Sunday 15 November 2015

The new Directive on the presumption of innocence: protecting the ‘golden thread’

Debbie Sayers, Legal Research Consultant,

"Throughout the web of the […] criminal law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner's guilt”

Woolmington v DPP [1935] UKHL 1

(update: the law discussed in this blog post was adopted in February 2016, and must be applied by 1 April 2018)
Around nine million people are the subject of criminal proceedings every year in the EU.[1] All of them are entitled, by law, to a fair trial irrespective of the charge faced. The presumption of innocence (set out in Article 6 (2) ECHR and Article 48 (1) EU Charter) is the cornerstone of the right to a fair trial. It is rooted in the need to protect the individual against the improper use of coercive state power. The principle is derived from, and entrenched within, the constitutional traditions of all EU Member States. In essence, it relates to both the procedural burden and standard of proof (the prosecution must prove the case against the defendant beyond reasonable doubt) while also constituting a privilege in its own right.
In reality, the principle is persistently under attack within EU Member States because of concern about crime and security, because of rampant managerialism in a climate of austerity[2] and because of penal populism. Too often, a more ‘effective’ criminal justice system is portrayed solely as a system which convicts more people. Consequently, any discussion on how best to protect the presumption in contemporary criminal justice systems is to be welcomed. In the EU context, the effective standard promotion and enforcement of human rights is to be particularly encouraged because EU criminal cooperation, via mechanisms such as mutual recognition (e.g. the European Arrest Warrant - EAW), has laid bare the variability within criminal justice systems. Although fair trial standards are set out in the ECHR, and reflected in the EU Charter, their basic level of protection is neither uniformly transposed nor consistently enforced. This has undermined a model of criminal cooperation built on ‘mutual trust’ between Member States. The EU’s response has been the creation of EU-specific standards in the form of Directives issued in pursuance of the Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings based on Article 82 of the TFEU. Thus far the following instruments have been agreed:

·         Directive on the right to information in criminal proceedings establishes that Member States must inform individuals of their rights, including the right of access to a lawyer and the right to remain silent;
·         Directive on the right to interpretation and translation in criminal proceedings;
·       Directive on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings (the UK and Ireland have opted out);
·        Commission Recommendation on the right to legal aid for suspects; and
·    Commission Recommendation on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings.

It is in this context that the EU has recently agreed a compromise text on the Proposal for a Directive on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings. The stated purpose of the Directive is “to enhance the right to a fair trial in criminal proceedings by laying down minimum rules concerning certain aspects of the presumption of innocence and the right to be present at the trial” (Recital 4a). This should: “strengthen the trust of Member States in the criminal justice systems of other Member States and […] thus help to facilitate mutual recognition of decisions in criminal matters. Such common minimum rules should also remove obstacles to the free movement of citizens throughout the territories of the Member States.” (Recital 5)
Before looking at some of the key points of the Directive, there are two points to note: first, although compliance with existing law (ECHR) is noted to be a problem, EU standard setting has not been based on any empirical legal study. The precise scope and substance of the presumption of innocence can be harder to define within comparative contexts and this required further consideration. Second, Article 52(3) of the Charter confirms that the EU may raise standards beyond those of the ECHR but it cannot permit States to fall below them (note also the non-regression clause in Article 12 of the Directive). The ECHR is thus the core baseline for any assessment of the efficacy of new standards. Consequently, if the agreed instrument is not, at the very least, consistent with the ECHR, it is difficult to conclude it will have any positive benefit for the accused or address the problems it seeks to resolve.

The Directive

Article 1 confirms that the Directive is intended to lay down minimum rules on “certain aspects” of the right to the presumption of innocence in criminal proceeding” and the right to be present at the trial in criminal proceedings. The Directive is not intended, therefore, to be an exhaustive study of the principle and the ECHR will still be the main guide to those aspects which are not included in the text.

Article 2: Scope

Article 2 confirms that the Directive will apply at “all stages from the moment when a person is suspected or accused of having committed a criminal offence, or an alleged criminal offence, until the final determination of the question whether the person has committed the offence concerned and that decision has become definitive”. Recital 6 confirms that it applies “only to criminal proceedings, as interpreted in the case-law of the Court of Justice of the European Union (Court of Justice), without prejudice to the case-law of the European Court of Human Rights. Administrative proceedings, including administrative proceedings that can lead to sanctions, such as proceedings relating to competition, trade, financial services, traffic offences, or tax, including tax surcharge, and investigations by administrative authorities in relation to such proceedings, as well as civil proceedings, should not be covered by this Directive.”

There is no recognition of the possible consequences that admissions made in administrative proceedings could have on subsequent criminal proceedings. Further, despite the meaning of the term criminal proceedings being “without prejudice” to the definition established by the ECtHR, the Directive seems to contradict this. Article 6 (2) ECHR refers to a “criminal offence” but this has been interpreted to encompass types of cases beyond the classically “criminal”, for example, professional disciplinary proceedings or certain administrative offences which may fall within the ambit of the criminal head of Article 6 (e.g. Lutz v Germany, No. 9912/82, 25/08/1987; Bendenoun v. France 12547/86, 24/02/1994).

Further, the Directive applies only to natural persons and therefore excludes legal persons (e.g. companies). In a Joint Position Paper in 2014, Fair Trials International, noted that this leaves “their protection to existing safeguards, while acknowledging that the case law of the ECtHR has not clearly recognised the right of silence for legal persons” (para 12).[3] Given that legal persons can clearly be affected by the mutual recognition agenda, this is an opportunity missed in terms of clarifying and enhancing protection.

Additionally, as FTI has noted, unlike the Directive on access to a lawyer (Article 2(3)), this Directive does not extend protection explicitly to those “persons other than suspects or accused persons who, in the course of questioning, become suspects or accused persons”. There appears to be no justification for this inconsistency.

Article 3: Presumption of innocence

Article 3 is simply a restatement of the principle. It sets out “Member States shall ensure that suspects and accused persons are presumed innocent until proven guilty according to law”.  There is no attempt to articulate the nature of the provision further or set out the core aspects of the presumption for the purposes of the Directive.

For example, the ECtHR has confirmed that, in practice, for the presumption to be meaningful, certain procedural safeguards must be in place. For example, the prosecution will need to produce evidence of guilt in the trial (Barberá, Messegué and Jabardo v. Spain, No. 10590/83, 6.12.98) and the defendant must be given the right to be heard in his or her own defence (Minelli v. Switzerland No. 8660/79, 25.3.83). It will also be unlawful to base a conviction solely on the silence of an accused (Murray v. UK, No. 18731/91, 8.2.96). Consequently, the presumption is closely tied to the ability of the suspect to defend him/herself by receiving information about the charge so that s/he may prepare and present her/his defence accordingly (Barberá, Messegué and Jabardo v. Spain).  A document aimed at ensuring consistency should have articulated these issues more clearly.

Article 4: Public references to guilt before proven guilty

Article 4 puts Member States under an obligation to “take the necessary measures” to ensure that there are no public statements made by “public authorities”, as well as judicial decisions (save for verdicts), before suspects have been proven guilty according to law (see also Recitals 13 and 13a). This does not include prosecution attempts to prove the case or the public dissemination of information on the proceedings when it is “strictly necessary” for reasons relating to the criminal investigation or for the public interest. Appropriate remedies must be made available in the event of a breach (Article 10).

The case law of the ECtHR is quite substantial in this area (e.g. Allenet de Ribemont v. France, No. 15175/89, 10.02.1995) and more detailed guidance may help to drive up standards. Additionally, reference could have been made to the Council of Europe’s standards (CoE Recommendation Rec (2003)13 on the Provision of Information through the Media) particularly Principles 1 and 2 to assist in clarifying the scope and content of this Article.
Article 4a - Presentation of suspects and accused persons

This provision obliges Member States to “take appropriate measures” to ensure that suspects are not “presented as being guilty, in court or in public, through the use of measures of physical restraint” (see also Recital 13c). An exception is made under Article 4a (2) if the measures are required for security purposes or to prevent suspects absconding or having contact with third persons.

The ECtHR has established that an accused should not be treated in a way which undermines the presumption of innocence, e.g. by being in a caged dock without justification or being required to wear prison uniforms (Ramishvili and Kokhreidze v. Georgia, No. 1704/06, 27.1.09; Jiga v. Romania, App. No. 14352/04, 16.3.10). The Directive arguably offers less protection by focusing solely on physical restraint. The only concession to this lies in the rather weak assertion in Recital 13d which requests that Member States “refrain from presenting suspects in prison clothes where “practically possible”.

Article 5: Burden of proof

Article 5 deals with the burden of proof. It requires Member States to “ensure that the burden of proof in establishing the guilt of suspects and accused persons is on the prosecution”. This is an important issue. The burden of proof refers to the fact that the prosecution who must prove the case against the accused. The initial draft of Article 5 initially contained an article permitting the burden of proof to be shifted to the defence. The European Parliament’s Civil Liberties Committee successfully proposed an amendment deleting this burden of proof shifting provision.

However, Recital 14 permits presumptions of fact and law “confined within reasonable limits, taking into account the importance of what is at stake and maintaining the rights of the defence, and the means employed have to be reasonably proportionate to the legitimate aim sought to be achieved. The presumptions should be rebuttable; in any case, they may only be used provided the rights of the defence are respected”. Presumptions of fact and law create reverse burdens of proof which can clearly undermine the presumption of innocence. The ECtHR has permitted the evidential burden to be shifted to the defence but the importance of what is at stake and the safeguards which exist to protect the rights of the defence must be considered when determining whether a reverse burden is acceptable (Salabiaku v. France, Nos. 10519/83, 10519/83, 7.10.88).  No reference is made in the Directive for the need for specific safeguards to protect the rights of the defence in cases of presumptions of fact or law.

Article 6: Right to remain silent and right not to incriminate oneself

Article 6 (formerly Articles 6 and 7) requires that the suspect has the right to remain silent “in relation to the offence that they are suspected or accused of having committed”. This should surely have been extended to the right to silence in relation to the commission of any offence.

The Directive also confirms that “suspects and accused persons have the right not to incriminate themselves” (Saunders v. the United Kingdom, No. 19187/91, 17.12.96). Under Article 6 (1) ECHR, the right not to incriminate oneself presupposes that the prosecution must prove their case against the accused without recourse to evidence obtained “through methods of coercion or oppression in against the will of the accused”. The importance of informing a suspect of the right to remain silent is crucial yet the Directive makes no comment on this and makes no direct link in the operational text (as opposed to the Recitals) between this right and the Directive on the Right to Information or the Directive on the Right of Access to a Lawyer. Access to a lawyer is part of the procedural safeguards to which the ECtHR will have regard when examining whether any procedure has undermined the privilege against self-incrimination. If an accused has no lawyer, s/he has less chance of being informed of his/her rights and there is less chance that they will be respected (Pishchalnikov v. Russia, No. 7025/04, 24.9.09).

The ECtHR has noted that even where a person willingly agrees to give statements to the police after being informed that his/her words may be used in evidence against him/her, this cannot be regarded as a fully informed choice if s/he has not been expressly notified of his right to remain silent and if his/her decision has been taken without the assistance of counsel (Navone and Others v. Monaco, No. 62880/11, 24.10.13; Stojkovic v. France and Belgium, No. 25303/08, 27.10.11).

Yet, the Directive contains no reference to waiver of rights. The ECtHR has said, consistently, that a person can waive any fair trial guarantees of their own free will, either expressly or tacitly, but that a waiver requires safeguards for it to be effective, namely it must: (i) be established in an unequivocal manner; (ii) be attended by minimum safeguards commensurate to its importance; (iii) be voluntary; (iv) constitute a knowing and intelligent relinquishment of a right; and (v) if implicit from the accused’s conduct, it must be shown that s/he could reasonably have foreseen what the consequences of his/her conduct would be. Further, reasonable steps should be taken to ensure the accused has a level of understanding commensurate to their personal situation (Panovits v. Cyprus, No. 4268/04, 11.12.08). States will need to take additional steps to protect the rights of vulnerable suspects such as persons with disabilities and children, for example by arranging for third parties to support the individual.

It is of note that, in contrast, Article 9 of the Directive on the Right of Access to a Lawyer creates three conditions for a valid waiver: (i) the suspect must be provided, orally or in writing, with clear and sufficient information in simple and understandable language about the content of the right concerned and the possible consequences of waiving it; (ii) the waiver must be given voluntarily and unequivocally; and (iii) it must be recorded in accordance with the law of the EU Member State. However, it should be noted that the draft Directive on procedural safeguards for children suspected or accused in criminal proceedings confirms that children may not waive their right to a lawyer. Further, an EU Recommendation on procedural safeguards for vulnerable persons recommends that it should not be possible for vulnerable persons to waive their right to a lawyer (Recommendation of 27 November 2013 on procedural safeguards for vulnerable persons). Waiver is not addressed in the Directive and it is not clear why similar protections to the right to silence have not been established. Although Recitals 25c and 25d make reference to vulnerable suspects, they make no specific direction on the substance of the protection they require.

Under Article 6 (2), in line with the ECtHR jurisprudence, “the exercise of the right not to incriminate oneself shall not prevent gathering evidence which may be lawfully obtained through the use of legal compulsory powers and which has an existence independent of the will of the suspects or accused persons”. The ECtHR has noted this includes documents acquired pursuant to a warrant, breath, blood and urine samples, and bodily tissue for the purpose of DNA testing (Ortiz and Martin v. Spain, No. 43486/98, 15.6.99).

Article 6 (2b) of the Directive permits Member States’ judicial authorities to take into account “the cooperative behaviour of suspects and accused persons when sentencing”. No explanation is given for what “cooperative behaviour” means and certainly an “admission of guilt” is not excluded. This appears contradictory, confused and potentially undermining. Discounts for ‘cooperative behaviour’ are common in many criminal justice systems but they may create perverse incentives to plead guilty. All incentives to guilty pleas may compromise the right of defendants to be presumed innocent as they relieve the prosecution of the burden of proving guilt, and place pressure on suspects to admit an offence. Further thought should have been given to the implications of this Article on practice.

Article 6 (3) notes that “the exercise of the right to remain silent and of the right not to incriminate oneself shall not be used against a suspect or accused person and shall not be considered as evidence that the person concerned has committed the offence which he or she is suspected or accused of having committed”. This is welcome and appears to go further than the ECtHR which has found that an accused’s decision to remain silent throughout criminal proceedings may carry consequences, such as ‘adverse inferences’ being draw from the silence. (Condron v. United Kingdom, No. 35718/97, 2.5.00; Murray v. UK, No. 18731/91, 8.2.96).
Under Article 6 (5) Member States are not precluded from deciding that “in minor offences, the conduct of proceedings, or certain stages thereof, may take place in writing and/or without questioning of the suspect or accused person by the police or other law enforcement or judicial authorities in relation to the offence concerned, provided this is in conformity with the right to a fair trial”. The Commission has made a specific statement in relation to this provision stating that it should not be used to allow derogations from the right or to allow Member States to draw negative consequences from the exercise of the suspects' right to remain silent.
A proposal by FTI for the audio-visual recording of police interviews to prevent violations was not taken on board. Thus, the circumstances in which an accused agrees to talk remain extremely important. This is particularly important as there is no specific provision reinforcing the prevention of subterfuge to undermine the right to silence by eliciting confessions (e.g. by the use of informants) and no specific prohibition on the use of such evidence at trial. The ECtHR has clearly held that the privilege against self-incrimination includes the right not to incriminate oneself through coercion or oppression, in defiance of the will of the accused: Allan v. the United Kingdom, No. 48539/99, 12.11.02. This should have been clearly restated.
Article 8: Trials in absentia

Article 8 (and Recitals 21 and 22) re-affirm the individual’s right to be present at their trial. The ECtHR has confirmed that this is implicit in the right to a fair trial by way of a public hearing (Jacobsson v. Sweden, No. 16970/90, 19.2.98) and that it is difficult to see how anyone can exercise their defence rights without being present at their own trial (Colozza v. Italy, No. 9024/80, 12.2.85).

However, this principle is not absolute and this is reflected in the provisions of the Directive. Articles 8 (2) and (2a) permit Member States to hold trials in someone’s absence (and to enforce the decision of that trial) only if: (a) the suspect or accused person has been informed in due time of the trial and of the consequences of a non-appearance; or (b) the suspect or accused person, having been informed of the trial, is represented by a mandated lawyer, who was appointed either by the suspect or accused person, or by the State. This is narrower than the position set out by the ECtHR which has indicated that only “certain established facts might provide an unequivocal indication that the accused is aware of the existence of the criminal proceedings against him and of the nature and the cause of the accusation and does not intend to take part in the trial or wishes to escape prosecution” (Sejdovic v Italy, No. 56581/00, 1.3.06, at [99]). For example, “where the accused states publicly or in writing that he does not intend to respond to summonses of which he has become aware through sources other than the authorities, or succeeds in evading an attempted arrest …. or when materials are brought to the attention of the authorities which unequivocally show that he is aware of the proceedings pending against him and of the charges he faces” ([99]).

Under Article 8 (3), if Member States cannot comply with Article 8 (2) because the suspect or accused person cannot be located despite reasonable efforts having been made, “Member States may provide that a decision can nevertheless be taken, and that such a decision can be enforced”. However, in this situation, Member States “shall ensure that when suspects or accused persons are informed of the decision, in particular when they are apprehended, they shall also be informed of the possibility to contest the decision and of the right to a new trial, or another legal remedy, in accordance with Article 9”. The ECHR makes no such distinction in relation to when an accused has a right to a retrial. Indeed, in the case of Sejdovic v Italy, (No. 56581/00, 1.3.06), the ECtHR confirmed that “a denial of justice … undoubtedly occurs where a person convicted in absentia is unable subsequently to obtain from a court which has heard him a fresh determination of the merits of the charge, in respect of both law and fact, where it has not been established that he has waived his right to appear and to defend himself” (at [82]).

Article 8 (4) and (5) are both made “without prejudice to national rules” to permit temporary exclusion of a suspect from their trial or proceedings being conducted in writing if certain conditions are met. It is unhelpful to refer back to national law in a document which aims to consolidate rights at European level.

Finally, it should be noted that the Directive attempts to set standards within national jurisdictions, a situation that should be distinguished from that in Melloni where national standards potentially impeded the uniform application of cross-border obligations. In dealing with a question of trial in absentia, the CJEU in the case C-399/11, Stefano Melloni v. Ministerio Fiscal, 26.2.13 appeared to suggest that the Charter embodies a maximum rather than a minimum standard of human rights protection (save where the EU has not fully harmonised the field). This was to prevent the efficacy of the EAW Framework Decision (as amended by a later Framework Decision concerning in absentia proceedings and mutual recognition) being compromised. The Directive on the presumption of innocence, however, is specifically articulated as a set of minimum standards meaning that Melloni does not prevent higher standards being established nationally. Indeed, Article 12 explicitly prohibits the Directive from limiting the law of any Member State which provides a higher level of protection.   

Article 9: Right to a new trial

This permits the right to a retrial only where the conditions in Article 8 (2) have not been met. In any retrial, “Member States shall ensure that the persons concerned have the right to be present, to participate effectively, in accordance with procedures under national law, and to exercise their rights of defence”. A previous proposal stipulating that retrials could be denied to those who fail to request a retrial or appeal “within a reasonable amount of time has been removed.  But this provision remains weak.

Under the ECHR, if a person is not present at trial, they cannot exercise their defence rights under Article 6 (3) ECHR. The ECtHR has held that without a clear demonstration of the accused’s actual knowledge of the proceedings, a court may not commence a trial in absentia unless the defendant has a right to retrial, Krombach v. France, No. 29731/96, 13.2.01 Such retrial or appeal must fully comply with the demands of Article 6 of the ECHR, including the right to confront previous evidence including the cross-examination of witnesses. This provision should have reflected the law more closely.

Article 10: Remedies

Article 10 confirms that “Member States shall ensure that suspects and accused persons have an effective remedy if their rights under this Directive are breached”.  Further, “without prejudice to national rules and systems on the admissibility of evidence, Member States shall ensure that, in criminal proceedings, in the assessment of statements made by suspects or accused persons or of evidence obtained in breach of their right to remain silent or their right not to incriminate themselves, the rights of the defence and the fairness of the proceedings are respected”. Recital 26 confirms that “as far as possible” the suspect should be placed “in the same position” they would have been in but for the breach.

This could have been a much more robust provision. It could, as a minimum, have reflected the current state of ECHR/EU law. The right to an effective remedy is set out in Article 13 ECHR and Article 47 EU Charter. The primary requirement is that the remedy should be “effective in practice as well as in law”. The type of remedy required will depend on the circumstances of the case but some core principles have been developed to determine effectiveness. For example, an effective remedy must be: (i) accessible; (ii) capable of providing redress in respect of the applicant’s complaints; and (iii) offer reasonable prospects of success (Selmouni v. France, No. 25803/94, 28 July 1999). In terms of unlawfully obtained evidence, the question is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the alleged unlawfulness in question (e.g. Khan v. the United Kingdom, No. 35394/97, 12.5.00). Particular considerations apply in respect of the use in criminal proceedings of evidence obtained in breach of Article 3. The use of such evidence always raises serious issues as to the fairness of the proceedings, even if not decisive in securing a conviction (e.g. Jalloh v. Germany, No. 54810/00, 11.7.06).  Recital 26a merely notes that “regard should be had” to the case law on Article 3. This is disappointingly weak phrasing for such an essential protection.


Governments are constantly struggling to balance security fears with a respect for individual human rights. This is complicated further by the growing disconnect between citizens and their governments which, in itself, presents a challenge to the legitimacy of political actions. The result is that we have begun to lose faith in the capacity of our criminal justice systems to tackle crime and so we start to look for shortcuts to restore an order we believe has been lost. All too often, crime control has become mired in the kind of political debate which looks for simple answers. This makes it easy to overlook the fact that our criminal justice systems do not exist solely to churn out speedy convictions. It allows us to forget that suspects are individuals who have not yet been proved guilty of any offence.

In this context, an EU Directive restating the importance of the presumption of innocence is a welcome step.  But does this instrument go far enough? Based on the analysis above, my answer would be no.  There are three key reasons for this conclusion: first, standard setting has been built on assumptions rather than based on an empirical understanding of the operation of criminal justice systems and the reasons why current standards fail; second, the Directive does not consistently shore up the basic requirements of the ECHR and its case law despite the non-regression clause in Article 12; and third, the Directive fails to reference effectively previously agreed EU instruments to create a holistic framework for the protection of fundamental rights.

Under Article 13, the Directive is to be transposed 24 months after its publication. The true test of its efficacy will lie in its capacity to challenge unlawful practice.

Photo credit: The
Barnard & Peers: chapter 9, chapter 25

[1] Fair trials: civil liberties MEPs back new EU rules on presumption of innocence, LIBE Press release, 10.11.15.
[2] For example, see the criminal courts charge Guardian Editorial, 18 October 2015. See also Access to Justice: A Comparative Analysis of Cuts to Legal Aid, Report of the Monash Warwick Legal Aid Workshop, 2014.
[3] See also, FTI, Presumption of innocence directive agreed, 11 November 2015.

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