The Roadmap:Where do things stand with the UK?

And what will happen next?

Professor John Spencer29 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

• 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

• 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 !!”

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 tape-record interviews with suspects, and (ii) limiting pre-trial detention.