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The EU Adopts New Measures to Strengthen Detainees Rights But Directives Are Still Not Aligned to the PACE Codes of Conduct

04/12/2014 10:55 GMT | Updated 01/02/2015 10:59 GMT

There has been a lot of progress recently within the EU on measures that facilitate prosecution in judicial and police matters, such as the European Arrest Warrant. The EU felt it was time to take action to balance the newly afforded rights given to investigating and prosecuting criminals such as the new arrest warrant, with the protection of procedural rights of individual EU citizens. To this end, three

Directives have now been adopted:

• The right to interpretation and translation in criminal proceedings (Dir. 2010/64/EU)

• The right to information in criminal proceedings (Dir. 2012/13/EU)

• The right of access to a lawyer in criminal proceedings (Dir. 2013/13/EU)

The UK has opted in to the first two of these Directives, but has not opted into access to a lawyer - which raises an interesting point. These Directives are passed using the ordinary legislative procedure which means agreement between the Council and Parliament before the law can be passed. So MEPs in the European Parliament have had a say on it as have the Member State council members.

The directives require Member States to implement the Directives by a certain date. Applications can be made to the Court of Justice of the European Union (ECJ) regarding interpretation of the Directives during proceedings in the national courts, under the Art 267 TFEU referral procedure. There may be terms in the national or EU legislation that require clarification, for which an Art 267 reference to the ECJ may be made.

In order to implement the Directive adopted into UK law, revisions were made to the Police And Criminal Evidence Act 1984 and the Codes of Practice C & H which deal with the detention, treatment and questioning of persons by police officers, and identification of persons by police officers respectively.

But what is the point of the Directives and what does this really mean? These Directives give detained persons further rights during criminal proceedings. These rights are in relation to interpretation and translation for those that do not speak/understand English, rights to be given relevant information during criminal proceedings and the right of access to a lawyer in criminal proceedings.

This could prove to be highly controversial. Spending money on people who do not speak English or understand English is a very topical issue since it seems public opinion is that we should be spending 'public purse' money on "Brits" rather than "foreign nationals" and it seems this Directive would be used more by foreign nationals and those from the EU.

Another key point to consider is that the two Directives we have opted in to, do not seem to have been implemented into the PACE codes of conduct properly which means that they are not yet aligned. Until the Directives are implemented properly and fully, detainees in the UK, compared to the rest of the EU, are not getting the full rights intended by the Directives.

For example, the Directive on the right to interpretation and translation states that suspects or accused persons must receive interpretation free of charge. PACE however states that all reasonable attempts must be made to make the suspect understand that it's free of charge rather than explicitly providing it as free of charge. Interpreters were never an automatic right. Prior to the Directives, the practice was more ad hoc with the police and courts getting interpreters when they could, but they were often not used at every necessary stage of the proceedings.

Another example is in the Directive on the right to information. Article 6(2) of this Directive requires that information about a person's arrest and the grounds for it must be informed to the arrested person as soon as practicable. PACE however states that this is on request.

If a Directive has not been properly implemented, anyone can, instead of relying on the implementing legislation, here PACE, rely on the Directive itself directly or indirectly or could sue the State (UK government) for incorrect implementation. This is based on the supremacy of EU law.

Two points come to mind. The first is court procedure, one would be asking the Magistrates Court or the Crown Court to look beyond PACE, at the Directives themselves (direct effect), or to interpret PACE in line with the Directive (indirect effect). Or indeed, to make an Article 267 reference to the ECJ. I expect the Crown Court would have little problem doing this, but as a practitioner, I very much doubt whether the Magistrates Courts are ready for this sort of application.

The second point is who is going to fund all of this? With Legal Aid cuts in place we don't seem to have funding for normal criminal procedure under UK law, let alone criminal procedure under EU law. Would Legal Aid have to foot the bill? I can't seem to find the answer to this.