Select Committee on Home Affairs Written Evidence

17.  Supplementary memorandum from Open Europe


  1.  We believe that there are considerable advantages to be gained from increasing cooperation between member states' various agencies in the justice and home affairs sphere. However, we fear that to attempt to harmonise member states' various systems is unwise and—given the diverse nature of these systems—unachievable.

  2.  It is our view that a country's criminal justice system forms a fundamental part of its national constitution and is an essential part of the relationship between the individual and the state. The EU's role should be limited to aiding cooperation between member states' systems and leave directly elected national parliaments to determine the substantive criminal law and procedure of their country.

  3.  The process of mutual recognition of judgments was supported strongly from the start by the UK Government as a means to stave off pressures for full scale harmonisation of criminal law. However, there are two key problems with this approach: the poor drafting of laws which has led to a lack of clarity, and the inherent mistrust between member states' vastly different judicial systems. Given these problems, we believe that a process of mutual recognition will inevitably give way to pressures for full scale harmonisation in the near future, a process we would view as extremely problematic for common law countries such as the UK and Ireland.

  4.  Given the widespread criticism of the judicial systems in Bulgaria, Romania and also Croatia, measures such as the European Arrest Warrant and the European Evidence Warrant could be open to abuse. It is also highly regrettable that the 2004 EU Directive on Free Movement, which came into effect in May this year severely curtails the Government's ability to expel foreign criminals. This is made all the more concerning by the high levels of organised crime in the accession countries.


  5.  The principle of mutual recognition of criminal laws and procedure is problematic. We argue that the shortcomings of this approach are already leading to calls for a greater degree of harmonisation in the EU. Furthermore, this process has a precedent in recent EU history. Mutual recognition was intended to be the cornerstone of the Single Market, but has given way to pressures for the standardisation of EU member states' health and safety standards, product regulations and labour laws to name but a few examples.

  6.  The first problem with mutual recognition, exemplified by the European Arrest Warrant (EAW), is a lack of clarity and legal certainty.

  7.  This measure gives a list of offences to which it applies. Put simply, if an offence falls within this list then member states' judicial authorities are required to recognise the request to arrest the suspect.

  8.  The list of offences is unfortunately vague. It is unclear which crimes do and which crimes do not fall under the categories of "racism and xenophobia", "sabotage", "swindling" or "racketeering and extortion". For example, the offence of racketeering is not even commonly recognised in many European jurisdictions. There is also a problem in so much as the labels given under the different language versions of the EAW do not always correspond. The English version lists an offence of "computer-related crime", in the French version this is described as cybercriminalité while in the Dutch version it is informaticacriminaliteit. The scope of "computer related crime" would appear to be much wider than the French or Dutch versions. [122]

  9.  Compounding this problem, EU ministers agreed to abandon the traditional safeguard of dual criminality. This would not have posed such a problem if the list of offences under which an EAW could be issued was restricted to a small number of well recognised offences, but this is not the case.

  10.  We believe that this lack of clarity combined with the abandonment of dual criminality will inevitably lead—at some point—to EU citizens being extradited to other member states for offences that are not crimes in their own country.

  11.  In this case, as the House of Commons European Scrutiny Committee has argued, EU lawmakers will be faced with a dilemma. Either they accept that their citizens will be prosecuted for offences which are not recognised under UK law, or they will have to look to standardise large numbers of offences across the EU. [123]

  12.  We believe that if and when high profile cases of this sort occur in the future there will be considerable pressure from some quarters for a more far reaching process of harmonisation to begin.

  13.  Another major problem with mutual recognition of judgements is the radical difference in approach between the various systems. The most famous and obvious one being the difference between the inquisitorial system used by much of continental Europe and the common law adversarial system.

  14.  Countries such as France are wary about adapting their procedures to become more like "Anglo-Saxon" systems, which they see as less likely to achieve convictions. On the other hand, UK practitioners are sceptical about whether the continental system affords enough protection for the suspect.

  15.  This lack of trust between the various systems is often cited in EU Commission proposals as a real stumbling block to mutual recognition. The EU Commission's favoured method to improve this is to set minimum standards to be observed across the EU. We believe that not only is this often ineffective, but that it is simply the first step in a gradual process of harmonisation.

  16.  The proposal on setting minimum standards for procedural rights throughout the EU provides an interesting case study for this point. Known as the "Framework decision on certain procedural rights in criminal proceedings throughout the European Union", it sets out to create minimum standards for rights for suspects across the Union because in the EU Commission's opinion "divergent practices run the risk of hindering mutual trust and confidence which is the basis of mutual recognition".[124]

  17.  Both UK EU select committees have expressed concern over whether the EU treaties actually provide a legal basis for the proposal. The justification for the framework decision, given by both the EU Commission and the UK Government is that it is necessary to improve mutual recognition and mutual trust, and therefore it falls under Article 31(C) of the Treaty on European Union.

  18.  During the House of Lords EU Select Committee inquiry into the framework decision Lord Neill argued that this was an "enormously broad basis" which "carries almost across the board. It is hard to think of anything to which that proposition would not apply." [125]

  19.  The House of Lords inquiry concluded that if the Commission and UK Government's reasoning for the legal base was accepted "there is the risk that this approach might lead, over time, to the incremental unification of criminal procedure throughout the Union." [126]

  20.  The UK Government's EU legal adviser, Kevan Norris, told the House of Lords EU Select Committee inquiry into the framework decision that it would not apply across the board. He argued that "the restriction on the Community legislator is in terms of the test of necessity to improve mutual recognition".[127] In other words, the EU will only propose minimum standards in areas of criminal justice if it believes it will improve mutual trust and therefore mutual recognition.

  21.  We are concerned however that this test is not rigorous enough, and that this process of unification will take place even if the new minimum standards do not increase mutual trust between member states' judicial systems.

  22.  The framework decision on procedural rights in criminal proceedings is again a good example of this. It has been criticised by numerous different groups for setting extremely low standards. Such is the disparity between national systems that unless a lowest common denominator approach is taken it is virtually impossible to find agreement. Thus the procedural rights proposed by the directive are lower than the rights already granted in most member states.

  23.  The Commission has also been criticised for failing to undertake an evaluation of the benefits that would accrue from passing the framework decision. As one academic has argued, "one can find no trace of the Commission's having actually looked for concrete examples of where lack of mutual trust has caused difficulties for the operation of the principle of mutual recognition." It has also been argued that practitioners are not convinced that the choice of rights which will be harmonised "addresses the causes of the doubts that practitioners and suspects actually have in relation to the criminal justice systems of other Member States." [128]

  24.  To summarise, the legislation is not achieving the goals that are supposed to justify it.


  25.  The EU Commission has also begun putting forward proposals for the full scale harmonisation of member states' criminal law at quite an alarming rate. Since the ECJ ruling in Case C-176/03, which said that the European Commission is able to propose criminal offences and penalties in the environmental field, the Commission has claimed the competence to set criminal law across all areas which come under the first pillar or are necessary to fulfil one of the four fundamental freedoms in the Treaty of Rome.

  26.  Thus the Commission has already proposed a number of new EU-wide offences on firearms trafficking, employing illegal immigrants, a new timeshare directive, and the enforcement of intellectual property rights. All of these would be passed through the "community method". They are initiated by the Commission, can be amended by the European Parliament, decided by qualified majority voting and would fall under the jurisdiction of the ECJ. Importantly, the UK's opt-in procedure would not apply to these decisions. Thus if the UK opposed a particular measure but a majority of other member states agreed on it the UK would have to write the new offence or penalties into its national law.

  27.  While member states are resistant to the idea of allowing the EU to be overly prescriptive in defining offences and setting penalties, preferring rather that it set a framework for them to work within and choose how to apply, the European Commission has stressed that it believes "it is necessary to direct the action of the Member States by specifying explicitly (i) the type of behaviour which constitutes a criminal offence and/or (ii) the type of penalties to be applied and/or (iii) other criminal-law measures appropriate to the area concerned".[129]

  28.  The Commission has also issued a number of proposals for harmonisation of criminal procedure in areas such as bail and the presumption of innocence. These proposals have not been universally well received, and especially not by countries with common law systems.

  29.  The Irish Justice Minister Michael McDowell has said that many EU member states do not seem to understand the "difficulties that some of their concepts pose for common law systems".[130]

  30.  In his explanatory memorandum on the Green Paper on the presumption of innocence UK Attorney General Lord Goldsmith argued that "There are major differences between our common law systems and the civil law systems which characterise much of the rest of the European Union. A legislative approach designed to harmonise systems across EU Member States would be likely to require significant changes to our primary legislation for which we see no need. We trust that responses to the Green Paper will show the unwisdom of pursuing legislative measures at this time." [131]

  31.  Such are the differences between legal systems across the EU, we think that it would be unwise to begin a systematic programme of harmonisation. As Richard Plender QC, who represented the UK in Case C-176/03, remarked to us during an interview, "I think there is an enduring danger of trying to harmonise aspects of legal systems which are themselves fundamentally diverse... we think we are harmonising but quite often we are aligning points of similarity in fields of difference".

  32.  Furthermore, it is quite simply undemocratic for criminal laws to be set anywhere other than by national institutions. One of the basic functions of a national democracy must be to decide which types of conduct are and are not acceptable, and how the unacceptable offences should be punished. Undoubtedly these norms will vary between countries and the priorities set by their societies. The procedures which are set in place to protect innocent citizens from improper prosecution are so inextricably linked to a country's historical and political development that it is inconceivable that it is correct for them to be altered by any body other than their directly elected representatives.

  33.  If the Westminster parliament is unable to amend criminal laws as it sees fit because they have already been harmonised at the EU level, or if it is forced to create a new offence because the Government has been outvoted in the Council of Ministers, this strikes us as a critical loss of national autonomy and one that will prove to be extremely unpopular with the British electorate.

  34.  The need for precision and proper scrutiny of criminal law and procedure demands that it is best decided by national parliaments where citizens have a much better chance of influencing legislation in order that it reflect their priorities. It should not be decided behind closed doors, through a process of horsetrading, by politicians who are largely unaccountable to the UK public.


  35.  The problems in the justice systems of new EU member states, particularly Romania and Bulgaria are well documented by numerous sources, including reports for the Commission.

  36.  This has implications for the functioning of the European Evidence Warrant and the European Arrest Warrant, given that—for instance—the UK would be obliged to recognise requests for evidence or extradition from judiciaries that are still materially affected by corruption. The Commission has noted Bulgaria still needs to make efforts towards "removing ambiguities concerning the independence of the judiciary and the accountability of the judicial system." [132]Future enlargements will see this problem re-emerge—Croatia, is the most likely candidate for the next EU accession, but the Commission have said the country "is still some way from enjoying an independent, impartial, transparent and efficient judicial system".[133]

  37.  The EU Free Movement Directive (2004/38/EC) has raised serious concerns on JHA issues, particularly as regards EU enlargement. In very simple terms, this Directive makes it far more difficult for national governments to expel EU criminals, stating that "Expulsion orders may not be issued by the host Member State as a penalty or legal consequence of a custodial penalty" to EU nationals. This has already undermined the Government's stated policy of repatriating foreign criminals, with the Home Secretary recently telling the Commons that attempts at deporting EEA nationals had "been defeated consistently in the courts." [134]Given high levels of organised crime in Romania and Bulgaria, this inability to expel potentially dangerous criminals is extremely concerning for the UK and other member states.

  38.  We argue that the UK Government should renegotiate this aspect of the Free Movement Directive, and also ensure that criminals who have been expelled cannot use their rights to free movement to re-enter the UK.

Paul Stephenson

15 November 2006

122   The EAW Framework Decision between Past and Future, Nico Keijzer, Centre for European Policy Studies. Back

123   European Scrutiny Committee, Seventeenth Report, January 2002. Back

124   Green Paper on Procedural Safeguards for Suspects and Defendants in Criminal Proceedings throughout the European union (COM(2003) 75 final). Back

125   House of Lords EU Select Committee, Procedural Rights in Criminal Proceedings, Q 259, February 2005. Back

126   House of Lords EU Select Committee, Procedural Rights in Criminal Proceedings, Paragraph 41, February 2005. Back

127   House of Lords EU Select Committee, Procedural Rights in Criminal Proceedings, Q259, February 2005. Back

128   Shooting from the Hip: Proposed Minimum Rights in Criminal Proceedings throughout the EU, Robin Loof, European Law Journal, Vol 12, No 3, May 2006, pp 421-430. Back

129   Communication from the Commission to the European Parliament and the Council on the implications of the Court's judgment of 13 September 2005 (Case C-176/03) Commission v Council". Back

130   "The Criminal Law Competence of the European Community", House of Lords EU Select Committee, Q198, July 2006. Back

131   7 June 2006. Back

132   MEMO/06/345 (26.09.06). Back

133   EU Commission, Progress report on Croatia (08.11.06). Back

134   Hansard (9.10.06). Back

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