17. Supplementary memorandum from
Open Europe
BACKGROUND
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.
MUTUAL RECOGNITION
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.
HARMONISATION
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.
IMPLICATIONS OF
ENLARGEMENT FOR
JHA ISSUES
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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