The European Union is a growing influence on the development of cross border criminal justice. We strive to ensure that EU policy adheres to the principles of human rights and the rule of law, but also reflects UK common law. Many instruments have been passed to alleviate the problem of cross-border crime. The most notable of these is the European arrest warrant (EAW), but there are also laws covering financial penalties, freezing of assets, transfer of prisoners and bail, to name only a few. Many of these are unknown because EU Member States have been slow to implement them. All this has changed with the Lisbon Treaty 2009, which in relation to pre-Treaty acts finally came into force on 1 December 2014, and Member States must now implement all the instruments passed in the EU through domestic legislation, or face infringement proceedings being brought against them by the European Commission in the Court of Justice of the European Union (CJEU).
The UK had an option to choose which, if any, of these acts we would continue to participate in and after two years of close consideration, have decided on the 35 main judicial and police cooperation acts. This participation not only requires the Member States to implement the acts correctly, but opens the opportunity for individuals in domestic cases to argue that the EU law is not clear and requires interpretation by the CJEU through a preliminary reference.
JUSTICE has been heavily engaged in advising on the passage of these laws through the EU institutions, both by briefing in the UK and in Brussels. We regularly attend experts meetings and give presentations on our concerns for ensuring fair trial rights in the proposals being made. JUSTICE has also supported the need for the UK to stay engaged in these EU acts because although we consider some are in need of reform, there will always be a need for mutual legal assistance between nations and we believe that reform is more achievable from within the system. The UK has a strong bargaining position by re-committing to EU criminal justice cooperation.
JUSTICE has had concerns about the operation of the EAW since the warrant’s inception and have voiced these in our own publications (EAW: A solution ahead of its time (2002) and EAWs: Ensuring an effective defence (2012)), as well as submitting evidence to a number of UK inquiries. We continue to advocate changes to improve human rights protections for those requested by another EU Member State, as well improvements in training for defence lawyers and dual representation in the respective countries. These changes are necessary at EU level in order for effective change to take place.
A major concern shared by NGOs in Europe is the failure to address the lack of procedural safeguards for defendants in domestic criminal cases. Wide discrepancies have been shown in trial standards across the EU – as shown in our joint research Effective Criminal Defence in Europe (2010). The project found marked variations in interpretation, notification of rights, disclosure of evidence, and access to (quality) legal advice.
The EU recognised this problem by embarking upon a roadmap for the adoption of minimum procedural safeguards which, over five years, aims to produce uniform standards in the EU for defendants in criminal cases. We are heavily involved, together with a consortium of NGOs (including International Commission of Jurists, Open Society Justice Initiative, Irish Council of Civil Liberties, Amnesty International and Fair Trials International), in ensuring that these instruments create practical and effective protection. So far, measures on interpretation and translation, information and access to a lawyer have been adopted to improve the fair trial rights of suspects and accused persons. We are monitoring their introduction across the UK. We are also briefing the EU Institutions and UK Parliamentary Committees on the next three proposals concerning legal aid, child suspects and the presumption of innocence, to ensure these measures comply with international human rights standards and in particular the standards set out in the Charter of Fundamental Rights.