Memorandum by Mr Torquil Dick-Erikson
I might say by way of prefacing my remarks and
introducing myself, that I am a British citizen, I have been living
in Italy for the last 38 years, and have been studying the area
of comparative criminal justice and procedure for the last 25
years, having been published in various papers and journals and
spoken from various platforms from time to time. My name has been
cited in debates in the Houses of Parliament four times, in particular
in January 2003 when Nick Hawkins MP read aloud a 6-page briefing
paper I had prepared on aspects of Italian criminal procedure,
in Standing Committee, debating the European Arrest Warrant. In
April 1997 I was invited as a guest of the European Commission
to a seminar in Spain where they unveiled the Corpus Juris project
for a single system of criminal justice to be enforced throughout
the EU; subsequently I contributed written evidence to the HoL
Report on Corpus Juris (9th Report, 1998-99, HL Paper 62—pp
117-119).
The evidence I wish to submit to you is as follows—very
briefly:
(1) The new Reform treaty will ensure that
criminal justice is eventually brought under the decision-making
powers of the central authorities of the EU, and JHA will lose
its present status as an exclusively national prerogative.
(2) There are two broadly, and profoundly,
different families of systems of criminal justice in Europe today—the
inquisitorial system, prevalent throughout the continent of Europe,
and the adversarial system, which is in use only in the "island
jurisdictions" of the UK, Ireland, and Malta.
(3) One problem we have is that little is
known about continental systems of criminal justice. It is an
area that has hardly ever been studied. There are no university
chairs of comparative law that specialise in comparative criminal
procedure, anywhere in the British Isles.
(4) The proceedings during the seminar in
Spain and an examination of the Corpus Juris proposal,
as well as the demands put forward by Commissioner Franco Frattini
last year, show clearly that there is a firm determination on
the part of the EU's central bodies to set up a single system
of criminal justice for the whole of the EU, based on the Inquisitorial
model. A very recent report says that Signor Frattini wishes to
start enacting those parts of the Treaty concerning security and
justice even before it has been ratified
see <http://euobserver.com/9/25117/?rk=1>.
(5) Corpus Juris effectively erases
the legal safeguards of individual freedom which have been at
the basis of our system since Magna Carta, viz:
(6) Article 26.1 of Corpus Juris provides
that cases shall be heard by professional judges, excluding "simple
jurors and lay magistrates". This is how cases are heard
and tried all over the continent (where there are "lay assessors"
they retire to the jury-room with one or more professional judges,
so the influence of the "judge on the jury" can be very
heavy indeed and is exercised in secret). So there is an end
to trial by independent jury.
(7) Article 20.3.(g) grants powers—denominated
powers of investigation—to the European Public Prosecutor
to order the incarceration of a suspect, for a period of
up to six months, renewable for three months at a time. This "order"
is countersigned by the so-called "judge of freedoms"
on the continental Napoleonic model. These two work together in
tandem on case after case, and are colleagues and members of the
same professional brotherhood—the career judiciary, from
which the defending lawyers are excluded. The decisions on pre-trial
detention are taken in the privacy of the judge's office,
and there is no obligation on the "judge of freedoms"
to examine any evidence that his colleague may, or may
not, have collected to show that there be a prima facie
case to answer. So there is an end to Habeas Corpus.
(8) Article 27.2 provides quite simply that
the Prosecutor may appeal against a verdict of acquittal. So there
goes our protection against double jeopardy.
All these changes will irk the common sense
of fair dealing and justice to which our fellow-citizens have
been accustomed for centuries. They will appear oppressive and
unjust. They will however not appear unusual or strange to our
new "fellow-citizens" on the continent, for they have
never known anything different. There is this deep cultural difference
between the two sides of the English Channel, and since they are
in the far greater majority, in a union between the two their
system will eventually come to be imposed on us, and our system
will be effaced.
There is another highly significant difference
between our traditions and theirs, and it is in the area of policing.
Ever since the police was first instituted by
Sir Robert Peel, nearly 200 years ago, our police have always
been:
(a) locally recruited and locally accountable;
(c) non-military in their nature and their
organisation, since each single constable is a self-propelling
law enforcement officer, whose prime duty is to apply the law;
and
(d) the underlying ideal to which our policing
policies aspire is "policing by consent". We set high
store on the ordinary members of the public willingly assisting
the police by stepping forward and volunteering information.
On the continent, in contrast, the police forces
are:
(a) centrally controlled, by central government,
and moved around the country so they are, more often than not,
not local people in the area where they operate;
(b) always carrying lethal weapons at all
times;
(c) military, stationed in barracks, equipped
for battle against a hostile populace. Their prime purpose is
to maintain public order; and
(d) our notion of "policing by consent"
is basically unknown. The police are designed as an instrument
whereby the central government imposes its will on a population,
parts of which are expected may be hostile. It is closer to what
we would see as an army, than a police force.
In line with the Napoleonic tendency to uniformity
and centralisation, not only has Europol been set up, but also
the less-well-known European Gendarmerie Force, which has been
drilling in a base in Vicenza, Italy, since around 2003. These
are specialised riot batallions. Even less well known is the fact
that on 18 October last the five countries participating in the
EGF signed a Treaty in Velsen, Holland, under the auspices of
the Portuguese presidency, establishing the EGF itself on an official
footing. Under this treaty, they may be deployed in any third
state with the agreement of that state (art 6.3)—and presumably
this means just the agreement of the government of the day of
that state, which will not have had to consult its Parliament
far less its people on such a momentous step. Under the Reform
treaty, we will see that with JHA passing under the jurisdiction
of the ECJ, any supposed opt-out for Britain will not last, so
that it will be possible to deploy the EGF by majority decision
at the centre, which will over-rule any lack of consent given
by the state concerned. We can therefore expect to see them at
some stage on the streets of British cities.
Any opt-out will be subject to an opt-in to
be decided swiftly and easily by the British Government of the
day without recourse to Parliament far less to the people. And
once the immunity of an opt-out has been relinquished it may never
be recovered, under the well-known ratchet mechanism provided
by the doctrine of acquis communautaire.
The announcement of this Treaty of Velsen by
the Portuguese Presidency spoke of the possibility of drawing
recruits not only from Member States but also from candidate states
(art 44), and mentioned with satisfaction that Turkey had shown
interest in providing recruits to this nascent force.
I attach a paper I wrote in August on the Eurogendarmerie,
with two photographs taken from their own official website: <www.eurogendfor.eu>.
The announcement of the new treaty of Velsen
is on this page:
<http://www.eu2007.pt/UE/vEN/Noticias_Documentos/20071015MAIEurogendfor2.htm>.
These websites, created by organs of the EU
itself, supply vivid documentary evidence of the truthfulness
of what I have written.
9 November 2007
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