01.12.2016
The presumption of innocence and procedural safeguards for children
Ed Cape
Professor of Criminal Law and Practice
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Bristol Law School
The presumption of innocence and the right to be present at trial
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01.12.2016
The Directive strengthening certain aspects of the presumption of innocence
• The Directive was formally adopted on 9 March 2016
• The transposition date is 1 April 2018
Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings
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Scope of the Directive
• Applies to natural persons, and not to legal persons
• Applies at all stages of criminal proceedings, ‘from the moment when a person is suspected or accused of having committed a criminal offence… until the final determination of whether that person has committed the criminal offence concerned has become definitive’
Article 2 and Recitals 11‐15
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Presumption of innocence
Suspects and accused persons are presumed innocent until proved guilty according to law
Article 3
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Public references to guilt
• Member states must take necessary measures to ensure that public statements made by public authorities, and judicial decisions other than on guilt, do not refer to a person as guilty where they have not been proved guilty according to law
• This is without prejudice to prosecution acts directed at proving guilt, and to preliminary procedural decisions taken by judicial or other competent authorities
• It does not prevent public authorities from publicly disseminating information on the proceedings where strictly necessary for reasons relating to the investigation or to the public interest
Article 4 and Recitals 16‐19
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Presentation of suspects and accused persons
• Appropriate measures must be taken to ensure that suspects and accused persons are not presented as being guilty, in court or in public, by the use of physical restraint measures
• This does not prevent the use of physical restraint where this is necessary for case‐specific reasons relating to security, preventing absconding, or preventing contact with a third party
Article 5 and Recitals 20 and 21
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Burden of proof
• The burden of establishing guilt must be on the prosecution
• Any doubt as to the question of guilt must be to the benefit of the suspect or accused person
• This is without prejudice to any obligation of the judge or court to seek both inculpatory and exculpatory evidence, and to the right of the defence to submit evidence in accordance with national law
Article 6 and Recital 22
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Right to silence and not to incriminate oneself
• Suspects and accused persons must have a right to silence in relation to the offence of which they are suspected or accused
• Suspects and accused must have the right not to incriminate themselves
• This does not prevent the gathering of evidence by compulsion where that evidence has an existence independent of the will of the suspect or accused person
• The exercise of these rights by a suspect or accused must not be used against them and must not be treated as evidence that they have committed the offence concerned
Article 7 and Recitals 26‐32
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Right to be present at trial
The accused has a right to be present at their trial, subject to ‐
• failure, following timely notice, to appear
• representation by a mandated lawyer appointed by the accused or by the State
Article 8(1) and (2), and Recitals 33‐41
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Right to a new trial
The accused must have a right to a new trial where they were not present at their trial, and the conditions in Article 8(2) were not complied with
Article 9 11
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Remedies
• Suspects and accused persons must have an effective remedy if their rights under the Directive are breached
Article 10(1) and Recitals 44 and 45
• Appropriate measures must be available if the suspect or accused is referred to as guilty contrary to Article 4(1)
Article 4(2)
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Monitoring and data collection
Member States must supply the Commission (every 3 years) with available data showing how the rights in the Directive have been implemented
Article 11 and Recital 46
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Procedural safeguards for children who are suspects or accused
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The Directive on procedural safeguards for children
• The Directive was formally adopted on 11 May 2016
• The transposition date is 11 June 2019
Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings
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The purpose of the Directive
The purpose of the Directive is to establish procedural safeguards to ensure that children, meaning persons under the age of 18, who are suspects or accused persons in criminal proceedings, are able to understand and follow those proceedings and to exercise their right to a fair trial, and to prevent children from re‐offending and foster their social integration
Recital 1
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Scope of the Directive
• Applies to children who are suspects or accused persons in criminal proceedings, until sentence and any appeal
Article 2(1)
• Also applies to children who are requested persons from time that EAW is executed
Articles 2(2) and 17
• Subject to minor offences exception
Article 2(6)
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Right to information
• Right to be informed promptly about procedural rights under the EU Directive on the right to information, and the rights under this Directive
• The point at which information is to be provided varies, but the Letter of Rights must include information about rights under this Directive
Article 4
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Notification and role of the holder of parental responsibility • Information that must be given to a child under Article 4 must also be given to the holder of parental responsibility as soon as possible
• Alternatively, the information must be given to another appropriate adult nominated by the child if providing it to the holder of parental responsibility ‐
• would be contrary to child’s interests
• is not possible because the holder of parental responsibility cannot be contacted
• could substantially jeopardise the proceedings
Article 5 and Recitals 22‐24
• Children have the right to be accompanied by that person during court hearings and other stages of the process at which the child is present
Article 15 and Recitals 57‐59
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Right to a lawyer
• In addition to the right to a lawyer under EU Directive 2013/48/EU, Member States must ensure that children are assisted by a lawyer without undue delay once they are made aware that they are a suspect or accused
• Provision for derogation ‐
• where assistance by a lawyer is not proportionate
• temporarily, in exceptional circumstances
Article 6 and Recitals 25‐28
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Right to legal aid
Member States shall ensure that national law in relation to legal aid guarantees the effective exercise of the right to be assisted by a lawyer pursuant to Article 6
Article 18
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Individual assessment and medical examination
• Child suspects and accused must be individually assessed to ensure that their specific needs concerning protection, education, training and social integration are taken into account
Article 7 and Recitals 35 ‐ 40
• Children deprived of liberty have the right to medical examination without undue delay, in particular, to assess their mental and physical condition
Article 8 and Recital 41
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Recording of interviews
Questioning of children must be audio‐visually recorded where this is proportionate in the circumstances of the case
Article 9 and Recitals 42‐44
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Deprivation of liberty
• Deprivation of liberty must be limited to the shortest appropriate period, and imposed only as a measure of last resort
Article 10 and Recitals 45‐53
• Where possible, appropriate authorities must have recourse to measures alternative to detention Article 11
• Where deprived of their liberty, children must normally be held separately from adults Article 12
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Other provisions
• Criminal proceedings involving children must be treated as a matter of urgency and with due diligence
Article 13
• The privacy of children must be respected
Article 14
• Children have a right to be present at trials and Member States must take all necessary measures to enable them to participate effectively, including the opportunity to express their views
Article 16
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Other provisions
• There must be an effective remedy in the event of breach of the rights under the Directive
Article 19
• Law enforcement and detention staff must receive appropriate training; and judges, prosecutors and lawyers must have specific competence and/or training
Article 20
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