Safeguards for suspects and accused persons in criminal proceedings in the EU – Jodie Blackstock

24 August 2021 by

The UK’s exit from the European Union raises many questions for continuing cross-border arrangements and the legal proceedings that follow. This is no less the case in the area of police and judicial cooperation. The Trade and Cooperation Agreement (TCA) has governed all arrangements since January 2021. Since people accused of crime will continue to travel, what does this mean for an individual’s ability to challenge requests from EU member states to UK authorities? These arguments are well known in the UK: how can we return people to Poland for prosecution of such minor misdemeanours as dessert theft? Should we be returning people to Lithuania given the appalling prison conditions?

Part 3 TCA introduced a new “surrender” arrangement with the EU to replace the European Arrest Warrant (EAW). It also replaced the other measures that in 2014 the UK concluded were necessary for law enforcement when it exercised the Protocol 36 to the Lisbon Treaty option to depart from police and judicial cooperation in criminal matters, and then opted back into 35. Alongside the EAW, these included the European investigation order, supervision order, instrument on transfer of prisoners and various others. These measures resulted from the mutual recognition project that sought to make law enforcement speedier and more effective. Part 3 TCA now provides for cooperation with Europol and Eurojust, operational information exchange and mutual assistance. 

Every mutual recognition instrument includes grounds of refusal that the executing state can raise to resist a request for cooperation – for example, political reasons, double jeopardy, age of criminal responsibility, dual criminality (excluding 32 offences controversially deemed universally recognised), passage of time, territoriality.  Proportionality was added into subsequent instruments in recognition of the clear overuse of the EAW. Indeed, the UK unilaterally amended the Extradition Act to provide for this requirement in domestic law.

Title VII, Part 3 TCA on Surrender appears to make few changes to the EAW scheme. Indeed there are notable additions, such as a proportionality check in the executing state, nationality bar and right to legal assistance in both countries. Other kinds of cooperation are limited by data protection and national law. Mutual assistance additionally requires that a request is necessary and proportionate, taking into account the rights of the defence and that the measure could have been ordered in a similar domestic case. The grounds of refusal set out in the European Mutual Assistance Convention are also deemed to apply, as is the principle against double jeopardy. That all sounds well and good.

However, while Article 524 TCA generally preserves the obligation to respect “fundamental rights and legal principles as reflected, in particular, in the European Convention on Human Rights and, in the case of the Union and its Member States, in the Charter of Fundamental Rights of the European Union”, there is no express mention of fundamental rights as a ground of refusal.

Moreover, save for Title VII on Surrender, there is no express recourse to judicial authorities for challenge to any request made under Part 3. Indeed, Article 5 clarifies that the Agreement does not confer enforceable rights or impose obligations on persons other than as between the Parties under public international law, nor for the Agreement to be invoked in domestic legal systems. There is an exception for Part 3, but only with regard to the Union. This suggests, as the House of Lords EU Committee has concluded, that the rights indicated are only available to individuals in the EU resisting a UK request, and not for those in the UK seeking to challenge a request made by an EU Member State. An alternative interpretation is that, at least for the rights expressly stated in Title VII, it must have been intended that equality of arms would be enabled in the consideration of a surrender request. However, no additional rights may be claimed.

Compliance with fundamental human rights is set out in each mutual recognition instrument (albeit it took until 2016 for CJEU confirmation that this could actually be a refusal ground). Moreover, in 2009 the EU embarked on a roadmap for strengthening procedural rights of suspects and accused persons in criminal proceedings. The safeguards were an attempt to raise minimum defence rights across the EU members states, the equivalence of which mutual recognition assumed, but is far from established. 

The safeguards are also tools to support the interpretation of fundamental rights – both in terms of the substantive arguments to refuse a judicial cooperation request due to the situation in the issuing state, and the process of challenge in the executing state. There are six directives now agreed, (although the UK only opted into the first two in accordance with Protocol 21 to the Lisbon Treaty) on the right to interpretation and translation; the right to information about the charges and your rights; the right of access to a lawyer and notification of arrest; the presumption of innocence and presence at trial or hearing; rights for children; and legal aid. 

It is still early days on the development of these instruments as defence tools. It also remains a problem that for many people across the EU, defending a European arrest warrant is a monumental task, never mind the other instruments that have been used less frequently. There are few experienced lawyers taking legal aid cases, the court process is perfunctory and raising arguments about problems in the issuing state that might arise comes across as largely hypothetical. The EU Fundamental Rights Agencyhas recently catalogued the persisting problems for individuals attempting to access these rights in domestic and EAW proceedings. 

However, preliminary references are starting to shape how rights can drive the development of mutual recognition. For example, the CJEU held last year in Case C-659/18 VW on a point of Spanish procedural practice:

44     As regards the objectives of Directive 2013/48, it is apparent from recitals 4 and 6 of that directive that the directive seeks, inter alia, to implement the principle of mutual recognition of decisions in criminal matters, which presupposes that Member States trust in each other’s criminal justice systems. The aims of that directive include the promotion of the right to be advised, defended and represented laid down in the second paragraph of Article 47 of the Charter and of the rights of the defence guaranteed by Article 48(2) of the Charter…

45      To interpret Article 3 of Directive 2013/48 as allowing Member States to provide for derogations from the right of access to a lawyer other than those which are exhaustively set out in that article would run counter to those objectives and the scheme of that directive and to the very wording of that provision and, as the Advocate General observed in point 51 of his Opinion, would render that right redundant.

Furthermore, in exploring the meaning of “judicial authority” in Sweden as the issuing state of an EAW, Case C‑625/19 PPU XD underlined that an effective judicial process to assess the proportionality of an arrest warrant includes the executing state authorities informing the requested person of their right to appoint a lawyer in the issuing state, in accordance with Article 10 of Directive 2013/48/EU.

This interesting and developing area of common minimum standards no longer applies to the UK. There is also no role for the CJEU in interpretation of the TCA provisions, rather Title XIII establishes the Specialised Committee on Law Enforcement and Judicial Cooperation to address inter-state dispute settlement. Article 693 TCA provides that one party may suspend the Part or any Titles in the event of serious and systemic deficiencies in the protection of fundamental rights within another Party. Withdrawal from the ECHR would also lead to termination of the Part. These are very high bars.

In practice in the UK, retained EU law governs the way forward, pursuant to the EU (Withdrawal) Act 2018. The Extradition Act (EA) is the instrument being followed by the UK courts but it must be in accordance with Title VII.

For example, on 10th August the High Court gave judgment in a permission application relating to a conviction warrant request, Burghelea v Bucharest Tribunal Romania [2021] EWHC 2261 (Admin). Amongst other grounds the appellant argued that domestic proceedings took place in the absence of the accused. Permission was granted on this ground. Directive 2016/343/EU applies in Romania and sets out in Articles 8 and 9 respectively the right to be present at trial and the right to a new trial following proceedings in absence. However, the Directive was not referenced. It may be that this was no longer considered a possible argument to raise under the TCA, or it may be that the Roadmap rights remain unfamiliar in UK proceedings. Yet, this instrument could have provided additional assistance to the interpretation of the s. 20 EA test for treatment of convictions in absence, which considers domestic legal provisions.

The Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014/3141, which gave effect to the other measures of cooperation, was repealed in December 2020. As such, the TCA now governs all other cooperation requests and confers no rights of challenge. Even if domestic proceedings could be argued to require a judicial process, in accordance with Article 6 ECHR and s. 6 Human Rights Act, for proper scrutiny and challenge of these cross-border requests, what obligation will the issuing state have to cooperate? 

Ultimately, these are inter-parties’ treaty provisions, a distinctly different arena to the detailed and specific directives setting out EU law that have governed cooperation in this area for over 10 years. It is not clear through what mechanism rights-based challenges can continue to be raised outside of the Extradition Act process. It is also not clear whether rights-based arguments can rely upon EU minimum procedural rights directives within the surrender context or whether the developing acquis and CJEU case law can be drawn upon to assist (save that a court may “have regard to it” pursuant to s. 6(2) EU (Withdrawal) Act 2018). Nevertheless, far from assuming all is lost, these uncertainties raise interesting opportunities for cross-border criminal practitioners to explore.

The Criminal Justice and Data Protection (Protocol No. 36) Regulations 2014/3141 which gave effect to the other measures of cooperation was repealed in December 2020. As such, the TCA now governs all cooperation requests and confers no rights of challenge. Even if domestic proceedings, by reference to the obligation to ensure a fair hearing pursuant to Article 6 ECHR in conjunction with section 6 Human Rights Act, could be pleaded as requiring the scrutiny and challenge of these cross-border requests, what obligation will the issuing state have to cooperate with that process? Ultimately, these are inter-parties’ treaty provisions, a distinctly different arena to the detailed and specific directives setting out EU law that have governed cooperation in this area for over 10 years. It is not clear through what mechanism rights-based challenges can continue to be raised outside of the Extradition Act process where a mutual assistance or other kind of cooperation is sought. It is also not clear whether rights-based arguments can rely upon minimum procedural rights directives within the surrender context or whether the developing acquis and CJEU case law can be drawn upon to assist. Nevertheless, far from assuming all is lost, these uncertainties raise interesting opportunities for cross-border criminal practitioners to explore.

Jodie Blackstock was Legal Director at JUSTICE until August 2021 and will shortly be practising from Garden Court Chambers. 

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