Proposed Directive on Right to Information in Criminal Proceedings: Motion

The purpose of this part of the meeting is to consider a motion on a proposal for a directive of the European Parliament and the Council on the right to information in criminal proceedings. A briefing has been circulated to members. I welcome the Minister for Justice and Law Reform, Deputy Dermot Ahern, and his officials. We will have a briefing from the Minister followed by comments, questions and answers.

I apologise for the delay. I was in Ballymun and was detained in traffic so I apologise to those who turned up earlier.

It may assist the committee in considering the motion if I start by setting out the background to the draft directive before dealing with the contents. This proposal aims to set common minimum standards for people's right to information about their procedural rights in criminal proceedings throughout the European Union. This setting of common minimum standards is with a view to increasing confidence in the criminal justice systems of all member states, which in turn should lead to more efficient judicial co-operation in a climate of mutual trust.

The proposal is measure B, the second in a series of six measures set out in the road map on procedural rights that was adopted in the Council in 2009. The road map requests the Commission to bring forward legislative proposals on the procedural matters listed. The first measure — measure A — a directive on the right to interpretation and translation, which Ireland opted into, was formally adopted in Council last week. I emphasise that the proposed measure is concerned only with the right to information. Its aim is to set a minimum EU-wide standard for information to be given to arrested and suspected persons about their rights in criminal proceedings. It does not affect any existing rights. In Ireland, procedural rules must satisfy not just the European Convention on Human Rights but the requirements of our Constitution.

This measure falls under Title 5 of the Treaty on the Functioning of the European Union and is subject to the terms of protocol 21, which provides that Ireland has three months from the date a proposal or initiative is presented to the Council to notify the Presidency of the Council in writing of its wish to take part in the adoption and application of any such measure. That period in respect of this proposal expires later this month. Ireland can also accept the proposal at any time after it has been adopted.

Members will be aware that Ireland declared its intention to opt into measures in the area of freedom, security and justice to the maximum extent deemed possible. It is desirable to opt into proposals at the earliest possible stage to maximise our ability to influence the development of the proposal through active participation in the negotiations. In the absence of any pressing reasons of a policy nature which would militate against an opt-in, wider considerations to do with Ireland's engagement within the EU suggest the desirability of active participation in negotiations on the proposal. We indicated as a declaration to the Lisbon treaty that we would opt into this area as much as possible.

I will now outline the main provisions of the proposal as presented by the European Commission. Members will appreciate that under the ordinary legislative procedure the Commission text will form the basis of discussions between the Council and the European Parliament. I would expect that in these discussions, while the broad aims will be retained, it is likely that the detail of the text will be amended to reflect the diversity of legal systems, particularly in the area of procedural law, throughout the Union.

Article 1 of the proposal sets out the objective of the directive as laying down rules concerning the rights of suspected and accused persons to information about their rights and information about the charge in criminal proceedings against them. Article 2sets out the scope of the directive and provides that the right to information applies to a suspect or accused person from when he is suspected or accused of committing a crime until the conclusion of the proceedings. Proceedings for the execution of a European arrest warrant are also explicitly covered. Article 3lays down the general principle that all suspected and accused persons in criminal proceedings should be informed about relevant procedural rights at the earliest possible moment in the proceedings.

Article 4 specifies member states' general duty to inform suspected or accused persons in writing about their procedural rights in cases where such persons are deprived of their liberty in the course of the criminal proceedings. Article 5provides that member states should ensure that persons subject to a European arrest warrant are informed, in writing, of their procedural rights in such proceedings as different rights apply to persons subject to a European arrest warrant. Article 6requires member states to ensure that once a person has been charged with a criminal offence, he or she should be given sufficient information promptly, in detail and in a language he or she understands, to enable that person to prepare a defence.

Article 7 provides that member states must allow a suspected or accused person, or his or her lawyer, access to the case file to allow him or her adequately to prepare defence at trial. Article 8provides that member states should establish a procedure to ascertain whether the person has received all the information to which he or she is entitled under the directive. Article 9requires member states to ensure that police officers, prosecutors and judges receive the necessary training to discharge adequately their duties arising from articles 3 to 8 of the directive. Article 10 is anon-regression clause which provides that nothing in the directive should interfere with any rights arising from the European Convention on Human Rights or the Charter of Fundamental Rights or other international law or any higher standard under the law of any member state. Articles 11, 12 and 13are standard articles in legislative measures dealing with implementation, reporting procedures and entry into force of the directive.

Annexes 1 and 2 contain an indicative model of the letter of rights to be provided to a suspected or accused person on arrest and to a person arrested on the basis of a European arrest warrant respectively. I commend the motion to the committee.

As a new member of the committee, appointed today, I respect what the Minister has presented. It is really about bringing us in line with other member states. When will we be in a position to adopt the proposal?

To a certain extent it is the other way around and we are bringing other countries into line with the modus operandi in our courts system. This is to provide minimum standards throughout the European Union and it would be accepted that under our system there is probably a more detailed procedure set out. There is considerable variation across the Union as to how information about rights is provided; in Scotland, for example, the information is contained on posters displayed in police stations and in Ireland and the UK, a relatively straightforward written notice is given to the person. In a number of eastern European countries, lengthy extracts from the relevant national legislation, running in one case to four pages, is given to the person. We are acceding to this because there is no problem and we already comply with more than the minimum standards required under the directive.

This is not a controversial measure and I welcome it. My impression is that our rights under the Constitution are probably higher than the test imposed by this directive. Nonetheless it addresses an important issue. Not very long ago I had an example of a constituent arrested in France and nine months later that constituent had not been made aware of the offence. His parents visited the prison, with great difficulty; on one occasion they were sent back because the necessary papers had not been cleared, although they eventually got to see him. Nine months later no charges were proffered, as the prosecutorial and investigative system in France is completely different. He was not told what the offence was.

The European Convention on Human Rights obliges criminal justice authorities to advise a person or suspect of the nature and cause of the accusation against him or her. As I understand it, the European Convention on Human Rights obliges criminal justice authorities to advise a person or suspect of the nature and cause of the accusation against him or her but it is not always done. I do not know how much of an improvement the directive will be. If a state authority can ignore the European Convention on Human Rights, can it ignore this directive? In addition, in circumstances of this nature there may be other questions and insuperable difficulties. If, for example, a person does not know the prevailing language there are language difficulties. Where there is considerable free movement of people between the 27 countries the incidence of some persons finding themselves arrested will be higher if they do not know their rights. Are they told their rights if they do not have the language? How is that managed? What happens in countries that already have a higher standard of protection than pertains here? Is it simply that the directive has no effective implication for them? When the Minister mentions the right to information of a person accused I presume he means a person who is arrested. In my experience and not only in the case I instanced, there have been cases of people arrested in a member state of the European Union who found great difficulty in vindicating their rights and getting access to the information contained in this directive.

This is non-controversial and I am happy to nod it through. It is not for us to seek to improve on it; that is done elsewhere. Our constitutional rights are probably superior in this jurisdiction, as it stands. Nonetheless, I welcome the motion because I have had practical experience of cases where there might have been improvement had it been in effect.

Most of us in public life would empathise with the case instanced by Deputy Rabbitte. I do not wish to single out a country but I have had a number of cases from France in which Irish citizens were arrested and there was great difficulty in finding out when and if they would be released. In one case I had great difficulty discovering where the person in question was and to which prison he had been taken pending charges. France is in the process of reforming its criminal legal system.

In this respect, the Commission has produced documentation. I refer the Deputy to memo 10/351 of 20 July 2010 which outlines right to information on criminal proceedings and frequently asked questions and gives details on how this directive would make a difference. It refers to specific cases, one concerning street disturbances during a major football tournament when nationals of EU member states were arrested with 13 others and whether they were given proper information about their rights.

Again, this refers primarily to written information and the standardisation thereof across Europe. The Commission document states that the letter of rights, the linchpin of this proposal, would promptly provide people with details about their right to a lawyer and to be informed of the charge and to have access, where appropriate, to the case file, interpretation and translation and to be brought promptly before a court following their arrest. As I stated regarding annexe 1, a standard letter was produced which is already being implemented in 12 member states. Germany produces it in 48 languages; the UK in 44; Sweden in 42; Austria in 20 with the Czech Republic offering only one. Ireland is not mentioned but I understand there is a system here whereby the Garda Síochána has access on its computer system to a multilingual letter of rights which can be proffered.

Our system of procedural rights has been well established for many years. The Judiciary has developed rules which have the status of law. These provide guidance in regard to taking statements. Obviously, there is the necessary caution given regarding the right to silence. When a person is taken into custody here there is existing legislation and custody regulation which govern their treatment. The information is given to suspects in Garda stations in written form by means of what is known as form C-72, which sets out the rights of a detained person to access to a solicitor, medical advice, consular assistance, visits and notification of the person's detention to a person named by him or her. It also sets out the investigative procedures that might take place during detention, such as the taking of fingerprints, photographs, bodily samples, searches and taking part in identification parades. The overriding safeguard for people is access to legal advice, which is sacrosanct. There is an onerous, legislative and constitutional duty on the prosecution side to give proper information to any person who is detained in this country.

The basic purpose of this is to have uniformity across the European Union especially now that there are 27 member states with different legal systems. It is difficult to have a common template across legal systems which are quite distinct. For example, where I live some of my constituents may have an involvement with the law on the other side of the Border and sometimes the way in which they are handled — I do not say this as a criticism — is somewhat different to the way they would be handled in the Republic. Sometimes that surprises people. One does not have to go too far to see differences, especially in right to bail and such issues which are treated differently. That is especially the case in France, for example, which has the right to detain people for much longer periods than would be possible in a state like Ireland.

I welcome the Minister. This motion seems straightforward, as other members have indicated. I have a couple of points to make on it. Suspects, or the accused, have the right to information. This is clear cut in the case of the accused; a charge has been made and the legal process is in train. I refer to the situation of suspects concerning whom the Minister stated there was a right to the case file. A person can qualify as a suspect prior to his or her arrest. Is there any situation whereby a person in that scenario would have rights at that early stage to access information which might thereby hinder that investigation or allow them create alibis, or whatever? I wonder is there a lacuna in that area.

Deputy Rabbitte touched on right to information. Must the information be in a language that is understood by the suspect or the accused?

The Minister mentioned two questions which are semi-detached from the directive. One related to the different legal systems which operate within the European Union. Is there any move or suggestion of a move towards a single legal system? The second point was along similar lines and concerned the rights of suspects or accused persons. Is any discussion taking place on the right to information for victims?

I refer to people who have been victims of the Troubles, such as those involved in the Dublin and Monaghan bombings. I and many others sat in this room for many months at public hearings and there was a failure to get any co-operation from the British side. Are there any moves towards correcting that lacuna? I support the general thrust of what is happening but there is a void on the other side in addressing information for victims. I referred to the Dublin and Monaghan bombings because of the high-profile nature of the case.

This directive is about access to the basic information to which a suspect would normally be entitled, such as access to legal and medical advice. The Senator referred to access to information. There may very well be information particular to an offence to which, ultimately, a suspect may be entitled, such as to see the book of evidence, which is the case in our system, but that is a long way down the road. The directive concerns the early stages of someone being taken into custody. There are different definitions in member states as to who is and is not a suspect. It depends on the system.

Everyone is innocent until proven guilty in our system and there is a very high threshold, namely, that someone must be found guilty beyond reasonable doubt. The type of information specific to the offence differs from country to country and legal system to legal system but this directive concerns the issue of access to advice. It is the basic information which would be regarded as normal in any democratic society.

On language, Article 4.3 states:

Member states shall ensure that when the suspected or accused person does not speak or understand the language of the proceedings he receives the letter of rights in a language he understands. Member states shall ensure that a mechanism is in place to convey the information to the suspected or accused person who is partially sighted or cannot read. Where the suspected or accused person is a child the information contained in the letter of rights shall be provided orally in a manner adapted to the child's age, level of maturity and intellectual and emotional capacities. Where a letter of rights is not available in the appropriate language the suspected or accused person shall be informed of his rights orally in a language he understands. The letter of rights in the language he understands shall be given to him without undue delay.

The last point the Senator raised was if there was a move to——

My other point concerned the rights of victims and if there is a move towards a single system.

No, there is not. It will not happen in my lifetime. It was for that reason that in the discussions running up to the Lisbon treaty it was decided by Government and accepted by the Oireachtas that we would not participate in the JHA moves and that we would, in effect, have an opt in or opt out choice, which is the best of both worlds as we can pick the clauses into which we want to opt. We have opted into this one. That was the advantage of the position we chose in the run-up to the Lisbon treaty. Our colleagues gave the United Kingdom and Ireland the option to opt in or out because it is understood that our systems are substantially different to the legal systems in other European countries. Our system is a classic Anglo-Saxon type of judicial system whereas the vast majority of member states in the European Union have a completely different style.

What about the rights of victims?

The Commission has produced documents on the minimum standards required for victims. We would go further than a number of European countries. Yesterday I launched research into the responses of victims and while there is good in it there are also lessons to be learned. We have set up the Commission for the Support of Victims of Crime which dispenses grants to NGOs and we passed legislation recently which was designed to tilt the balance back in the direction of victims.

The Garda Síochána has done excellent work over the years in providing liaison officers for victims as much as is possible and the research published yesterday shows that there is an increasing level of awareness that as part of a prosecution the victim's feelings and interests have to be taken into account, and it is not just a prosecution on behalf of the State, with the victim being an adjunct or witness. Procedures have to be properly explained to victims and that is why the Garda has liaison officers.

I thank the Minister for answering some of my questions. One question concerned a person who is illiterate. The Minister said such a person would be dealt with orally. I understand the Minister said there are provisions to help somebody who has a visual or hearing impairment.

In our mental capacity legislation as it currently stands — we are expecting the publication of a new mental capacity Bill — if someone has a mental capacity of the age of three or four and he or she is arrested or accused of a crime under the legislation, how does our current legislation fit with the human rights which are mentioned in the directive? I refer to the provision that people should be informed of their rights or the accusation made against them in a language that they understand. Our current mental capacity legislation, as I understand it, sidelines people with limited mental capacities, and even though they may have some mental capacity it is not at a certain level. Under our current legislation, the evidence of people with limited mental capacity may not be admissible in court. How does that square with the directive?

The Criminal Law (Insanity) Bill was before the Dáil yesterday and will move on criminal law in regard to people who have a mental incapacity.

On the directive, which is specifically about the right to information, as the Deputy may recall I said there were six steps in the road map and one of the additional elements of the road map which the Commission would bring forward would be the right to protection and special measures for vulnerable suspects. The directive will endeavour to have a minimum standard to protect vulnerable suspects across the European Union which ultimately would be dealt with by legislation in the respective member states. In Ireland we have substantial legislation which would protect suspects who have a mental incapacity. Ultimately it comes down to the assessment the Garda Síochána make on the occasion and, obviously, any legal representative present for the person.

Am I correct in saying the legislation before the House is different from the mental capacity Bill promised and that there are two different Bills?

The other Bill is being dealt with by the Department of Health and Children.

At present, people with low mental incapacity are not really recognised as such. There are difficulties. We are aware of court cases where their evidence is not allowed. I understood the new mental capacity legislation would help to address some of that issue. In this case, if a person of limited mental capacity is accused or arrested he or she must be given information in a language that he or she understands. How does that square with the present position in Ireland with regard to the lacuna that exists, given that the legislation is not published, let alone passed?

Ultimately, each case is decided on its merits when the Garda and the DPP are faced with a particular situation. If a file is produced, obviously they must have medical reports in respect of the accused person as to whether he or she is fit to stand trial and that is governed by existing legislation. One cannot be definitive across the board, every case is decided on its own merits.

This deals with explaining information about rights to people who have been arrested. If a person has a limited mental capacity, is there a provision to ensure that information will be presented in such a way that he or she will understand it, or is that a requirement?

That is the whole idea behind this, that the Letter of Rights should be communicated to any person, whether he or she is partially sighted, unable to read, or has a mental incapacity. If there is a difficulty in explaining that, it has to be taken into account and it may well be that the person may have to be represented. Given that everyone is entitled to access to legal advice, somebody would be employed to look after that person's rights and, obviously, there would be family members as well.

I thank the Minister for that information which is very useful. Did the Minister say the mental capacity Bill is the remit of the Department of Health and Children, not the Department of Justice and Law Reform?

Deputy John Moloney, Minister of State at the Departments of Health and Children and Justice and Law Reform, is primarily dealing with that legislation.

Which Department?

It is primarily the Department of Health and Children but it is also a criminal justice Bill. That is the reason a number of Ministers of State are assigned to a number of Departments, including the Department of Justice and Law Reform. For example, Deputy Barry Andrews is Minister of State at the Departments of Health and Children and Justice and Law Reform. Deputy John Moloney, Minister of State at the Department of Health and Children, has special responsibility for mental health in that Department. He is also a Minister of State at the Department of Justice and Law Reform but is resident in the Department of Health and Children, the reason being is that these issues are cross-departmental.

With respect, this is not a mental health Bill, it is a disability Bill. Which is the lead Department?

Deputy Stanton raised the issue of mental health. The lead Department in regard to disability is the Department of Health and Children but it is also dealt with by a number of other Departments, including the Department of Justice and Law Reform.

We welcome the directive and the idea that there should be a minimum floor of procedural rights for those who are suspects or accused in criminal proceedings. As others have said, Ireland has a better tradition of protection of rights of suspects than many other European countries. Other colleagues have talked about the difficulties for suspects in France. The hope is that Irish rights for suspects would not be diminished by this directive because in some respects we have a better tradition of constitutional rights protection.

The directive gives us potential to look at areas where we have not reached the best practice standards of elsewhere. Senator Jim Walsh mentioned the rights of victims. Certainly the right of victims to information would be much less well developed in Ireland than in countries such as France. When does the Minister expect that directive, which is part of the road map as I understand it on the rights of victims of crime, and what are its implications for Ireland?

In respect of this directive, there is one area where there might be changes to Irish procedures. Others have focused on the notice of rights given to suspects on arrest and on arrival at a Garda station, in practice where they get their notice of rights. We already have that procedure in place. Articles 7 and 8 deal with the right of access to a case file. We need to ensure our procedures match up to the minimum standards required. Article 7 provides that the person should be granted access to documents in the case file which are relevant for the determination of the lawfulness of the arrest or detention. Is the Minister satisfied that we are currently meeting that rather limited requirement and does he consider that we are meeting the requirement inArticle 7.2 which provides that the accused person and his or her lawyer is granted access to the case file once the investigation has concluded? I am conscious that we are meeting that requirement in respect of indictable offences, where the Book of Evidence is supplied, in Circuit Court and Central Criminal Court cases. Is Article 7 applicable at District Court level and, if so, is it not the case that we must change our procedures to ensure persons facing trial before the District Court are granted access to their case file. Article 8, provides for an effective remedy in instances where they do not receive the information? It seems to me, subject to what the Minister says, that is one area where we may not be matching the standard of the directive.

On the matter of procedural rights and a finding against Ireland in the European Court of Human Rights in Heaney and McGuinness v. Ireland, in respect of the right to silence — a matter that is not dealt with directly in this directive — are the provisions of section 52 of the Offences against the State Act, which were condemned by the European Court of Human Rights, still on the Statute Book, and, if so, could there be a difficulty in terms of future developments of the road map on rights of suspects? However, these are minor points and I welcome the idea of developing this minimum set of standards.

With regard to the question of whether existing rights will be diminished by this directive, Article 10, a non-regression clause, reads:

Nothing in this Directive shall be construed as limiting or derogating from any of the rights and procedural safeguards that may be ensured under the ECHR, under the ICCPR and under other relevant provisions of international law or under the laws of any Member States which provide a higher level of protection.

I suggest that article takes care of any suggestion that a number of member states might be required to dumb down their procedural rights because of this directive. That is not the case.

Victims are not part of the road map in this respect. This is procedural rights in respect of accused or suspected persons. The initiative from the Commission is being brought forward in parallel to this directive. I do not have any fine details but we are happy to participate in any initiatives to make life easier for victims. It is an area to which I have given particular attention since becoming Minister with a number of initiatives including the Criminal Procedure Act, the setting up of the Victims of Crime Office in my Department, staffed exclusively by officials whose job is to liaise with victims groups and to provide information to victims.

The Commission for the Support of Victims of Crime, which is a separate, independent advisory body to me, also dispenses resources given to it by the Department to NGO groups who look after the interests of victims of crime.

Regarding Articles 7.1 and 7.2, Article 7.1 refers to access to those documents contained in a case file which are relevant for the determination of the lawfulness of the arrest or detention. I am advised that access to the case file is not a concept known in Irish law or in the law of a number of other member states. However, we comply with the objective of that provision by way of statutory and constitutional duty in the prosecution of criminal cases to make material available to the defence. This particular provision would appear to equate with our habeas corpus procedure and, as such, should cause no difficulty. As we move on, therefore, the text can be clarified in the course of the negotiations to reflect that type of different legal system across member states. Article 7.2 refers to access to the case file when the investigation is concluded. Access to a case file is not a concept known to our law. The investigation of offences is carried out by the Garda Síochána and the decision to prosecution is then made by the Director of Public Prosecutions, DPP. It would not be appropriate to disclose the Garda file.

The position is different in many civil law jurisdictions. This is a matter which again must be clarified in the course of negotiations to reflect our type of legal system as opposed to that in some of the other member states in civil law jurisdictions.

On the issue of access to information at District Court level, that is dictated to under a Supreme Court decision, the Gary Doyle orders case, which I believe sets out what is required in that respect.

The Minister might clarify that if the text remains as it is in Article 7.2, we would have to change our procedures.

That text probably will change and evolve. The point of opting in over this period is to influence the final outcome of the document. It is the same for any other opt-in as it gives us an opportunity to be part of the negotiations with a view to influencing the final outcome of the document.

In terms of all of these cases, when I go to Justice and Home Affairs meetings, in the civil and criminal area I always have to refer to the fact that we, the United Kingdom, Malta, to a lesser extent, and perhaps Cyprus have different legal jurisdictions to most of the rest of Europe.

I think the answer is "Yes" if it were to stay the same, even though as the Minister said it will probably not.

I would envisage that it would have to change to reflect our position, although there might be a clarification.

Thank you, Minister.

As we have completed our consideration of the motion, in accordance with Dáil Standing Order 87 and Seanad Standing Order 72, the joint committee will report back to Dáil Éireann and Seanad Éireann to the effect that it has completed its consideration of the motion. Is it agreed there should be no further debate on this matter by Dáil Éireann and Seanad Éireann? Agreed. I thank the Minister and his officials for attending, and the members of the committee for their co-operation.