Detailed comments on the Corpus Juris
Article 1Fraud in the Community budget
1. A number of witnesses drew attention
to the broad overlap between the offences in Part 1 of the Corpus
Juris and existing criminal laws in the United Kingdom. Particular
concern was, however, expressed at the notion of penalising conduct
that was merely reckless or grossly negligent (p56). Witnesses
pointed to the need to prove "dishonest intent" under
English law. The Criminal Bar Association pointed out the significant
change the Corpus would make (p49). The London Criminal
Courts Solicitors' Association (LCCSA) had reservations about
the inclusion of recklessness and was opposed to the inclusion
of gross negligence as the basis of criminal liability in this
context (p127). Scots law probably does not recognise that fraud
(a crime of intent) can be committed negligently and possibly
not recklessly. The Law Society of Scotland said that in practice
prosecutions for fraud are not brought unless the authorities
are satisfied that the accused acted deliberately (p53). The Faculty
of Advocates drew no comfort from the adverb "grossly".
In the context of the Civil Law it had proved difficult in practice
to discern any difference between "gross negligence"
and "negligence" (p52).
2. Liberty expressed concern at the over-broad
definition of certain of the offences, in particular those in
Article 1(1)(a) and (b) where there were requirements to provide
information. Their concerns were increased by the fact that recklessness
and/or gross negligence would be sufficient to establish mens
rea, both of which were excluded from the defence of mistake
in Article 11 (p124). The Association of Lawyers for the Protection
of the Financial Interest of the European Community (ALPFIEC),
however, said that there were many statutory offences in the United
Kingdom whereby it is an offence recklessly to provide to a public
authority information which is false in a material particular.
ALPFIEC saw advantages in Article 1 as drafted: "In so far
as the aspect of gross negligence will give the offence wider
application this may assist to widen the opportunity for extradition
and availability of bank information from third countries"
3. ALPFIEC observed that Article 1(1)(c)
might not be covered completely by any of the chief indictable
offences in English law. The case in question related to the conversion
of funds obtained for one purpose when the intention to divert
to another purpose was conceived after the funds had been legitimately
4. The Bar European Group (BEG) had concerns
about Article 1(2) (no offence where timely rectification is made).
This would appear to permit criminals to conspire or attempt to
commit fraud with impunity in the event that they decided not
to pursue their criminal enterprise. As Article 8 (conspiracy)
showed, this was not the intention of Article 1(2) but Article
8(2) would not cover attempts to defraud by individuals acting
alone. Referring also to Article 16, BEG said that there appeared
to be a lacuna for attempted crimes against the Corpus Juris
(p46). The Law Society of Scotland considered Article 1(2)
to be completely at odds with Scots law and attempted crime. Moreover
the lenient approach of Article 1(2) was inconsistent with the
strict liability imposed by Article 1(1) (p53).
5. The Government commented that Article
2 would extend the criminal law to conduct which in the UK is
mainly subject to civil penalties (p96).
6. Article 3(2) makes acts of passive or
active corruption (as defined) criminal offences if "they
harm or might harm the financial interests of the European Communities".
In the absence of an express test of foreseeability, LCCSA considered
the words "might harm" to be unacceptably wide (p128).
Article 4Abuse of office
7. The Government said that Articles 4-6
were drafted in broad terms, which could make them difficult to
apply in practice (p96). BEG also expressed concern at the width
and lack of precision in the definition of the offences in Articles
4 and 6 (p44). Liberty had a particular problem with Article 4(1)(b)
Article 5Misappropriation of funds
8. LCCSA did not favour making breach of
trust a criminal offence, especially when combined with a wide
definition of abusing powers "by harming those interests
Article 6Disclosure of secrets pertaining
to one's office
9. The Faculty of Advocates said that the
scope of the offence in Article 6 was a matter of concern. The
Faculty questioned the need for the imposition at Community level
of such all-embracing rules on secrecy (p52). LCCSA feared that
Article 6 might prevent rather than aid the detection of fraud
(p128). Liberty was also critical of the text of Article 6 and
the apparent failure of the Corpus Juris to provide any
protection for "whistle-blowers" (p124).
10. ALPFIEC was critical of Article 8 because
it defined "conspiracy" too restrictively. The need
to prove an organisation rather than an agreement might make the
offence incapable of successful prosecution. ALPFIEC also queried
the effect of Article 22(2) on this offence (p111).
Article 10Mens rea
11. Article 10 makes provision that the
offences set out in Articles 1-8 all require intention or fraud.
The Law Society of Scotland said that this made little sense in
terms of Scots law as intention was a prerequisite of fraud (p53).
LCCSA suggested that Article 10 should define "intention",
"fraud", "recklessness" and "gross negligence"
12. Article 11 provides that a mistake as
to the essential elements of the offence excludes fraud. Mistake
about the existence of a legal prohibition or its interpretation
excludes liability if the mistake was unavoidable. If avoidable
the penalty would be reduced. The Law Society of Scotland said
that this contrasted with the Scottish position where a mistake
as to the law would not normally constitute a defence or lead
to an automatic reduction of the penalty but might, if bona
fide, be taken into account in assessing the penalty. A bona
fide misunderstanding as to the facts might constitute a defence
(p53). Justice said that Articles 10 and 11 were "very worrying
as they appear to extend criminal liability far too far and to
leave virtually no room for a defence of innocent involvement
to succeed" (p122).
Article 13Criminal liability of the head
of a business
13. Both Justice and Liberty were critical
of the scope of Article 13 (pp122, 124). The Criminal Bar Association
said that Article 13 seemed to exclude any element of mens
rea to the extent that an individual might be criminally liable
merely because he failed to supervise a dishonest subordinate
properly, even though he had not himself behaved dishonestly (p49).
BEG thought that Article 13 (which extends criminal liability
to the head of a business) was contrary to the established rule
that crimes carrying substantial terms of imprisonment were not
to be attributed to individuals without proof of complicity. Further,
Article 13 extended criminal liability to "any other person
with powers of decision or control within the business".
That could encompass any individual, no matter how junior the
managerial level (p44). The Law Society of Scotland expressed
concern that Article 13 might have an adverse effect on the operation
of many businesses. The defence provided was very limited (p54).
Justice said that Article 13(2) "would seem to contemplate
making a personnel director liable for recruiting someone who
commits a fraud on the Community budget!" (p122).
Article 16Aggravating circumstances
14. Article 16 specifies certain aggravating
circumstances which make manadatory a custodial sentence. The
Law Society of Scotland was critical of the appropriateness of
such a draconian rule at a time when Scotland was trying to move
away from mandatory penalties (p54).
Article 18Status and structure of the European
Public Prosecutor (EPP)
15. Article 18(5) imposes a duty on national
public prosecutors to assist the EPP. The Law Society of Scotland
wanted to know what implications such a duty would have on the
prosecutorial independence of the Lord Advocate and the Crown
Office and the operational effectiveness of the Procurator Fiscal
Article 19Seisin of the EPP and opening
16. The Law Society expressed concern at
the powers given to the EPP to close cases by way of a settlement.
Though the Inland Revenue and Customs and Excise had similar powers
in relation to tax and VAT offences, such offences were different
from those in Articles 1-8 of the Corpus and it was nevertheless
the policy of those bodies always to prosecute offences involving
professionals. The Law Society said: "There must be a danger
that the fraudster will be attracted towards defrauding the Community
budget rather than other victims if he thinks that he will be
able to `buy his way out of trouble'". There was also the
risk of disparity of treatment of those accused of non-Community
fraud, which it would be impossible to justify (p57). The Association
of Chief Police Officers in Scotland expressed similar concerns
about the EPP's discretion under Article 19.4(b) (p116).
Article 20Powers of investigation of the
17. The Law Society of Scotland drew attention
to the apparent inconsistency between Article 20(3)(g) and Article
1(2) (p54). The Association of Chief Police Officers in Scotland
noted that the investigatory powers conferred on the EPP were
not dissimilar to those already enjoyed by the police in Scotland.
The powers were, however, stated in rather general terms in Article
20(3)(a)-(g). There were instances where they should be stated
with greater precision and certainty, in particular the powers
for telephone interception (p116). The Government noted that interception
of telecommunications would be authorised by the judge of freedoms.
This would be a significant departure from the current position
where interceptions are authorised by the Secretary of State (p97).
The Law Society expressed concern at this and at the possibility
that intercepted material might be misused (p57).
Article 21Closure of the preparatory stage
18. The Faculty of Advocates drew attention
to an apparent overlap between Article 25(3) and Article 21(3),
the functions of the judge of freedoms and the competent national
legal authority in relation to checking the lawfulness of proceedings
and "seising" the Court (p51).
Article 22Bringing and terminating a prosecution
19. BEG noted that Article 22 referred to
a prosecution being extinguished on the death of the defendant
and that once a prosecution has been extinguished a defendant
cannot be pardoned or granted an amnesty. BEG considered this
to be incongruous given the fact that if a defendant dies before
a successful prosecution no guilt has been proven and he would
benefit from the presumption of innocence (Article 31) (p47).
The Law Society of Scotland was critical of the five year time
bar imposed by Article 22. The limitation is calculated from the
day when the offence is committed. But Article 22 made no provision
for continuing offences or for complicated frauds which may not
come to light until many years after they are perpetrated. The
Law Society of Scotland also queried what the effect of the settlement
of the case (under Article 22(2)(b)) was. The perpetrator of the
fraud has to admit his guilt but it was not clear whether a settlement
counted as a conviction (p54).
Article 24Competence ratione loci
20. ALPFIEC pointed out the EPP's powers
to collect evidence and arrest were restricted to the European
area (ie the territories of the Member States). Articles 20 and
24 (1)(1) did not apply to witnesses and evidence in third States.
Existing rules on mutual assistance and extradition would apply
(Article 24(2)). ALPFIEC queried whether the Community had the
necessary competence to negotiate to conclude its own mutual legal
assistance treaties with third States. Moreover the EPP could
not offer reciprocity. ALPFIEC queried whether Member States could
use existing mutual assistance arrangements with third States
when the investigation in question was not one which they were
undertaking in their own right (p113).
21. The Criminal Bar Association noted that
Article 24(1)(b) made reference to Article 20(2)(e), a subsection
which did not exist (p49).
Article 25Preparatory stage
22. The Law Society said that it was not
clear whether safeguards under national law (such as those under
the Police and Criminal Evidence Act) would apply in relation
to the exercise of coercive powers, search and seizure, by the
EPP. The Law Society was concerned that the EPP might only be
bound to apply ECHR rules (p58).
23. ALPFIEC was concerned lest Article 26
might produce delays in proceedings, because parties might contest
the jurisdiction and seek a ruling for the European Court of Justice.
They were also concerned that it might lead to forum shopping
and discrimination, proof under a civil law system being easier
and quicker to achieve than those in the United Kingdom. ALPFIEC
believed that judges in the United Kingdom would invoke Article
35 in order to ensure that all national safeguards (such as the
exclusion of evidence containing unacceptable hearsay or opinion)
unstated in the Corpus Juris were available to the defence
(p113). The Faculty of Advocates said that the Corpus Juris
appeared to have been drafted with reference to States having
a single legal system. It did not make specific provision for
the allocation of jurisdiction within the United Kingdom. The
Faculty believed it to be inappropriate for the accused to be
tried anywhere else if the criteria in Article 26(2) pointed towards
Article 27Appeal to national courts
24. Article 27 provides for appeals and
speaks of the case "being retried, in law and in fact, by
a higher court of the State where the conviction was pronounced
at first instance". Professor Spencer said that what the
draftsman had in mind was something more than simply an appeal
on points of law. What was envisaged was a rehearing of the case
on the merits rather in the way that the Court of Appeal Civil
Division hears an appeal in this country (Q 47). BEG assumed that
in England and Wales appeals would go to the High Court. Otherwise,
there would be serious difficulties and delays were the Court
of Appeal bound to hear both argument and evidence on automatic
retrials (p46). The Faculty of Advocates queried whether there
should be an extensive right of appeal on points of fact. The
Faculty could see no justification for altering the nature and
structure of appeals for a limited category of case (p52). Justice
questioned the point of setting up a framework of separate first
instance courts to deal with Corpus Juris cases if the
right of appeal was for a full rehearing to a national court (p123).
25. Article 27 provides that the prosecution
will have a right of appeal. The Government pointed out that English
law does not, with certain limited exceptions, enable the prosecution
to ask a higher court to review a decision of the trial judge.
The Government recognised that it was important that the conduct
of trials is seen to be both fair and balanced. It was currently
examining the law in England and Wales on prosecution rights of
appeal against stays of proceedings and judge directed acquittals.
Article 28Appeal to the European Court
of Justice (ECJ)
26. Liberty welcomed the express provision,
in Article 28, for the jurisdiction of the European Court of Justice
(p124). LCCSA thought the Article could go further and contended
that the defence should have rights of appeal on the application
of the Corpus or conflicts of jurisdiction to the European
Court of Justice (p128).
Article 29Rights of the accused
27. The Government pointed out that Article
29 established the rights of the accused to remain silent and
the right to a lawyer of his choice but does not state whether
inferences could be drawn from silence(p97). As regards Article
29(3), LCCSA queried whether the effect would be to change the
English rule that a defendant should not be questioned from the
time he is charged (p128).
Article 30Rights of the Commission as partie
28. Article 30 would give rights to the
Commission as partie civile. BEG said that this would be
a procedural innovation which it was not difficult to see could
be viewed as highly political in some respects (p45). The Law
Society of Scotland feared that the result would be that there
would be a number of different parties to the proceedings with
competing and different interests. Both the Society and the Faculty
of Advocates took the view that there would potentially be a very
long and cumbersome procedure. The Faculty said that there was
no reason why the Commission should not simply liaise with the
prosecutor in any case where a compensation order was thought
appropriate to ensure that the full facts were placed before the
Court (pp55, 52).
Article 31Burden of proof
29. A number of witnesses criticised Article
31. While it made clear that the prosecution bore the burden of
proof it gave no guidance as to the standard of proof (p128).
The Law Society of Scotland said that one consequence was that
an individual might evade responsibility in one country while
he would be jailed in another for exactly the same offence (p55).
ALPFIEC thought that, applying Article 35, the United Kingdom
standard would apply. The offence would have to be proved beyond
reasonable doubt (p113). Liberty considered it essential that
the standard of proof be expressly stated in the Corpus Juris
to be "beyond reasonable doubt" (p125).
Article 32Admissible evidence
30. Article 32 sets out rules on the admissibility
of evidence. LCCSA was critical of Article 32(1)(a) because it
made no provision for the presence of the defendant at the examination
of witnesses. That was desirable if the defendant has legal representation
and essential if unrepresented (p128). Article 32(1)(d) makes
provision for written evidence from an accountant appointed by
the court. The Government pointed out that such evidence would
not normally be admissible in courts in the UK. The Government
took the view that creating different rules of evidence for different
types of case, depending on the offence involved, would complicate
the investigation and prosecution of fraud (p98). The Law Society
and the Faculty of Advocates were critical of the notion of a
court-appointed accountant (QQ 198, 201). LCCSA said that the
Corpus should provide that the defendant should be able
to challenge such written evidence, if necessary by obtaining
expert advice of his own (p128). Liberty was concerned that Article
32(2) might lead to "forum shopping" by the prosecution
to the detriment of the interests and fundamental rights of the
Article 33Exclusion of evidence illegally
31. Under Article 33 evidence illegally
obtained must be excluded. Both the Criminal Bar Association and
the Law Society pointed out that this would be at variance with
English law. The Association considered that the Article might
impose an unacceptable fetter on judicial discretion (p49). The
Society said that any conflict between the admissibility of evidence
in the prosecution of non-Community budget offences and under
the Corpus Juris would bring criticisms of the national
system (p58). Mr Brown (Crown Office) queried whether Article
33 properly reflected the jurisprudence on Article 8 ECHRa
breach of the latter did not mean exclusion of the evidence in
question (Q 153).
Article 34Publicity and secrecy
32. Liberty was concerned at the apparent
reversal of the presumption for a public hearing before the judge
of freedoms contained in Article 34(2), making publicity subject
to the consent of all parties, and in Article 34(3), which referred
to the giving of "judgment". Liberty said that it was
of vital importance that there is a presumption for public hearing
covering the whole of the judicial process subject to limitations
permissible under Article 6 of the ECHR (p125).