If we don't stand up for children, then
we don't stand for much.
Marian
Wright Edelman
Debbie Sayers, Legal Research Consultant, http://interalia.org.uk
Effective human rights protection is fundamental
to any concept of fairness in the criminal justice system. Fairness, however,
is relative: it may require different levels of protection in different circumstances.
Children require special measures of
protection to take account of their particular vulnerability and needs (UN CRC
Committee, General Comment
10,
para 10). International standards confirm state obligations in this regard
(e.g. UN Convention on
the Rights of the Child (CRC), UN Standard
Minimum Rules for the Administration of Juvenile
Justice, the Council of Europe Guidelines of
the Committee of Ministers of the Council of Europe on child-friendly justice.).
The need for extra protection has also been confirmed by the ECtHR which has stated
that the right to a fair trial under Article 6 requires that: “a child charged
with an offence is dealt with in a manner which takes full account of his
age/level of maturity and intellectual and emotional capacities and that steps
are taken to promote his ability to understand and participate in the
proceeding”(T
v. UK, No. 24724/94, 16 December 1999, at [84]).
The Commission states that approximately
1 million children face criminal justice proceedings in the EU each year
(around 12% of the total) (Commission Staff
Working Document 2013). It has gathered data on
child justice and its reports
shows wide variability in practice and procedure between States. The EU has now
agreed the text of a Directive to
establish specific procedural safeguards for child suspects. This is the fifth
in a series of six EU-specific standards, all in the form of Directives, which
have been agreed under a Roadmap for
strengthening the procedural rights in criminal proceedings (on the fourth
measure, on presumption of innocence, see discussion here; on
the sixth proposal, on legal aid, see discussion here). The Directives
attempt to promote consistency in procedural protection within the criminal
justice systems of EU Member States. Measure E of the Roadmap requires special safeguards
to be created for vulnerable suspects. A Recommendation setting
out procedural safeguards for vulnerable persons has already been published. This
post deals with the recently agreed Directive on
child suspects.
The Directive
The Directive is a
lengthy and rather complex document with 39 Recitals and 25 operative Articles.
The text has now been agreed subject to reservations by Romania (in relation
Article 2(3) and Article 9 (1)) and by Poland (in relation to Article 6(8) (b)).
Ireland, the UK and Denmark are not participating in the instrument. Member
States will have three years to transpose the Directive from the date of its
entry into force (Article 23). [Update; the Directive was officially adopted in April 2016].
The Directive’s purpose is “to establish
procedural safeguards to ensure that children who are suspected or accused in
criminal proceedings are able to understand and follow those proceedings, to
enable such children to exercise their right to a fair trial and to prevent
re-offending by children and foster their social integration” (Recital 1). Children
already benefit from all the human rights guarantees available to adults but the
Directive notes that “experience has shown that this in itself does not always
provide a sufficient degree of trust in the criminal justice systems of other
Member States” (Recital 3). The ECHR remains the baseline for any assessment of
the efficacy of new standards. Recital 35 notes that a “higher level of
protection should not constitute an obstacle to the mutual recognition of
judicial decisions that those minimum rules are designed to facilitate. The level
of protection should never fall below the standards provided by the Charter or
by the ECHR, as interpreted in the case law of the Court of Justice of the
European Union and the European Court of Human Rights.”
Legislation which promotes children’s rights
is welcome. However, to be of genuine value, a separate document for child
suspects should add to and build on existing standards in a child specific way.
It must also address the obstacles which prevent current standards working: it
must prioritise the best interests of the child and remove any vagueness and
discretion which may facilitate non-compliance. Fundamentally, it must also be
effectively implemented in practice. This post will consider some of the key
elements of the Directive. It will conclude that the picture is not entirely
rosy.
Scope
Article 3 defines a “child” as “a person
below the age of 18 years”. The relevant
point at which age is assessed is the age at which the individual becomes
subject to proceedings (Recitals 8 and 9) rather than the age at the time of
the offence. In the case of uncertainty, there is a presumption that the person
is a child. Under Article 2(3), the Directive also applies where a child comes
of age during proceedings but only where the application of the Directive, or
some of its provisions, “is appropriate in the light of all the circumstances
of the case, including the maturity and vulnerability of the person concerned”.
Even then. however, Member States may decide that this Directive does not apply
when the person reaches 21. The Directive simply “encourages” Member States to
apply the procedural safeguards where the person is older than 18 and below 21.
The UN Committee on the CRC has stated in General Comment
10
that “every person under the age of 18 years at the time of the alleged
commission of an offence must be treated in accordance with the rules of
juvenile justice”. It is very disappointing that the Directive fails to follow
this approach.
The Directive lays down “minimum rules”
for children in criminal and in European Arrest Warrant (EAW) proceedings
(Article 1). It does not affect national rules determining the age of criminal
responsibility (Article 2(5)). It applies from the time children are suspected
or accused in criminal proceedings until the final determination of the case
including sentencing and appeal (Article 2 (1)). The Directive also applies to children who
are not suspects or accused persons but who, in the course of questioning by
the police or by another law enforcement authority, become so (Article 2(4)).
This mirrors Article 2(3) of the Directive on
the right of access to a lawyer.
Article 17 confirms that the rights set
out in Articles 4, 5, 6, 8, 10, 11, 12, 13, 14, 15 and 18 of the Directive also
apply to EAW proceedings from the time of arrest in the executing Member State (Article
17). It should also be remembered that, although the Directive seeks to give
children rights in EAW proceedings, Article 3(3) of the Framework
Decision on the EAW actually provides a ground for
mandatory non-execution of the EAW where a person, “owing to his age” cannot be
held criminally responsible for the acts on which the arrest warrant is based
under the law of the executing State.
Another concern is that the Directive
restricts its application in respect of minor offences (Recitals 11a-11c).
Article 2(5a) confirms that, in respect of minor offences, where Member States’
law provides for a sanction by to be imposed by “an authority other than a
court having jurisdiction in criminal matters” and the imposition of such a
sanction may be appealed or referred to such a court or where deprivation of
liberty cannot be imposed as a sanction, the Directive only applies to the
proceedings before a court having jurisdiction in criminal matters. A ‘minor’
offence is not defined and there is no penalty threshold. In C-60/12 Baláž, 14 November
2013 confirmed that ‘having jurisdiction in criminal matters’ means that a
court “must apply a procedure which satisfies the essential characteristics of
criminal procedure, without, however, it being necessary for that court to have
jurisdiction in criminal matters alone” (at [36]). This is “an autonomous
concept of Union law” (at [42]).
It is disappointing that the Directive is
only guaranteed to “fully apply” where a child is deprived of liberty irrespective
of the stage of the criminal proceedings. The restrictions on minor offences mirror
those in other Directives (Article 1 (3) of the Directive on
the Right to Interpretation and Translation, Article 2(2) of the Directive of
the Right to Information, and Article 2 (4) of the Directive on
the Right of Access to a Lawyer). But there is no justification for the
imposition of this clause and no explanation of how it sits with current ECHR
obligations. In terms of the exemption for ‘minor offences’, the ECtHR does not
distinguish between different types of offences: the protection afforded by
Article 6 is engaged as soon as a ‘criminal charge’ is brought against an
individual. Engel and Others v The Netherlands No.
5100/71, 8 June 1976 confirms that, when determining whether a ‘criminal
charge’ exists, specific criteria will be considered: (a) the classification of
the offence under the domestic legal system; (b) the nature of the offence; and
(c) the potential nature and severity of the penalty. Even a seemingly minor
offence may have serious consequences for the child. It is disappointing to apply
this unnecessarily restrictive approach to a document designed to protect
vulnerable suspects.
Rights
The Directive sets out a series of
rights.
Right to information: Article
4 creates a duty to inform child suspects “promptly” about their rights in Directive of
the Right to Information and about general aspects of the conduct of the
proceedings. The Letter of Rights required by Directive of
the Right to Information should also set out a child’s rights under this
Directive (Article 4(2)).
Article 4 distinguishes between those
rights in the Directive which children are to be informed about “promptly” and
those they are to be informed about at the at the “earliest appropriate stage
in the proceedings”. There is no justification for such a distinction. Further,
worryingly, under Article 4 (1a), this information can be given orally rather
than in writing which undermines the protection. There is no requirement that
either an appropriate adult or lawyer is present when this information is
handed over or that the information is given in a child-friendly form (the
Directive merely talks of “simple and accessible language”). The Council of Europe Guidelines on
child friendly justice require information and advice to be provided in a
manner adapted to their age and maturity, in a language which they can
understand and which is gender- and culture-sensitive. This is particularly
important when the age of criminal responsibility varies wildly within the EU
(e.g. it is 10 in England and 15 in Denmark).
Handing information to a child is no guarantee they will be able to
understand or use it and a process to verify the child’s comprehension should
have been established.
Right of the child to have the holder of parental responsibility
informed: Article
3 defines the “holder of parental responsibility” (PR) to mean “any person
having parental responsibility over a child”. Parental responsibility means
“all rights and duties relating to the person or the property of a child which
are given to a natural or legal person by judgment, by operation of law or by
an agreement having legal effect. The term includes rights of custody and
rights of access.”
Under Article 5, the state must ensure
that the holder of parental responsibility is provided “as soon as possible” with
the information that the child receives in accordance with Article 4 (see also
Recitals 15 and 15a). However, Article 5(2), provides specific grounds for
using another appropriate adult, albeit one nominated by the child and accepted
as such by the competent authority. The grounds include: if (a) it would be contrary to the best
interests of the child to provide it to the holder of PR or (b) no holder of
parental responsibility can be reached after reasonable efforts have been made
to do so or his or her identity is unknown or (c) because, on the basis of
objective and factual circumstances, providing information to the holder of PR
could substantially jeopardise the criminal proceedings to provide it to the
holder of PR.
Further, if the child has not nominated
another appropriate adult, or if this nominated adult is not acceptable to the
competent authority, “taking into account the best interests of the child”, the
competent authorities may provide the information to another person, including
someone from an authority or responsible for the protection or welfare of
children. As soon as any of these grounds cease to exist, the information
should be provided to the holder of PR. Provisions which too readily allow the
state to appoint the adult supporting the child are of concern.
Right to assistance by a lawyer: The ECtHR has confirmed that, in order for the right to a fair trial to remain “practical and
effective”, access to a lawyer should be provided from the first police
interrogation (Salduz v. Turkey, No.
36391/02, 27 November 2008). Suspects
are particularly vulnerable at the investigation
stage and evidence gathered may determine the outcome of the case. The right of access to legal assistance is
particularly important for vulnerable suspect such as minors (see for example, S.C. v. the United Kingdom, No.
60958/00, 15 June 2004).
Article 6 re-affirms the right of access
to a lawyer. It also confirms that the right is about exercising the “rights of
defence effectively” (Article 1a.). Under Article 6(2), this assistance should occur
“without undue delay once [Member States] are made aware that they are
suspected or accused of having committed a criminal offence” from whatever
point is earliest: (a) before they are questioned by the police or by another
law enforcement or judicial authority; (b) upon the carrying out by investigating
or other competent authorities of an investigative or other evidence-gathering
act in accordance with point (c) of paragraph 3; (c) without undue delay after
deprivation of liberty; (d) where they have been summoned to appear before a
court having jurisdiction in criminal matters, in due time before they appear
before that court.
Under Article 6(3) (see also Recital
16a), assistance “includes” (so is not limited to): the right to meet in
private and communicate with the lawyer representing them. The confidentiality
of communications between the child and their lawyer is protected under Article
6(4) (see also Recitals 17c and 17d); the right to be assisted by a lawyer when
they are questioned, and that “the lawyer can participate effectively during
questioning” (as with other Directives this participation is “shall be in
accordance with procedures under national law); and the right to be assisted by
a lawyer during investigative or evidence-gathering act such as: (i) identity
parades; (ii) confrontations; (iii) reconstructions of the scene of a crime.
However, Recital 16b also sets out the circumstances
in which the right to a lawyer does not arise, e.g. including verifying the
child’s identity, whether they have a weapon or taking fingerprints or
photographs. These acts potentially carry significant consequences and it is
unhelpful to have limited the scope in this way.
Further, despite the importance of this
right, a series of derogations and discretionary provisions potentially
undercut the protection. For example, there is a proportionality clause in Article
6 (5) (see also Recital 17) which permits Member States, provided that this is
in conformity with the right to a fair trial, to derogate from the obligations
set out in Article 6(2) where assistance by a lawyer “is not proportionate in
the light of the circumstances of the case, taking into account the seriousness
of the offence, the complexity of the case and the measures that could be taken in respect of the alleged offence, it
being understood that the best interests of the child shall always be a primary
consideration”. Further, under Article 6(8), “in exceptional circumstances and
only at the pre-trial stage”, Member States may temporarily derogate from the duty
to provide the assistance of a lawyer “to the extent justified in the light of
the particular circumstances of the case” on one of the following “compelling
reasons”: (a) where there is an urgent need to avert serious adverse
consequences for the life, liberty or physical integrity of a person; (b) where
immediate action by the investigating authorities is imperative to prevent
substantial jeopardy to criminal proceedings in relation to a serious offence.
In applying this paragraph “the best interests of the child” must be taken into
account. This can only be decided on “a case-by-case basis” either by a
judicial authority or other competent authority on condition that the decision
can be submitted to judicial review.
Finally, whereas the Directive on the
right to a lawyer permits suspects or accused persons to waive their right, the
original Commission proposal
prohibited waiver in the case of children. It is disappointing this has been
dropped. Ensuring every child gets legal representation would have been an
important step forward in ensuring rights are protected.
Right to an individual assessment: Article 7
requires Member States to assess children individually to ensure that their
specific needs concerning protection, education, training and social
integration are taken into account. The costs are generally to be met by the
state (Article 21). The assessment shall
“take into account the personality and maturity of the child, their economic,
social and family background, as well as any specific vulnerabilities of the
child” (Article 7(2) and Recital 19a). The nature and extent of the assessment
will depend on the circumstances of the case (Article 7 (2a)). The assessment
should “be carried out with close involvement of the child” and be conducted by
“qualified personnel, following, as far as possible, a multidisciplinary
approach and involving, where appropriate, the holder of parental
responsibility or another appropriate adult and/or specialist professional”
(Article 7 (5)). If circumstances change, an assessment may be updated (Article
7(6)).
The individual assessment, which should
take place at the earliest appropriate stage of the proceedings and, before
indictment (Article 7(4a)), will note information which might be of use by the
competent authorities when making decisions about the child. However, the absence of an early individual
assessment will not stop an indictment being presented if this “is in the best
interests of the child” provided that the individual assessment is available at
the beginning of the trial (Article 7(4b) and Recital 19d). Additionally,
derogation from this provision is possible if “warranted by the circumstances
of the case, and provided that this is compatible with the child's best
interests” (Article 7 (7) and Recital 19e). Again, the creation of rule
accompanied by exceptions may compromise consistency.
Right to a medical examination: Children who are
deprived of liberty have the right to a medical examination without undue delay
(Article 8 and Recital 20). One concern here is that the Directive uses the
term ‘undue delay’ rather than requiring the examination to be done promptly
(compare this with that set out in in General Comment
10).
The examination can be required by the competent authorities or by (a) the
child, (b) the holder of PR responsibility or another appropriate adult as
referred to in Article 5; or (c) the child’s lawyer (Article 8(2). The costs
are generally to be met by the state (Article 21).
The examination is to assess the general
mental and physical health of the child. The examination should be as
non-invasive as possible and carried out by a physician or another qualified
professional. It will be recorded in writing (Article 8 (3)) and may lead to
medical assistance or may help determine the capacity of the child to face
questioning, other investigative or evidence gathering acts or any measures
taken or envisaged against the child (Article 8(1a)). It can be repeated where
required (Article 8(4)).
The Directive should have guaranteed a
right of access to medical treatment if directed by a doctor.
The restriction of this protection to
those who are deprived of their liberty is a concern as medical examinations
may be important to any child facing criminal proceedings. Deprivation of
liberty is not defined but presumably is intended to relate solely to those
detained in prison. In the juvenile justice system, children may also be
obliged to reside with foster carers or have their liberty restricted in other
very significant ways. The ECtHR has said that the “difference
between deprivation of and restriction upon liberty is … merely one of degree
or intensity, and not one of nature or substance” Guzzardi v Italy. No.
7367/76, 6 November 1980. This issue is not addressed in the Directive.
Audio-visual recording of questioning: Member
States will have to ensure that questioning of children by police or other law
enforcement authorities is audio-visually recorded but only “when this is
proportionate in the circumstances of the case, taking into account inter alia
whether a lawyer is present or not and whether the child is deprived of liberty
or not, it being understood that the child's best interests shall always be a
primary consideration” (Article 9 (1) and Recital 21a). The proportionality condition needlessly
weakens this protection by introducing an unacceptably wide scope of discretion
and consequently potential variability.
If there is no audio-visually recording,
questioning is to be recorded in another appropriate manner, and including “by
making written minutes, which are duly verified” (Article 9(2)). By whom? The
child? This should have been more clearly set out.
Limitation of deprivation of liberty: Article 10 is a welcome
re-confirmation that any “deprivation of liberty of a child at any stage of the
proceedings shall be for the shortest appropriate period of time” and that it
should be a “last resort”. It also confirms that the “the age and individual
situation of the child, and of the particular circumstances of the case” should
be taken into account and sets out the need for a reasoned decision and
periodic review. However, these really are
the some of the most basic minimum requirements of lawful practice. Article 10
does not define deprivation of liberty, nor does it restate or refer to the
clear requirements attached to any deprivation of liberty established by
Article 5 ECHR and its case law which are also reflected in Article 48 of the
EU Charter not least those concerning the need for prompt determination of the
decision to detain.
Article 11 and Recital 25a confirm that
competent authorities shall have recourse to alternative measures instead of
detention but, again, this requirement is undermined by the requirement that
this need only happen “where possible”.
Specific treatment in the case of deprivation of
liberty: Article
12 details minimum requirements for children who are detained. They must be
held separately from adults “unless it is considered in the child's best
interest not to do so” (in accordance with Article 37(c) of the UN CRC). In
police custody, there is an additional exception as children need not be held
separately if “in exceptional circumstances, it is not possible in practice to
do so, provided that this is compatible with the child's best interests”
(Article 12 (1a) and Recital 26a). Additionally, Member States have a
discretion to hold children separately when they reach the age of 18 years but
they must still take into account the child’s individual circumstances as well
as the best interests of children who are detained with them (Article 12(2)). However,
General Comment
10
confirms that the ‘best interests’ test here should be interpreted narrowly and
that “the child’s best interests” does not mean for the convenience of the
States parties”. This requirement should have been replicated on the face of
the Directive.
When in detention, Article 12(4) and
Recitals 26c and 26d require Member States to take appropriate measures to: (a)
ensure and preserve their health and their physical and mental development; (b)
ensure their right to education and training, including for children with physical,
sensory and learning disabilities; (c) ensure the effective and regular
exercise of their right to family life; (d) ensure access to programmes that
foster their development and their future integration into society; and (e)
ensure respect for their freedom of religion or belief. These measures do not
go far enough and do not match the standards set out in General Comment
10,
paras. 85-89.
Children are also entitled to meet the
holder of PR as soon as possible but only “where such meeting is compatible
with investigative and operational requirements” and only where the provisions
of Article 5 relating to the designation of another appropriate adult have not
been applied (Article 12(5)). It is deeply disappointing that operational
demands may be placed above a child’s right to see his/her parent/carer.
Timely and diligent treatment of cases: Article 13
requires that all appropriate measures should be taken to ensure that criminal proceedings
involving children “are treated as a matter of urgency and with due diligence”.
This is in line with ECtHR case law on the right to a trial within a reasonable
time. Under Article 18a an effective remedy under national law should be
provided in the event of a breach of Directive rights.
The requirement that appropriate
measures should also be taken to ensure that children are “always treated in a
manner which protects their dignity and which is appropriate to their age,
their special needs, their maturity and level of understanding, and bearing in
mind any communication difficulties they may have” (Article 13 (2)) is welcome.
Right to protection of privacy: Article 14
protects the privacy of children during criminal proceedings. Court hearings
involving children should ordinarily be held in the absence of the public, or
courts or judges to decide to do so. This reflects current human rights
standards in Article 6 ECHR (e.g., see T
v. UK, No. 24724/94, 16 December 1999) and Article 47 of
the EU Charter.
Right of the child to be accompanied by the holder of
parental responsibility during the proceedings: Article 15 and
Recitals 29 and 29 confirm the right of the child to be accompanied by the
holder of PR during court hearings. This can be limited on the same conditions
as Article 5(2). Article 15 similarly permits the state to appoint an
appropriate adult where an alternative is not acceptable.
Children also have the right to be
accompanied during other stages of the proceedings but only where the state
considers that: (a) it is in the interest of the child to be accompanied by
that person; and (b) the presence of that person will not prejudice the
criminal proceedings. The state is given total discretion and the Directive
should have been far clearer on a child’s rights in this regard.
Right of children to appear in person at, and
participate in, their trial: Article
16 confirms a child’s right to be present at, and participate effectively in,
their own trial. This includes giving them the opportunity to be heard and to
express their views. If a child is not present at their trial, the Directive
provides the right to a new trial, or another legal remedy, in accordance with
and under the conditions set out in Directive on
the presumption of innocence. The requirements of Article 6 ECHR and Articles
47 and 48 of the EU Charter would require nothing less.
Right to legal aid:
Article
18 requires that national law in relation to legal aid guarantees the effective
exercise of the right to be assisted by a lawyer as referred to in Article 6.
The reference to national law does not help promote standards in view of the
widespread inconsistency and variability (leading to the Commission’s Recommendation on
the issue). The interests of justice test indicates that free legal assistance
may be required for vulnerable groups such as minors (Quaranta v.
Switzerland, No. 12744/87, 24 May 1991, para. 35.
This could have been clearly restated.
Other
provisions
Training:
Article
19 deals with training for law enforcement authorities, staff of detention
facilities, the judiciary, prosecutors and lawyers. This is a welcome and
potentially practical step and should be supported by further EU wide guidance drawn
from universal standards.
Data recording:
Article
20 requires that Member States send data to the Commission five years after the
Directive enters into force (and every three years thereafter) showing how the Directive
has been implemented. The absence of reliable data on children’s rights in
criminal proceedings has previously been noted by the Commission (see the
report here) so
this is a welcome obligation.
Conclusion
Clear standards protecting children’s
rights are welcome but, based on the summary above, I have the following
general concerns:
1. The
failure to mainstream these protections: they are placed in a separate document
which will need to be compared with others. Should, they not run like a thread
through all the standards? Developing safeguards incrementally may invite
inconsistency.
2. While
some of the Directive’s provisions are new and child-specific, others seem to
be little more than a reiteration (and sometimes a partial one) of the minimum
requirements which exists in relation to all defendants.
3. The
Directive does not always reflect international standards of protection.
4. The Directive
is made potentially less progressive by a series of exceptional and
discretionary provisions which may facilitate variable practice.
Additionally, in reality, to make a
difference any new standards must actually be enforced in practice. We must
ask: will these standards work where others have failed?
Barnard & Peers: chapter 25
JHA4: chapter II.4
Photo credit: http://chelseaclockwallpaper.blogspot.co.uk/2012/12/juvenile-justice-system.html
