if deprived of liberty.

The third directive focuses on the right to provisional legal aid at the early stages of criminal proceedings, when suspects or accused are particularly vulnerable, especially if deprived of liberty. It will also guarantee legal aid for people arrested under a European Arrest Warrant.

The first recommendation concerns procedural safeguards for vulnerable people (for example those suffering from physical or mental disabilities) who are suspects or accused. There will be special safeguards, such as mandatory access to a lawyer, assistance by an appropriate third party or medical assistance.

The second and final recommendation is on the right to legal aid for suspects or accused in criminal proceedings, providing common factors to take into account in the assessment of the right to legal aid, and ensuring the quality and effectiveness of legal aid services and administration. Interestingly, for all the criticism it has attracted in advance for its weak impact, the standards it outlines could be extremely useful in national fights over legal aid cuts.

So, maybe she should be renamed the Commissioner with a Low Boredom Threshold.

Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs