The Roadmap:
Where do things stand with the UK?
And what will happen next?
Professor John Spencer
29 July 2015, 4.00-6.00
Protocol 21 (reminder)
Protocol 21 – UK out of all new JHA measures
• unless its opt in, within three months of the
balloon going up; or
• decides to opt in afterwards
Defence Rights: the “Roadmap” (2009)
• Measure A: Translation and Interpretation
• Measure B: Information on Rights and Information
about the Charges
• Measure C: Legal Advice and Legal Aid
• Measure D: Communication with Relatives,
Employers and Consular Officials
• Measure E: Special Safeguards for Suspected or
Accused Persons who are Vulnerable
• Measure F: A Green Paper on Pre-Trial Detention
The “Roadmap”: where has the EU got
to now?
• Measure A: Translation and Interpretation
Done in 2010
• Measure B: Information on Rights and Information about the
Charges
Done in 2012
• Measures C and D: Legal Advice and Legal Aid/ Right to
Communicate
Partly Done in 2013, further work in progress
• Measure F: A Green Paper on Pre-Trial Detention
Done in 2011
• Measure E: Special Safeguards for Suspected or Accused Persons
who are Vulnerable
Work in progress
• [New Destination: Directive on Presumption of Innocence
Work in progress]
Directive on Translation and
Interpretation, 20 October 2010
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•
•
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We joined at the beginning
We implemented it by the official date (just!)
To do so, we amended PACE Code C
Details: Parry, [2011] Criminal Law Review,
802-816
Directive on Right to Information, 22
May 2012
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•
•
•
We were in from the beginning
We implemented it by the official date (just!)
To do so, we amended PACE Code C
Details: Ed Cape, [2015] Criminal Law Review,
48-67
Directive on Access to a Lawyer, 22
October 2013
• We refused to join at the beginning: “We’ll let
you know”
• And in July 2015 we’re still thinking about it …
Current UK policy in a picture
What the UK has done about the
Roadmap, Phase I…
Translation and interpretation: we’re in!
Information: we’re in (just!)
Legal advice and communication:
“Sorry, darling, I’ve got a headache …”
Green Paper on Pre-trial Detention?
Governmental response: “no legislation”
• Proposals for Directives on Juvenile Suspects,
Legal Aid and the Presumption of Innocence
• “UGH !!”
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•
•
•
•
Phase II: three new proposals
• Proposed Directive on Safeguards for Child
Defendants
• “Probably not – but maybe”
• Proposed Directive on Right to Legal Aid
• “No way!”
• Proposed Directive on the Presumption of
Innocence
• “Wouldn’t touch it with a barge-pole!”
Proposed EU Directive on the
Presumption of Innocence
What is the right to silence?
• The primary right: no forcing suspects to
incriminate themselves (i) in the criminal
proceedings or (ii) in related proceedings
(“privilege against self-incrimination”).
• The secondary right: D’s exercise of the
primary right is not to be treated as
circumstantial evidence (“no adverse
inferences”)
Divergent views on value of the right
to silence…
“The Court recalls that, although not specifically
mentioned in Article 6 of the Convention, the
right to silence and the right not to incriminate
oneself, are generally recognised international
standards which lie at the heart of the notion of
a fair procedure under Article 6 [of the ECHR]
…”, Saunders v UK, (1997) 23 E.H.R.R. 313, para.
68
Jeremy Bentham (1748 – 1832)
“ If all the criminals of every class had
assembled and framed a system after their
own wishes, is not this rule the very first they
would have established for their security?
Innocence never takes advantage of it.
Innocence claims the right of speaking as guilt
invokes the privilege of silence.”
The secondary right to silence in England
and Wales: how it used to be
R v Herbert, The Times, December 4 1806
Watkins Herbert, a private soldier of the First Regiment of
Guards, was capitally indicted for a highway robbery
committed on Samuel James … The prisoner, being called on
for his defence, told a long story in which he denied the
robbery, and said the Prosecutor had given [the money] to
him, in order to induce him to commit an unnatural crime…
Mr Justice Grose summed up the evidence, and commented
on the total improbability of such a defence, which he never
mentioned when first charged before his Officer with the
robbery, or at any period before his trial. The jury found him
Guilty - Death
Change of course: e.g. Devlin J’s
direction in the Bodkin Adams case
(1958)
Criminal Justice and Public Order Act
1994
• Adverse inferences may be drawn from D’s
failure to explain clues found on his body or
his clothing (s.36)
• or his suspicious presence at a crime scene
(s.37)
• or his use of “ambush defence” at trial (s.34)
• or his failure to give evidence at trial (s.35)
Strasbourg and the secondary right to
silence: CPOA provisions are basically
ECHR compliant
• Murray v UK (1996)
• Condron v UK (2000); Beckles v UK (2003)
• Telfner v Austria (2002)
Justifications for the right to silence:
insofar as they are valid, how far are they
applicable to the secondary right?
• “the right to silence is part of the presumption
of innocence”
• “it protects the innocent”
• “it protects human dignity”
• “it makes the police work harder”
• “nemo tenetur seipsum accusare”
A comment on cultural transplants …
Agrigento
What English criminal procedure has to
offer Europe
• Controlling police interviews with suspects
• Limiting pre-trial detention
So why the UK opposition?
Euromyths
• EU to ban corgis
• EU to ban double-decker buses
• Under EU law, it is illegal to bury dead pets unless
you have pressure-cooked them first
• EU to ban barristers wigs
• Brussels has a secret plan to
abolish the Common Law and
make us have “the Napoleonic
System”
“I believe there are areas where it is important
to collaborate without partners in fighting
international organised crime, but I do not
want to see our justice system, which
commands respect around the world …
subsumed into something Europeanised.
That is why I draw a very clear line, in
considering European measures, between
those that are essential in dealing with the
real issues of cross-border crime and those
that are about subsuming our system into
common processes.” [Chris Grayling, Commons
debate, 18 March 2014]
So what next with the UK?
Seems unlikely that the new
government will wish to opt the UK
into any further defence-protective
measures in advance of the
Referendum.
And what next with the EU?
• The Commission’s 2015 “Work Programme”
suggests that, for now, there will be less EU
legislation than in the past.
• A pity: there surely need for further EU action
on two topics – (i) ensuring the police taperecord interviews with suspects, and (ii)
limiting pre-trial detention.