Select Committee on Home Affairs Written Evidence

3.  Memorandum submitted by the Criminal Bar Association of the Bar Council of England and Wales

  The Bar Council was delighted to be invited to meet with the House of Commons Home Affairs Committee on the occasion of its recent visit to Brussels as part of its on-going inquiry into JHA issues at EU level. We now have pleasure in submitting written representations for your consideration. We have taken the opportunity to provide a short description of several key concepts that feature in JHA policy making, in order to put our representations in context.

  We would of course be happy to provide any further input or assistance that the Committee would find helpful, on this or future work.


"Mutual recognition"

  1.  The concept of mutual recognition is one of the cornerstones of judicial and law enforcement cooperation between EU Member States. It has been explicitly accepted as the appropriate basis on which to progress this cooperation in all JHA work programmes adopted by the Commission under the direction of the European Council over the past seven years. The reason for this is precisely that this principle provides the basis upon which the Member States can retain autonomy over their criminal law systems, safe in the knowledge that judgments and decisions derived therefrom will be recognised (and as necessary, enforced) by another. That is to say:

    (a)  That such decisions are made in accordance with the due and proper application of legal principles as they exist in the Member State where the judgment/decision was made.

    (b)  That there is confidence and trust that the judgment/decision was made by a legislative/legal process that is fair and meets at the least the minimum standards laid down by the ECHR and other international instruments.

    (c)  That the judgment/decision will be enforced as if it had been made by the executing Member State.

  2.  The concept of mutual recognition is forged out of the principle of the comity of nations, and (within reasonable limits) the right to self-determination. It is not to be equated with "harmonisation" or "approximation" of rules, on which, see below.

"Harmonisation" and "Approximation"

  3.  It is sometimes said that those two expressions mean slightly different things although they tend to be used interchangeably.

  4.  "Harmonisation" does not necessarily mean that rules are mirrored exactly across all Member States. Harmonisation might have this effect, but it is more likely that the laws of Member States will broadly correspond but they will not be identical. The UK Misuse of Drugs Act 1971 is a good example of harmonisation of laws on a global scale. It is in this sense that there is harmony (ie the absence of discord) but a unified set of rules need not exist.

  5.  The word "harmonisation" is liable to mislead and for that reason we prefer to speak of "approximation" of rules. It is sometimes said that "approximation" is a process that falls short of achieving "harmonisation".

"Practical cooperation"

  6.  The expression "practical cooperation" appears in a number of documents that pertain to JHA issues, but it is not an expression that has a formal definition. One would hope that all cooperation is "practical" ie that action taken will be constructive and serve a useful purpose. It is assumed that the expression "practical cooperation" embraces both formal[71] and informal arrangements (vertical and horizontal). Formal arrangements are those that are specifically catered for in legislation, whereas informal, or voluntary, arrangements are not. The disadvantages of the latter include lack of transparency, accountability, and legal authority.

  7.  The Commission Staff Working Document on Strengthening Practical Cooperation in relation to the Common European Asylum System [SEC(2006) 189; 17.2.06][72] usefully illustrates action that states might take to improve cooperation, for example:

    (a)  Formulating an action plan,

    (b)  Analysis and evaluation of existing legislation,

    (c)  Cost/benefit/merit analysis of various systems for dealing with a particular issue,

    (d)  Organising Expert Groups and Workshops [training, quality, best practices],

    (e)  Information sharing by creating a "common portal" [an entry point for information],

    (f)  Formulating common guidelines,

    (g)  Address transparency, training, data protection, etc,

    (h)  Provision of translation services,

    (i)  Setting up a network of Member State liaison officers/contacts.

"Organised crime"

  8.  This expression is widely used—but why? "Serious crime", "cross border crime" are more precise and more readily understood. Much serious crime (eg robbery) is not organised, and may be committed by persons acting alone or in small groups. A less serious offence (eg burglary) may have serious effects. The processes of investigating, prosecuting, and sentencing might be improved were information that is held in a foreign jurisdiction made available to the Member State where the offending conduct took place.

Appetite for harmonisation

  9.  The UK is not alone in wishing to preserve rules, customs and traditions that it cherishes: every Member State is similarly minded.

  10.  There is no evidence of a popular appetite for harmonisation greater than is necessary to provide security, freedom and justice to citizens of the EU. Accordingly, the harmonisation of rules within a given area of law is palatable (or at least tolerable) where there is a demonstrable need to act, rather than the pursuit of visionary goals. Professor John Spencer QC has advanced a reasonable and powerful argument for the construction of a single European prosecution system,[73] but we do not detect popular appetite in the United Kingdom for it (doubts remain about the merits of such a system). We also see force in the criticism that "too much EU criminal law policy is simply a quick and sporadic reaction to specific events" which are then applied to other areas of law without adequate reflection.[74]

Whether further harmonisation is desirable

  11.  Whether harmonisation is desirable depends on what is at stake. In our view, there is no realistic prospect of a European Criminal Code. Developments are likely to be piecemeal and confined to areas where harmonisation is needed, and where cooperation between agencies is unlikely to be effective, or where existing arrangements have not been as successful as hoped.

  12.  Whilst we do not (at this stage) suggest areas where harmonisation might be beneficial, we recognise that some problems would be more readily resolved by harmonising rules that produce conflicts or tensions, or which otherwise make the desired practical cooperation and mutual recognition between Member States unworkable (for example, problems associated with ne bis in idem; or determining the appropriate trial venue for those accused of cross-border crime, or even, in the longer term, more sensitive matters of public policy such as the minimum age of criminal responsibility).

Harmonisation and mutual recognition—linked?

  13.  There exists much commentary concerning this subject. We think that it is sufficient to refute the notion that the concepts of harmonisation and mutual recognition are inextricably bound together or linked. There might be circumstances in which state A recognises a decision made in state B that operates (unlike state A) an inquisitorial system of justice, and whose substantive law describes the underlying offence in terms markedly different from those in State A. For example, the UK not only meets its obligations under the two Money Laundering Directives currently in force, but it has gone further and reduced the threshold of mens rea from that stated in the Directives.[75] Harmonisation would not necessarily remove all of the problems associated with mutual recognition because local differences are likely to remain.

  14.  That said, we are of the opinion that, for Mutual Recognition to achieve its full potential, some degree of harmonisation of the concepts on which it rests, at least as regards cross-border cases, is inevitable. Mutual recognition is based on mutual trust, and that trust is enhanced where there is greater understanding of, and agreement on, underlying concepts. Indeed, there already exist examples of this on the statute books, most notably the European Arrest Warrant, which applies to 32 offences the definitions of which have been approximated for this purpose.

  15.  We would stress that, in accepting that some approximation of laws may be necessary to facilitate the application of Mutual Recognition measures, we are not thereby conceding that that approximation should also apply to purely domestic matters, although inevitably that line will become increasingly blurred. We consider that that approximation must first and foremost be proportionate to, and be based on, demonstrable need, aimed at furthering the EU's area of freedom, security and justice.

  16.  We are mindful of Art 29 TEU (as amended by the Nice Treaty) which provides:

    "Without prejudice to the powers of the European Community, the Union's objective shall be to provide citizens with a high level of safety within an area of freedom, security and justice by developing common action among the Member States in the fields of police and judicial cooperation in criminal matters and by preventing and combating racism and xenophobia.

    That objective shall be achieved by preventing and combating crime, organised or otherwise, in particular terrorism, trafficking in persons and offences against children, illicit drug trafficking and illicit arms trafficking, corruption and fraud, through:

    —  closer cooperation between police forces, customs authorities and other competent authorities in the Member States, both directly and through the European Police Office (Europol), in accordance with the provisions of Articles 30 and 32,

    —  closer cooperation between judicial and other competent authorities of the Member States including

    —  cooperation through the European Judicial Cooperation Unit ("Eurojust"), in accordance with the provisions of Articles 31 and 32,

    —  approximation, where necessary, of rules on criminal matters in the Member States, in accordance with the provisions of Article 31(e). "

  17.  Art. 31 of that Treaty provides [emphasis supplied]:

    "1.  Common action on judicial cooperation in criminal matters shall include:

    (a)  facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States, including, where appropriate, cooperation through Eurojust, in relation to proceedings and the enforcement of decisions;

    (b)  facilitating extradition between Member States;

    (c)  ensuring compatibility in rules applicable in the Member States, as may be necessary to improve such cooperation;

    (d)  preventing conflicts of jurisdiction between Member States;

    (e)  progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking."

  18.  The reference to "decisions" in Art 31.1(a) appears wide enough to encompass many decisions, including acquittals, and decisions that concern pre-trial and post-trial matters.

  19.  Although there is an argument for saying that Article 31.1(e) is limited to the harmonisation of penalties,[76] we suggest that that (e) includes the constituent elements of offences.


I.  Developing Practical Cooperation

20.   Q.1:  What benefits have accrued so far from practical co-operation between law enforcement and judicial authorities?

  Consideration should be given to the disadvantages of practical cooperation and not just its benefits.


    —  Improved evidence gathering by law enforcement agencies;

    —  More effective investigations (investigations are more thorough);

    —  Enhanced prospect of tackling crime including cross-border crime;

    —  Improved/enhanced intelligence held by/shared between agencies;

    —  More effective prosecutions or other forms of case disposal (civil/regulatory options).


    —  Lack of regulation/unclear legal base;

    —  Lack of transparency—where are the protocols/agreements to be found by persons outside of the agencies involved?

    —  Potential lack of safeguards for persons affected by state actions in respect of systems that are designed to promote cooperation between agencies/states;

    —  Lack of accountability; therefore lack of independent scrutiny to critically examine effectiveness and to determine whether and where there is room for improvement;

    —  Lack of effectiveness—given absence of harmonisation or approximation of rules.

21.   Q.2:  What are the lessons of practical co-operation for European policy and legislation?

  Achieving cooperation brings into sharp relief the differences that exist in the constitutional, legislative, and legal processes of Member States. Cultural differences must be kept in mind. Those differences tend to define the limit of practical co-operation. Advancing or improving the way things are done is achievable only where there is consensus. The upshot is that practical cooperation between States is liable to be patchy. There might be greater cooperation between some Member States than others, resulting in an imbalance in the way things are done across the EU (eg money laundering agreements have historically been difficult to obtain in the same terms across the EU). Enlargement to 25 Member States (soon to be 27) has increased the problem: greater variations of systems and rules etc. However, practical co-operation can also take the lead in shaping European policy and legislation. In its November 2006 Report to the Council on the review of the Hague Programme, the Finnish Presidency of the EU expresses concern that little or no progress has been made to implement some areas of The Hague Programme.[77]

22.   Q.3:  How effective is Eurojust in spreading best practice?

  There has been much praise for Eurojust in achieving greater cooperation, offering advice and assistance, and mediating. There are concerns about transparency, accountability, and ensuring that the interests of third parties, suspects and defendants are protected.

23.   Q.4:  In which areas does the UK government want to advance more practical co-operation measures?

  [Not applicable].

24.   Q.5:  What benefits does the government see from practical co-operation over legislative solutions?

  [Not applicable].

25.   Q.6:  What should be the role of Europol, Interpol and Eurojust in facilitating practical co-operation?

  The position of suspects, defendants and third parties affected by state action ought to be considered. The UK has been ready and quick to press for action in connection with law-enforcement, but its response to EU initiatives regarding procedural safeguards for suspects and defendants, has been disappointing and, frankly, inexplicable on the merits.

II.  Mutual recognition: development of minimum standards

26.   Q.1:  In which areas is mutual recognition currently employed (for example recognition of judicial judgements in other member states)?

  See Appendix "A".

27.   Q.2:  How has the principle, including minimum standards and protocols, worked in these areas?

  Our response to this question is founded largely on anecdotal accounts but, subject to that caveat, our information is that the EAW has proved successful in bringing persons within the jurisdiction of the United Kingdom. That said, there remain some concerns about the process [eg issues concerning dual criminality]. We echo the remarks of Nicola Padfield that "a policy of `minimum rules' is clearly dangerous for the long term guarantee of individual rights".[78]

28.   Q.3:  Is it an effective approach, including in terms of cost?

  The word "harmonisation" is often misunderstood—there is a need for clarity and wider awareness about what is meant by "harmonisation" (see above under definitions). The word does not mean the creation of rules that mirror each other ("carbon copies"). Harmony imports recognition that rules might be similar in nature (as between legal systems) but that differences exist. However, the rules broadly correspond and differences do not constitute impediments to mutual cooperation and/or enforcement of judgments/orders. As stated in Part I above, for these reasons we prefer to use the word "approximation".

29.   Q.4:  What are the limitations of mutual recognition as a cornerstone of co-operation, for example in cases such as the European Arrest Warrant where there are controversies over dual criminality?

  We have briefly addressed this issue in our introductory remarks.

30.   Q.5:  What have been the successes, and how might these be built on?

  We have briefly discussed possible options in our remarks concerning "practical cooperation" (above).

31.   Q.6:  What is the UK government's position on mutual recognition as opposed to practical co-operation?

  [Not applicable]

III.  Current progress in and appetite for harmonising the criminal justice system

32.   Q.1:  How do proposals for harmonisation of criminal law across member states substantially differ from mutual recognition?

  See above.

33.   Q.2:  What are the implications for the UK in harmonising criminal law and systems?

    —  An alignment of definitions of criminal conduct (the old chestnuts are abortion and euthanasia—are they murder?).

    —  Determining what conduct is to be criminalised (this is happening anyway—eg environmental law (though we note that this development is under the Community Pillar)—but the efficacy of criminal sanctions is very much open to question in academic and legal circles. We, in the United Kingdom, have barely used the criminal sanctions for breach of copyright although they have been available by statute for 10 years now. Breach of copyright is seen as a low priority by the CPS in terms of resources, and essentially a civil dispute).

    —  The imposition of maximum and minimum sentences for a variety of crimes—hence losing judicial discretion (ironic, given the recent changes in the US where the Federal Sentencing Guidelines which imposed a straitjacket on sentencing have now been judged unconstitutional).

    —  Legislating a requirement to impose pre-trial custody for some offences; or equally accepting a prohibition on pre-trial custody for more minor offences. For example, some countries in the EU forbid pre-trial custody where the offence carries up to a maximum of 12 months imprisonment.

    —  Legislating the rationalisation of the minimum age of criminal responsibility—currently the age varies from seven (Ireland) to 17 (Portugal).

    —  The introduction of Roman law principles of investigation (Investigating Magistrate) and evidence (eg all hearsay is admissible—its status only goes to weight). However, the domestic rules relating to hearsay evidence have been extensively revised by Part 11, Chapter 2 of the Criminal Justice Act 2003: and see the case of R v Silcock and Levin [2004] EWCA Crim 408, in the context of confiscation proceedings (such proceedings, following conviction, are criminal in nature but aspects of civil procedure apply to them).[79]

    —  Wholesale changes to rules of evidence and to rules of procedure including the presumption of innocence.

    —  The introduction of a standard definition of ne bis in idem—we have an offence-based test; on the whole Europe (and the ECJ) favours a conduct-based test: and see Gozutok and Brugge (2003) ECRI5689, Miraglia [C-69/03]], Gasparini [C-467/04], Bouwens [C-272/05], Kretzinger [C-288/05], and more recently Van Esbroeck [C-436/04; 9th March 2006].[80]

    —  The introduction of a unified test of jurisdiction over criminal matters—particularly complicated in cross-border offences. The Commission's current Green Paper suggests inter alia, the establishment of a new EU body to choose the jurisdiction of trial where two or more countries are unable to agree. Such a choice would of necessity not only require one state (which may be short of resources, or have low human rights priorities) to prosecute; but also forbid the second state from prosecuting—thus impinging on sovereignty. Such a body ought not to be established without addressing its legal status, its independence, and its accountability.

    —  Legislating minimum defence safeguards (that should not be too much problem for us, but may indeed be very difficult for accession states with small budgets).

34.   Q.3:  Would particular areas benefit from harmonisation on issues such as migration, serious crime cases and terrorism, rather than practical co-operation or mutual recognition?

  We have briefly addressed these questions in our introductory remarks and observations. We are willing to elaborate if required to do so, and would welcome being consulted on a case-by-case basis as relevant proposals arise.

IV.  Process of decision-making on JHA issues at EU level

35.   Q.1:  What implications might use of the passerelle have for the UK's legal and judicial systems?

   Enlargement of the EU to 25 Member States (soon to be 27) has reduced the likelihood of reaching unanimity in relation to third pillar measures. On many files, most notably the proposal on procedural safeguards, this has already resulted in progress becoming snail-like or non-existent. There is also the risk that States that have the weakest systems and processes, or those with a political axe to grind in a particular field, can and do control the EU mechanism by which decisions are made.

  We tentatively suggest that were a serious division of opinion to emerge with regards to a matter of considerable importance to a number of Member States, that some of those states might be tempted to "go it alone". This has happened before: the origins of JHA began with informal cooperation on foreign policy in 1970 under the rubric of "European Political Cooperation", and we foresee this as a possibility in the future, if progress is not made. As for the legal base on which that might happen, what is to stop some States forming a joint action group and enacting corresponding domestic laws thereby forcing the pace of change?

  Indeed, some would say this fragmentation is already starting: The Prüm Convention exists between the Kingdom of Belgium, the Federal Republic of Germany, the Kingdom of Spain, the French Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands and the Republic of Austria. The Convention was signed by the contracting parties in Prüm (Germany) on 27 May 2005 and describes itself as stepping up cross-border cooperation, particularly in combating terrorism, cross-border crime and illegal migration. Minister Ballin described the purpose of the Convention as follows [16 November 2006; emphasis added]:

    "The Prüm Convention is viewed by the Member States now participating as a pilot for cooperation, particularly in relation to the exchange of information, in preparation for European Union legislation in this area. The convention fits within the context and the objectives of the `Hague Programme' in the sense that it provides a foundation for the further elaboration of the principle of availability laid down in the programme. The convention stipulates that no later than three years after it enters into effect, on the basis of an assessment of the experience gained during its implementation, a legislative proposal must be submitted with the aim of introducing the regulations of the convention into the legal framework of the European Union. In the meantime, the convention is in principle open to the participation of other Member States of the European Union.

    The Prüm Convention does not represent a panacea in the field of judicial cooperation in Europe. It does however provide a clear direction of solution for challenges with which we are faced at EU level."

  If the UK is committed to enhancing cooperation in this field, then many of the measures proposed or envisaged (see Annex below) must be seen as advantageous for all. That being the case, the current Treaty arrangements are not ideal, and the Bar would tentatively support some easing of the decision-making process. However, we consider that activating the passerelle as set out in Article 42 TEU is the worst solution currently on the table. That is because it envisages the various Treaty changes, including the move from intergovernmental to Community measures; a switch from unanimity to QMV; no Member State right of initiative, without providing for any "compensatory factors" as built into the Constitutional Treaty and subject to safeguards of the type referred to in our answer to Q.2 below.

36.   Q.2:  What alternative action might improve decision-making? [see above]

  Again, tentatively, we would favour either the re-tabling of the relevant parts of the Constitutional Treaty, or the activation of the passarelle, BUT WITH various safeguards added on eg the emergency brake procedure; shared right of initiative etc. However, we would wish to be consulted by HMG on the legal and practical implications of any such proposals as and when they are put on the table.

37.   Q.3:  How can transparency and accountability at European level best be extended?

  In our experience, there is now much greater transparency than hitherto. The Commission and other institutions of the EU must be given the credit that is due to them for improving transparency. The Internet has clearly assisted, but this tool depends on all relevant information and documents being put into the public domain. A number of NGO's also act as "watch dogs". The Commission has also held numerous Experts' meetings on many matters relating to the criminal law, and it has produced many working papers that are of a high standard. In recent times however, those experts meetings have increasingly become platforms for Member States to make their political positions clear, sometimes at a cost to substantive debate and progress. That said, we understand that the Commission is alive to this problem, and intends to organise more practitioner-level workshops in the future, in tandem with the wider "experts" meetings. We consider it essential that EU policy in this field is informed by expertise from the "coal face" including from practitioners such as ourselves, as well as by academic research and government policies.

V.  Internal agreements between member states acting outside the framework of the EU

38.  We have touched on this issue but this is a matter largely outside our competence.

VI.  Current Developments

39.  We confine our remarks to Q.3: What are the implications of enlargement for JHA issues, including the impact of labour migration and confidence in new member states' justice systems?

  Enlargement, in the last few years, has been rapid and substantial. Twenty-five Member States must now strive to be unanimous—no mean feat. But the EU must now cater for many more legal and legislative systems: the range of standards, and differences between systems, is now very much greater than it was a few years ago. Meetings are necessarily large, but time consuming. As mentioned above, there have been anecdotal reports that the effectiveness of some expert meetings has diminished due to their size and lack of time to hear from NGO's. However, aside from the plans the Commission has to remedy this, it is arguable that the submission of carefully reasoned written representations is another way forward.

  Differences in the legal systems of Member States, and different standards that exist across jurisdictions, must not be minimised. Mutual recognition is rooted in confidence, and agreement to harmonise rules is only achievable where there is confidence that rules applied in one jurisdiction will be applied in a corresponding fashion elsewhere. Lack of confidence undermines cooperation, and this can only profit criminals. The temptation to set standards at levels that enable states to reach consensus is to be resisted in order to avoid a downward spiral that leads to a set of irreducible minimum standards. It is with this in mind that the CBA is disappointed that the work of the EU to secure a meaningful Framework Decision on procedural safeguards for suspects and defendants has not received the support it merits from Member States.

  That failure is all the more disappointing when seen in the light of the enthusiasm with which most Member States pursue agreement on measures in equally vital, but more populist, fields such as the fight against terrorism. It is our view that, to create a meaningful area of justice, freedom and security, the one cannot exist without the other.

Appendix A


    —  1-2/09/2006. General approach adopted by the Council—"General approach on the proposal for a Framework Decision on the [European Evidence Warrant]".[82]

    —  21/11/2005. Council Decision 2005/876/JHA on the exchange of information extracted from the criminal record. Official Journal L 322, 09/12/2005 p 0033-0037.

    —  20/9/2005. Council Decision of 20 September 2005 (2005/681/JHA) establishing the European Police College.

    —  24/02/2005. Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties. Official Journal L 076, 22/03/2005 p 0016-0030.

    —  24/02/2005. Council Framework Decision 2005/222/JHA of 24 February 2005 on attacks against information systems. Official Journal L 069, 16/03/2005 p 0067-0071.

    —  24/02/2005. Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property. Official Journal L 068, 15/03/2005 p 0049-0051.

    —  22/12/2003. Council Framework Decision of 22 December 2003 (2004/68/JHA) on combating the sexual exploitation of children and child pornography, Official Journal L 013, 20/01/2004 p 0044-0048.

    —  22/07/2003. Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector, Official Journal L 192, 31/7/2003 p 0054-0056.

    —  22/07/2003. Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence, Official Journal, L 196, 2003 p 0045-0055.

    —  18/06/2003. Council Decision 2003/659/JHA of 18 June 2003 amending Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime, Official Journal L 245, 29/09/2003 p 0044-0046.

    —  06/06/2003. Council Decision 2003/516/EC of 6 June 2003 concerning the signature of the Agreements between the European Union and the United States of America on extradition and mutual legal assistance in criminal matters, Official Journal, L 181, 19/07/2003 p 0025-0026.

    —  27/01/2003. Council Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law, Official Journal L 29, 05/02/2003 p 0055-0058.

    —  08/05/2003. Council Decision 2003/355/JHA of 8 May 2003 on the investigation and prosecution of genocide, crimes against humanity and war crimes. Official Journal L 118 14/05/2003 p 0012-0014.

    —  19/12/2002. Council Decision (2003/48/JHA) on the implementation of specific measures for police and judicial cooperation to combat terrorism in accordance with Article 4 of Common Position 2001/931/CFSP. Official Journal L 16 22/01/2003 p 0068-0070.

    —  28/11/02. Council Framework Decision (and Council Directive 2002/90/EC) on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence.

    —  19/7/2002. Council Framework Decision (2002/629/JHA) on combating trafficking in human beings.

    —  18/07/2002. 32002F0584. 2002/584/JHA: Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States—Statements made by certain Member States on the adoption of the Framework Decision. Official Journal L 190, 18/07/2002 p 0001-0020.

    —  26/06/2002. Council Decision of 13 June 2002 (2002/494/JHA) setting up a European network of contact points in respect of persons responsible for genocide, crimes against humanity and war crimes. Official Journal L 167, 26/06/2002 p 0001-0002.

    —  13/06/2002. Council Framework Decision of 13 June 2002 on combating terrorism. Official Journal L 164 , 22/06/2002 p 0003-0007.

    —  06/03/2002. Council Decision of 28 February 2002 (2002/187/JHA) setting up Eurojust with a view to reinforcing the fight against serious crime. Official Journal L 063, 06/03/2002 p 0001-0013.

    —  05/07/2001. Council Framework Decision of 26 June 2001 (2001/500/JHA) on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime. Official Journal L 182 , 05/07/2001 p 0001-0002.

    —  02/06/2001. Council Framework Decision of 28 May 2001 (2001/413/JHA) combating fraud and counterfeiting of non-cash means of payment. Official Journal L 149, 02/06/2001 p 0001-0004.

    —  22/03/2001. Council Framework Decision of 15 March 2001 (2001/220/JHA) on the standing of victims in criminal proceedings. Official Journal L 082, 22/03/2001 p 0001-0004.

    —  14/06/2000. Council framework Decision of 29 May 2000 on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro. Official Journal L 140, 14/06/2000 p 0001-0003.


    —  29/08/2006. COM(2006) 468 final. Proposal for a Council framework Decision on the European supervision order in pre-trial procedures between Member States of the European Union. [SEC (2006) 1080]

    —  29/08/2006. SEC(2006) 1079 Commission Staff Working Document Accompanying document to the Proposal for a Council Framework Decision on the European supervision order in pre-trial procedures between Member States of the European Union: Impact Assessment.

    —  22/12/2005. COM(2005) 690 final. Proposal for a Council framework Decision on the organisation and content of the exchange of information extracted from criminal records between Member States

    —  17/03/2005. COM(2005) 91 final. Proposal for a Council Framework decision on taking into account of convictions in the Member States of the EU in the course of new criminal proceedings

    —  13/10/2004. COM(2004) 664 final. Proposal for a Council Decision on the exchange of information extracted from the criminal record.

    —  28/04/2004. COM (2004) 328 final—CNS 2004/0113. Proposal for a Council framework decision on certain procedural rights in criminal proceedings throughout the European Union.

    —  14/11/2003. COM (2003) 688.(01). Proposal for a COUNCIL FRAMEWORK DECISION on the European Evidence Warrant for obtaining objects, documents and data for use in proceedings in criminal matters.

Evanna Fruithof

Rudi Fortson

22 December 2006

1.  "the ne bis in idem principle, enshrined in Article 54 of the Convention implementating the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, signed on 19 June 1990 in Schengen, must be applied to criminal proceedings brought in a Contracting State for acts for which a person has already been convicted in another Contracting State even though the Convention was not yet in force in the latter State at the time at which that person was convicted, in so far as the Convention was in force in the Contracting States in question at the time of the assessment, by the court before which the second proceedings were brought, of the conditions of applicability of the ne bis in idem principle."

2.  "Article 54 of the Convention must be interpreted as meaning that the relevant criterion for the purposes of the application of that article is identify of the material acts, as understood as the existence of a set of facts which are inextricably linked together, irrespective of the legal classification given to them or the legal interest protected;"

Accordingly on the facts in that case, the Court ruled that: "punishable acts consisting of exporting and importing the same narcotic drugs and which are prosecuted in different Contracting States to the Convention are, in principle, to be regarded as `the same acts' for the purposes of Article 54, the definitice assessment in that respect being the task of the competent national courts".

71   Note the terms of the proposed "Pru­m Convention", and see the speech of Minister Hirsch Ballin, Federal Minister for the Interior of the Republic of Austria, State Secretary for the Interior of the Federal Republic of Germany, at the Prum Seminar, 16 November 2006. Back

72   And see Informal JHA Ministerial Meeting, Tampere, 20-22 September 2006: "Next Steps in the Development of the Common European Asylum System". See also "Combating Terrorism and Organised Crime" [same meeting]. Back

73   See [2003] 4 Archbold News, 5. "EU Criminal law-turning fantasy into fact? " Professor Spencer wrote: "In principle, a properly constructed single European prosecution system might well provide better safeguards for defendants accused of trans-border crimes than a `horizontal' system made up of a patchwork of independent national systems, held together by a principle that each one recognises and enforces its neighbours' rulings and procedural steps. Not only is it possible for defendants to vanish down the cracks that exist between different national systems; the same thing can happen to defendants' rights." Back

74   See "The Spread of EU Criminal Law", Nicola Padfield and Katja Sugman, [2006] 7 Archbold News, page 5. Back

75   Proceeds of Crime Act 2002; sections 327-333. Back

76   See Steve Peers, "EU and Home Affairs Law", Longman (2000) page 184. Back

77   "The Presidency notes that discussions in the Council have showed it is proving difficult to move forward in the EU in areas such as mutual recognition in criminal matters and police cooperation. Agreement on the Commission proposal for a European evidence warrant was reached only after extremely lengthy negotiations. No progress has been made either in the last three years on basic minimum standards for procedural rights applicable throughout the EU. Discussions on a text providing for defining and condemning in the same way throughout Europe offences of racism and xenophobia are equally blocked for almost two years. Finally, discussions have not progressed on a Commission proposal intended to authorise further cross-border investigation and prosecution." [Report on the Review of The Hague Programme, JAI 650, para 13] Back

78   See "The Spread of EU Criminal Law", Nicola Padfield and Katja Sugman, [2006] 7 Archbold News, at p 7. Back

79   The court is entitled to receive evidence and information relevant to determinations the court is empowered to make under confiscation legislation: the weight of an item of information is a matter for the court. Back

80   In Van Esbroeck, the ECJ made two important rulings on matters of principle: Back

81   Compiling this list has not been straightforward. The list does not pretend to be definitive. Back

82   And see the proposal, 10 July 2006; COPEN 74. Back

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