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Wrong media verdict on EC proposals to ensure fair trials

March 18th, 2014

The Sun on Sunday 16 March and the Evening Standard on 18 March have run articles highlighting concerns expressed by Justice Minister Chris Grayling over the European Commission’s proposal to strengthen certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings.

The Sun failed to mention at all that the UK has an opt-out on all EU justice measures and the Standard mentioned this only in passing at the end.

Given that the UK has indeed already expressed a clear intention to opt out of all such measures – existing and new – before the end of this year and only then to seek to opt back in to those it wishes to be part of, there is no chance that the proposal concerned will affect the UK justice system unless the UK so chooses.

What it will do is strengthen safeguards for UK citizens facing trial in other EU countries. The UK has previously, in debate over the European Arrest Warrant, expressed concerns about the effectiveness of such safeguards in some countries.

The draft Directive was put forward by the Commission in response to a unanimous request made by EU leaders in 2010.

In the light of all this, it is difficult to understand Mr Grayling’s reference quoted in the Standard to “Brussels trying to muscle in and reinvent the wheel” or the Sun’s reference to “meddling EU chiefs”.

What is more, the proposal does not do most of the things referred to in these newspaper articles, even in those countries that will be covered by it.

It has nothing to do with speeding fines (it covers only criminal trials and anyway it makes clear that some powers of compulsion can be used, so would not prevent Member States from requiring vehicle owners to disclose who was driving when a traffic offence was committed). Parliamentary privilege will not be affected. Neither will the Directive require the burden of proof to be placed on the prosecution to prove a defendant claiming insanity is not insane.

The only issue where the proposals in the Directive seem to differ significantly from UK practice is on the right to silence, where the draft Directive does say: “Exercise of the right to remain silent shall not be used against a suspect or accused person at a later stage in the proceedings and shall not be considered as a corroboration of facts.” In certain circumstances it is possible for UK courts to draw adverse inferences from an accused’s silence in pre-trial questioning or at the trial itself. This includes a failure by the accused to mention certain facts when questioned which are later relied on in defence.

Of course, whether to adopt the Directive is a decision for the European Parliament and Member States, who can of course also amend it to address any concerns over either the substance or the scope, wording, etc. Obviously, they would not take decisions that prevent themselves from collecting speeding fines.

Here is the full text of the proposed Directive:

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EC in the UK

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Please note that all statements in all entries were correct on the date of publication given. However, older archived posts are not systematically updated in the light of later developments, for example changes to EU law.

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