Thank you, Chairman. I thank the committee for the invitation to come here today to discuss the Green Paper on procedural safeguards. I note that I am of course precluded from expressing an opinion on the merits of the policy of the Minister, the Government and the Attorney General. In terms of what I intend to do, because the main issue is one of competence and because the Minister has certain views in terms of the approach which the Commission is taking, I would like first to explain the Minister's thinking in that respect. Second, I have provided in the notes circulated more detailed comments on the five areas concerned, on which the Commission is focusing. In the time allowed I will not be able to deal with those areas in detail, but I have given more information in the speaking note. I will try to touch on one or two main points in each area and if there is anything I have not covered, perhaps members will ask me about it.
The committee is aware that the Minister does not believe that there is EU competence in the area of the approximation of criminal procedural law. I will comment on his thinking on that shortly. He also believes that the philosophy underlying the Green Paper, which advocates a level of uniformity on the presumption that it is a good thing in itself, needs to be challenged. He considers that the answer should instead lie in continuing the focus on real and practical co-operation, with change to internal systems arising where it can be clearly shown that such change is necessary for co-operation, so creating the reality of a safer Europe for citizens.
The Minister has asked me to impress upon members that his concern about creating an EU competence for interfering with our procedural law arises solely because of the importance of procedural safeguards in criminal matters and the uniqueness of our law in that respect. At EU and international level, substantive criminal law, by which I mean law which provides for such things as common definitions or common approaches to the punishment of offences, can be approximated without undue interference with the individual legal systems of the states concerned. Procedural law, on the other hand, concerns the way individual legal systems operate and ultimately how each criminal case is processed.
The body of procedural law built up in this country over many years is what gives our system its essential character of fairness. Our procedural rules must satisfy not just the European Convention on Human Rights but the requirement of the Constitution, and they have been interpreted by our courts as a standard in many cases higher than that set by the European convention. The strength of that constitutional guarantee reflects the importance of those rules and gives them a unique character, for example, the constitutional right to due process, the exclusion of illegally obtained evidence, trial by jury in all non-minor cases, fair bail, the presumption of innocence, habeus corpus, the right to have any law invalidated in the courts which conflicts with constitutional rights and the right not to have those laws altered except by referendum. While the Minister shares the Commission's views on the importance of procedural safeguards, he cannot support any approach which might give EU institutions the right to make decisions against our wishes regarding the internal functioning of our procedural laws.
It might be helpful if I put the Green Paper in the context of the current state of play regarding EU work on criminal matters. EU competence to deal with criminal matters is governed by the provisions of Title VI of the EU Treaty. Those provisions lay down the creation of an area of freedom, security and justice to be achieved by preventing and combating crime and such methods as closer co-operation between judicial authorities and approximations, where necessary, of rules on criminal matters. The European Council has endorsed the principle of mutual recognition as the cornerstone of judicial co-operation. Effectively that means that one member state will recognise and enforce a decision made by a judicial authority or court in another member state, and they have drawn up a programme of measures to implement the principle of mutual recognition. Perhaps I should mention that the programme does not include any proposal for the harmonisation of procedural safeguards.
It seems that the nub of the Commission's reasoning in the Green Paper regarding the need for an initiative in the area is that it considers that to achieve mutual recognition, member states should have mutual trust in each other's systems and they must have a standard set of procedural safeguards to that end. The Commission quotes in particular Article 31(c) of the Treaty on European Union as providing the necessary legal base. I mentioned that the Minister questions whether there is EU competence in the area. The treaty provides in Article 31(c), quoted by the European Commission, the competence to ensure compatibility in rules applicable in the member states as may be necessary to improve such co-operation. That is not a charter for the type of standardised approach advocated by the Commission. Instead, it is the competence to ensure compatibility in rules regarding the co-operation which member states accord each other. In other words, it is limited to situations where member states have of necessity a relationship with each other in a criminal matter, for example, regarding extradition or the mutual enforcement of decisions.
What is proposed in the Green Paper goes much further, seeking to introduce obligations which would apply internally in member states. The Commission might seek to apply a procedural rule to our domestic criminal law generally. That is considered outside the scope of Article 31 and to breach the principle of subsidiarity. That view reflects advice which the Attorney General has given the Minister on the issue. Members might also be interested to know that, from informal discussions which the Minister has had with his colleagues in the Justice and Home Affairs Council, it appears it is shared by the majority of member states. It also appears to be supported by the fact that the Convention on the Future of Europe is examining the possibility of a future treaty base for the approximation of elements of criminal procedure on the basis that the current treaty provisions do not allow concrete possibilities for such approximation.
The Commission's goal of establishing mutual confidence among member states is of course a worthy aspiration. The problem is that there is no legal base for that purpose. Mutual trust can be achieved through enforcement of the European Convention on Human Rights by national courts and the European Court of Human Rights. As I said, there is no competence for an EU enforcement role. In addition, the Minister cannot see what benefit there would be in the establishment of an alternative enforcement mechanism at EU level. That is not to say that he is opposed to other practical approaches to achieving mutual trust, for example, a system of voluntary peer evaluation among member states. Nor would the Minister be opposed to improvements in our systems if he were satisfied that they would be real and in the interests of justice. For example, Commission-sponsored work on establishing the best practical approach to the provision of interpretation and translation facilities might be helpful to us in further developing such services in this jurisdiction. However, that is a different matter from agreeing that there should be a common EU approach to criminal procedure.
The Commission will receive observations from interested parties by 15 May, having asked for them by that date. It will then produce a proposal for a framework decision by the end of the year. As I have explained, because the Minister does not believe that it would be reconcilable with the EU treaty, he could not support any such framework decision.
For the purposes of the Green Paper, the Commission has focused on five areas, which has been mentioned. It plans to address other areas in future. The current areas are legal advice and representation, access to translation and interpretation, the protection for vulnerable persons, consular assistance for foreign detainees and notifying suspects of their rights. In the note which I circulated I have provided some details, particularly regarding the law in force in Ireland in those areas. However, it would take some time to go through them all so rather than waste time, it might be useful if I very briefly picked out one or two points from each area concerned.
The right to legal assistance and representation is well established both in the European Convention on Human Rights and in our law. It is somewhat difficult to see what would be the added value of an EU restatement of these rights. There is also the possibility that if the Commission were to set criteria, as it has suggested in relation to certain areas, for example, provision of legal aid, we would end up with a very rigid approach. This would be much less flexible than the approach we have in our system and that which the European Convention on Human Rights seems to require.
Interpretation and translation are very well established through the ECHR and in our law and practice. As far as we are concerned the essential criterion is fairness. A person must be able to understand the charges and must understand and see all relevant evidence against him or her. The main proposals from the Commission are that each member state should have a system of training, accreditation, registration and continuous professional development of interpreters and translators. This approach has obvious attractions in terms of the type of standards it sets out to achieve. The Commission has funded a best practice study and this might be very useful to us in the future in developing our services in this area. When the final report of the study is available it will be examined with a view to deciding if we can apply any or all of its recommendations. While the Minister would wish to see this area fully explored he would do so taking account of the professional best practice approach but not in the context of accepting that competence to impose legally binding rules exists.
In regard to protection for vulnerable categories, the Commission has suggested that provision be made for vulnerable groups. They include foreign nationals, children, persons with mental or emotional conditions, persons vulnerable because of their physical condition and so on. The Commission suggests that law enforcement officers be required to assess the vulnerability of the people concerned and take appropriate steps. We have some concerns about a suggestion that it would be appropriate for the police to make assessments of vulnerability, for example, in relation to mental or medical conditions. The Commission has recognised that it is very difficult to decide how to assess vulnerability. There are already procedures in place to try to safeguard the rights of vulnerable people. Perhaps the most important of these is that the person in custody is entitled to consult a solicitor and to have the fact of his or her detention communicated to someone who is not in custody enabling that person to ensure that any vulnerability is made known to the police.
The Commission proposes that a letter setting out the suspect's rights be given to him or her when those rights are first at risk and in need of protection. It is quite difficult to see what the benefit of a common EU-wide letter of rights would be. The suspect will want to know only the rights to which he or she is entitled in the relevant jurisdiction. Trying to provide for a common EU document could result in a document which contains too much information which might serve to confuse rather than enlighten the suspect. On the other hand, too little information may be given in relation to the jurisdiction in question.
The last area is consular assistance. The Commission has said that more emphasis should be placed on Article 36 of the Vienna convention on consular relations of 1963. This requires that consular assistance be sought for an arrested person or a person charged with committing an offence if the person concerned so wishes. It is difficult to see what added value there could be in providing an EU basis for consular assistance as this is already covered by the Vienna convention. We understand that in reality all EU missions in other member states will have designated consular officials to deal with the convention's requirements, as we have ourselves.
I have dealt very quickly with these areas and I will leave it at that but of course I will be very glad to answer any questions the committee may have.
