Debbie Sayers, Legal Research
Consultant, http://interalia.org.uk
"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 of
access to a lawyer in criminal proceedings and in European arrest warrant
proceedings (the UK and Ireland have opted out);
· 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.
Conclusion
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 Guardian.com
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.
