APPENDIX 4
Memorandum by the Criminal Bar Association
RESPONSE TO THE FINAL REPORT OF EUROPEAN
CONVENTION WORKING PARTY X (10)
1. INTRODUCTION
The CBA have already responded to the proposals
by the European Commission's Committee of Experts "Corpus
Juris" and the Green Paper on Criminal Law Protection of
the Financial Interests of the European Community. In view of
the identity of a number of the issues and considerations in those
papers and the Report of Working Party X [hereafter WP], our response
to the Green Paper is attached.
We note the contents of the Introduction and
the key objectives of the EU as set out in agendas agreed at Tampere
and Nice. As to the first of the "golden rules", we
are cautious about endorsing such an objective in view of the
potential implications of a "common legal framework".
The extent and detail of the framework imposed on member states
and its interaction with national systems is a matter of considerable
concern to us.
2. LEGISLATIVE
PROCEDURES
We have no comment on the First Pillar measures
as to asylum, immigration, border management nor co-operation
in civil matters.
Police and Judicial cooperation on criminal matters
Whilst these reforms are essentially political
matters and have apparently been agreed at Tampere, we remain
concerned about the workability of mutual recognition. We are
also not persuaded that individuals' rights and freedoms will
be adequately protected.
Approximation in certain areas of substantive
criminal law
We agree with this proposal, subject to consideration
of crime definitions in any particular case. There is already
a high degree of correlation of such definitions.
However, the adoption of minimum rules on
the constituent elements of certain offences to be included
in the Treaty, appears to go further and may involve a degree
of uniformity which is incompatible with national systems and
to that extent, objectionable.
The same reservations may be expressed in relation
to similar proposals for criminal procedure. We repeat
our view that if such rules are to interact with national systems
there may be real difficulties in their operation and furthermore
there may be valid concerns that the rights and protections enjoyed
by litigants before national courts would be adversely affected.
We are content to endorse what is said on the
topics of police and judicial co-operation and measures on
crime prevention.
Whether such matters as crime definitions and
rules of criminal procedure should be decided by qualified
majority voting is, again, essentially a political matter.
However if it is adopted, our concerns as to the introduction
of such measures are reinforced, notwithstanding the preservation
of the unanimity rule in certain cases.
STRENGTHENING OPERATIONAL
COLLABORATION
We have in the past endorsed increased and strengthened
cross-border cooperation and measures to achieve this eg the development
of Union bodies. In particular we support the proposals in relation
to Europol and Eurojust. We consider the development
of Eurojust could effect a significant advance in those areas
which are not functioning effectively and in respect of which
EU-wide substantive reforms are proposed.
The WP's view as to the jurisdiction of the
European Court goes hand-in-hand with the proposals for
law reform. It is by no means clear how the extended jurisdiction
would coexist with those of the national courts and how their
respective jurisdictions would be exercised. For example, there
may be real difficulties in a party exercising his rights in proceedings
before a national court in relation to an EU measure within the
competence of the European Court. It is just as well that the
WP recommends reform of the Court to cope with the increased workload.
14 March 2003
Annex
RESPONSE OF THE CRIMINAL BAR ASSOCIATION
TO THE EUROPEAN COMMISSION'S GREEN PAPER ON "CRIMINAL LAW
PROTECTION OF THE FINANCIAL INTERESTS OF THE EUROPEAN COMMUNITY
AND THE ESTABLISHMENT OF A EUROPEAN PROSECUTOR"
1. INTRODUCTION
The European Commission [EC] published the Green
Paper with the above title in December 2001. Consultation is taking
place in 2002 and the EC will announce its conclusions in 2003.
It is envisaged there will be a wide-ranging public debate on
the content of the Green Paper, followed by proposals by the Commission
to the next inter-governmental conference [IGC] for the establishment
of a European Public Prosecutor.
In 1997 a body of academics produced a report
entitled "Corpus Juris" which was part of European Legal
Area Project under the Directorate of Financial Control of the
EC. The report set out a self—contained, separate body of
law and code of procedure which would apply throughout the EU
to all cases of fraud involving the assets, income and expenditure
of the European Community. The rationale for the study was the
extent of fraud involving Community funds, the need to protect
them and the failure of the existing systems in Member States
to do so. This failure arises from the inconsistencies and conflicts
between national legal systems and the many obstacles and difficulties
experienced in practice in the enforcement of national laws in
cases of fraud involving Community financial interests [call it
"eurofraud"].
In January 1999 the CBA produced a written response
to Corpus Juris, which in the light of the content and ambit of
the Green Paper remains relevant and we adopt it as a pre-amble
to and as part of these submissions. It was also submitted to
the House of Lords Select Committee on the European Communities
[chaired by Lord Hope] which considered and produced a report
on "Corpus Juris" in May 1999. Oral evidence on behalf
of the CBA and the Bar European Group was given by Clare Montgomery
Q.C. to that committee. The HOL Report closely reflected the overall
position we had adopted.
2. THE GREEN
PAPER
Twin concerns on the part of the EC provide
the basis and the reason for the establishment of an EPP. They
are the same as those underlying "Corpus Juris" and
they are firstly, the scale of "eurofraud" [said to
be 400m euros in 1999] and secondly, ineffective law enforcement
in such cases throughout the EU. The latter is due, says the Green
Paper, to the "fragmentation of the European criminal law
enforcement area" and the seventeen [or more] different national
legal orders which render traditional methods of judicial cooperation
"cumbersome" and "inappropriate".
We have no reason to doubt the scale of the
problem which was acknowledged and described by Lord Hope in a
debate in the House of Lords in November 1999 as "extending
far and wide throughout the Member States and beyond" and
amounted to "the Community's resources leaking out in favour
of the criminal".
As to whether the current regime is failing
to work to the extent claimed is a conclusion we have no means
of testing or verifying. At paragraph 2.1.2 it is said that existing
cooperation in criminal matters do not give "an adequate
response" to the question of criminal proceedings in such
cases and conventional tools of judicial assistance are "no
longer suited to the task". Annex 1 [submitted by the EC
to the Nice IGC 2000] restates the various ways in which law enforcement
is impeded or rendered ineffective because of the "fragmentation"
referred to and cites two specific examples. Paragraph 1.3 asserts
"that numerous cases based on Community experience in recent
years testify to persistent obstacles" to successful prosecutions.
No other supporting material is vouchsafed. The claims may be
justified but in view of the fact that the establishment of an
EPP and a common investigation and enforcement area is said to
be the proper response to this situation and the EPP "would
help overcome these difficulties", it is appropriate to pose
the question as to whether the case as claimed is made out.
3. THE CURRENT
ARRANGEMENTS FOR
INVESTIGATION AND
PROSECUTION IN
"EUROFRAUD" CASES
Article 280 of the EC Treaty requires Member
States to take measures to counter fraud affecting the financial
interests of the EC and to coordinate their activities to prevent
such fraud and to protect those interests. The Green Paper proposes
an amendment to this Article to establish the EPP. In 1995 the
Convention of 26th July provided for a protocol for cooperation
between Member States in matters of justice and home affairs [the
"third pillar measures"]. This was followed by the provisions
of the Amsterdam Treaty and the conclusions of the European Council
at Tampere in 1999 attaching a high priority to such measures.
In 2001 the Commission presented to the European Parliament a
draft for a Directive on criminal law protection of the EC's financial
interests.
In addition there are units or departments of
the Commission that have been set up by the Member States to counteract
such fraud. The European Anti-Fraud Office [OLAF]currently has
responsibility for the investigation and prosecution of offences
in this area. The European Judicial Cooperation Unit [Eurojust]
and the European Police Office [Europol] are both "third
pillar" measures recently established to facilitate judicial
cooperation with a view to coordinating prosecutions in cases
of serious and organised crime and to combat and prevent such
crime.
4. THE SCOPE
OF THE
PROPOSALS FOR
AN EPP
We examine in more detail hereafter the effect
of the proposals on our national system but summarise here the
areas which will be significantly affected by them.
— An EPP would be established by Treaty
and Deputy EPP's would be appointed to each Member State.
— The EPP and the European Prosecution
Service will be able to exercise their powers in cases within
their remit throughout the EU taking precedence over domestic
law and procedures.
— The EPP would be responsible for
the investigation and the prosecution of all his cases.
— There would be mandatory referral
by national authorities of such cases to him.
— The territories of the EC would become
for the EPP a common investigation and prosecution area.
— Offences within the scope of the
EPP's powers include any that involve the resources of the European
Community whether its income [customs duties, agricultural levies
or uniform rate VAT] or expenditure [agricultural, industrial
and other grants and payments]. Furthermore "hybrid cases"
[those involving Community and other funds] would also fall within
this definition in which the EPP would prosecute the "Community"
part. These are offences investigated and prosecuted nationally
under present arrangements in particular by HM Customs and Excise.
— The EPP would use national police
resources but would direct the investigations.
— He would select the Member State
in which to bring the prosecution.
— The EPP would determine the charges
and decide whether to commit for trial.
— His actions would be overseen by
a so-called "judge of freedoms".
— The Green Paper envisages common
definitions of and penalties for crimes within the EPP's competence.
— Evidence gathered during the investigation
in whichever jurisdiction shall be admissible at trial provided
its seizure was in compliance with the domestic law of the state
where it was found.
5. THE EFFECT
OF THE
PROPOSALS
We do not seek to offer a political view or
make such a judgment of the desirability or effect of the contents
of the Green Paper. However we are bound to point out the establishment
of the EPP was an important part of the structure advanced in
Corpus Juris about which we expressed our reservations. It is
also noteworthy that Lord Hope and others during the HOL debate
cited the proposals for an EPP as one of those causing the most
concern [one of the others being the removal of jury trial in
such cases]. The over-sanguine view of Lord Wigoder Q.C. that
Corpus Juris was merely a research study and not Commission policy
has proved ill-founded. In the circumstances we feel bound to
point out that these proposals would have a major impact on our
national prosecuting agencies, including the CPS and its head
the DPP, the police and Customs and Excise, the judiciary, the
courts and the legal profession. It would also have an equally
profound impact on suspects and defendants who would be subject
to the new regime.
14 March 2003
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